202103.30
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Disguised Software Audit Clauses

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Agreements often contain clauses allowing the parties to review books and records, “Books and Records” clauses. These are often boilerplate clauses included in agreements without much consideration from the contracting parties. When a Books and Records clause is used in a software agreement without a software audit clause, it can lead to serious consequences. It…

202103.25
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Software Audits: The Importance of Timely Completion of Post-Settlement Obligations

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Software audits initiated by software publishers or representative entities, such as the Business Software Alliance (“BSA”) and Software & Information Industry Association (“SIIA”), are often resolved by an out-of-court settlement. The carefully crafted settlement agreements release an audited company from liability, contingent on the following obligations: 1) The accuracy of the submitted audit results, 2) Payment of…

202103.16
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Releases of Liability as Part of Licensing Deals – How Hard to Push?

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Software publishers know that the vast majority of their customers are, to varying degrees, out of compliance with the terms of license agreements governing their use of the publishers’ software products. Especially in larger enterprises, managing and maintaining a company’s license position is a daunting and maybe even impractical task, especially given the increasingly complex…

202103.02
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Managing Risks in the Software Audit Process

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It has been said that software is the new oil. It fuels the information revolution. And in this metaphor, software audits are the meters that measure the flow—and extract maximum revenue for software makers. The auditors arrive on your company doorstep to “true up” your license and make sure you’re paying for all the software…

202102.19
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When an Audit is Not an Audit, Think Twice About Participating

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In the software licensing world, all audits are not created equal. On one hand are the “true,” contractual audits. Here, the applicable license agreement gives the software publisher the right, usually upon notice and sometimes limited in frequency or scope, to demand access to the systems where its products are installed or a report of…

202102.05
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Don’t Take Your NDA for Granted During Software Audits

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Many businesses expend far too little effort in securing appropriate non-disclosure agreements during software audits. Some businesses even wholly overlook NDAs during the audit process, believing that they have no leverage to demand reasonable protections for the information that the auditors will ask them to provide. This is a mistake that can cost a company…

202102.03
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Control Software Audit Disclosures By Keeping an Eye on the Audited Entity

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In many cases where we are retained to assist companies targeted for software audits after software-deployment data already has been submitted to the auditing entities, we have the regrettable obligation to let our clients know that they have disclosed too much. Over-disclosure can cost a company millions of dollars, and it is typically very difficult…

202101.05
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Not All Software Audits Protected By Privilege

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Companies faced with a demand for a software audit from a software publisher or an entity such as the Business Software Alliance or Software & Information Industry Association are increasingly turning to their own internal IT departments or hiring technology consultants to conduct software audits, the results of which may be discoverable in future litigation….