An often not outspoken question is, if software licensors can be expected to trust an escrow agent recommended by the licensee and vice versa.

FGE acts as a neutral party - without bias towards on of the parties. We work under the conditions agreed upon by all parties signing the escrow contract. Our business and reputation would be without success if we failed in this area. This is one of the reasons why it is not recommended that attorneys act as an escrow agent - with the obvious conflict of interest.

Another reason is that attorneys do not verifiy the material and would store an unverified media, perhaps containing unusable material.

Some licensors may hesitate to establish an escrow account for fear that escrow negotiations would only lengthen and complicate the sales process, which is in most cases not even short. However, licensors that offer escrow protection to their customers up-front may actually help their own cause!

By offering escrow as a value-added service to their licensees, licensors can quickly move away licensee`s concerns about sustaining technical support or other concerns.

Another advantage for the licensor is that he can have more control over the terms and conditions of the escrow agreement, if the ready-made contract is only waiting for the signature of his licensee.

Next question is what happens, if the escrow agreement is moot ( in discussion, esp. of a hypothetical legal case) and the licensee can be blocked from gaining access to the source code, if the licensor objects to the release request of the licensee.

Because of its neutrality FGE do allow for licensors to oppose a licensee`s release request. But this does not force the licensee into lengthy court proceedings before gaining access to the code.

A low-cost, quick and decisive alternative to the courts is arbitration.  As soon as FGE receives contrary instructions from the licensor not to release the escrowed material, parties of the agreement are notified, that there is a dispute to be solved by arbitration.

Another last concern is that source code released from escrow is unusable and more than likely be useless to the licensee because the version of the software actually in use does not match what is maintained in the escrow deposit.

First, the deposit must be updated whenever a milestone of the escrowed technology is released. Second, a list of technical maintenance personnel from the licensor can be included as part of the deposit. If the licensor goes out of business, these employees can be asked to be available as consultants for a period of time helping to ensure that the licensee has access to support personnel familiar with the product.