customized computer software – Required escrow provisions. A. No state agency, as defined by Section 250.3 of Title 75 of the Oklahoma Statutes, the Purchasing Division of the Office of Management and Enterprise Services nor the Information Services Division of the Office of Management and Enterprise Services, unless otherwise provided by federal law, shall enter into a contract for the acquisition of customized computer software developed or modified exclusively for the agency or the state, unless the vendor agrees to place into escrow with an independent third party the source code for the software and/or modifications. B. The vendor must agree to place the source code for the software and any upgrades supplied to an agency in escrow with a third party acceptable to the agency and to enter into a customary source code escrow agreement which includes a provision that entitles the agency to receive everything held in escrow upon the occurrence of any of the following: 1. A bona fide material default of the obligations of the vendor under the agreement with the agency; 2. An assignment by the vendor for the benefit of its creditors; 3. A failure by the vendor to pay, or an admission by the vendor of its inability to pay, its debts as they mature; 4. The filing of a petition in bankruptcy by or against the vendor when such petition is not dismissed within sixty (60) days of the filing date; 5. The appointment of a receiver, liquidator or trustee appointed for any substantial part of the vendor's property; 6. The inability or unwillingness of the vendor to provide the maintenance and support services in accordance with the agreement with the agency; or 7. The ceasing of a vendor of maintenance and support of the software. The fees of any third-party escrow agent subject to this section shall be borne by the vendor. C. The State Purchasing Director or a procurement officer of a state agency shall not process any state agency request for the customization, modernization, or development of computer software unless the proposed vendor provides documentation that complies with subsections A and B of this section. D. The State Purchasing Director shall provide advice and assistance, as may be required, in order for state agencies to comply with the provisions of this section. E. As used in this section: 1. "State agency" shall include all state agencies, whether subject to The Oklahoma Central Purchasing Act or not, except the Oklahoma Lottery Commission; and 2. "Source code" means the programming instruction for a computer program in its original form, created by a programmer with a text editor or a visual programming tool and saved in a file. Added by Laws 2005, c. 391, § 4, eff. July 1, 2005. Amended by Laws 2006, c. 310, § 1, eff. Nov. 1, 2006. Renumbered from § 41.5u of this title by Laws 2009, c. 441, § 64, eff. July 1, 2009. Amended by Laws 2009, c. 451, § 19, eff. April 5, 2010; Laws 2012, c. 304, § 363. NOTE: Laws 2009, c. 451, § 26, provides: “The provisions of Sections 3 through 15, 17 through 20, 22 and 23 of this act shall be effective and shall become operative on the effective date of the appointment of the first Chief Information Officer by the Governor as provided for in Section 2 of this act.” The first Chief Information Officer was appointed by the Governor on April 5, 2010.
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