When negotiating sophisticated IT-related contracts it is very straightforward to identify the most difficult points, because they are always the last to get settled. Typically these sticking points have been price and, should it all go wrong, liability. During the past few years, intellectual property (IP) rights indemnities have joined the ranks of the last issues to be resolved, reflecting growing end-user concern over the indemnification of software.
Indemnification has always been an issue, but the emergence of open source software has pushed it up the corporate agenda. In general, open source software is a software program whose source code is made available for use or modification as users or other developers see fit. Open source software is usually developed as a public collaboration and is often made available without a direct cost. For corporate use, open source software is more commonly packaged up and made available at a direct, often subscription-based, cost and is sold alongside associated service and support costs.
