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This agreement should be part of the contract text and it should appoint a
fiduciary (who will typically be a lawyer or a public notary). The
preconditions for release must also be specified (that is, for example, a
sustainable, substantial violation of the contract, insolvency and
infringements against expressly agreed to terms, for example, a non‐
compete clause or such like) and the procedure for release. The fiduciary
will typically be commissioned by both parties to release the source code
(
which for practical reasons should be on a data medium) upon request by
one party, if the other party does not raise objections within the specified
period of notice.
Insolvency
If a service provider or a subcontractor becomes insolvent, the following
questions need to be answered:
Will business operations continue?
Will the official receiver continue ‐ at least temporarily ‐ or terminate
the contract?
Will the legal successor or the rehabilitated enterprise itself continue
to uphold the contract or will there be a need to renegotiate?
Can the quality of the service and in particular the availability of the
data be maintained?
Who is the contact for technical problems?
Will data or software be released if the company actually folds?
It is advisable to cover these items in the contract in order to be able to act
quickly if worst comes to worst, and avoid time‐consuming discussions with
an official receiver. Should the insolvency actually lead to the provider's
company being broken up, the question is how to handle the user's data.
3.4
Tax and Accounting
3.4.1
Commercial and fiscal situation from the Cloud user's viewpoint
As in all other areas of their business operations, company owners will need
to look into trade and fiscal law aspects in the context of using Cloud
