What Software OEMs Don’t Want You To Know About Third-Party Software Support
April 15, 2024
4 min read
April 15, 2024
4 min read
By Guy Tritton
General Counsel and Chief Risk Officer, Origina
HCL recently released a blog post aimed at dissuading their customers from using third-party software support providers. In material respects, it is inaccurate and potentially misleading.
I’ve chosen to highlight and refute some of those statements here.
“Contractually, HCL software doesn’t permit downloads of new releases, fixes, or updates without an active support agreement in place and without active support you have no right to use the updates or fixes.”
If you download any fix/upgrade/patch while under active support with HCL, you may at any time after expiry of active support with HCL use the entitled fix/upgrade. Under the HCL Master License Agreement (the underlying license document), which grants a perpetual license, there is no distinction between the software and releases, fixes, or updates made available by HCL while the licensee is under active support with HCL. (See definition of “Program” at Clause 1.14).
If you move support to a third-party software maintenance (TPSM) provider, you will be able to carry on in perpetuity using all fixes/releases/updates that were downloaded during your active support with HCL. While you will not be able to download new fixes or upgrades released after your active support with HCL expires, for stable software that has been on the market for many years, that is unlikely to be a problem.
Also, Origina can and will provide fixes and patches for supported software and has done so, because it is rare that these ever require access to the source code of the supported software. A good example of this is Origina’ resolution of the zero-day Log4j security vulnerability incident. There was no need to access the proprietary source of the software.
Third parties cannot legally provide third-party software support for critical, significant, or minor incidents.
First, there has never been any doubt that third parties are legally entitled to provide and carry out software support for any incidents whether categorized as critical, substantial, or minor or otherwise. TPSM companies have been doing so for many years. Third-party software maintenance companies like Origina have outstanding track records for resolving such incidents, including the aforementioned Log4j issue.
It is extremely rare for TPSMs to require access to proprietary source code of legacy enterprise application software that has been on the market for many years to solve a ticket. Such software tends to be very stable since the OEM has had many years to sort out the problems through updates. Thus, if you are thinking of moving your software support to a TPSM after many years with OEM support, there is a high chance that there are no outstanding major bugs or problems with the software.
Furthermore, in some jurisdictions such as the European Union, there is, in fact, a right to amend source code to fix an error even without the license or consent of the OEM. And, if software is at End of Support, OEMs like HCL do not provide upgrades, fixes, or patches themselves.
Even an OEM needs time to make changes to source code if that is required to resolve a P1 incident. There is no guarantee an OEM will amend source code to resolve an incident. If you are not on the latest version (and you often will not be), OEMs like HCL might require you to migrate to the latest version with all its potential resultant problems like dev testing.
It is useful to compare the SLAs of HCL and Origina when a ticket is raised. HCL’s Software Support Guide can be found here. Origina’s SLAs are in its Statement of Work, which is offered to all customers.
| HCL | ORIGINA | |
|---|---|---|
| Initial Response Time: Contractual Obligation | Commercially reasonable efforts to meet Initial Response Time | All reasonable endeavors to meet Initial Response Time. This is a substantially higher obligation than “commercially reasonable efforts” akin to “best endeavors.” |
| Initial Response Time: P1 and P2 | two hours/two business hours | 30 minutes/30 minutes (24/7/365) |
| Resolution of ticket: P1 and P2 | No SLA (other than contractual obligation to provide technical support in a timely and professional manner) | All reasonable endeavors to resolve P1 ticket “as quickly as possible” with updates every three hours and P2 ticket within one business day with updates every four business hours |
HCL’s P2 criteria — “An issue with the product or service that significantly limits functionality and requires prompt attention. A business deadline may be in jeopardy” — is very similar to Origina’s “The Issue is such that the software product is useable, but its functionality is severely limited, or the Issue is having a serious impact on the customer’s business.”
HCL’s blog also makes other claims such as “No one knows a software program more intimately than its developer.” But does that mean HCL still retains as employees the people that developed the program? It may not have them.
Origina has a worldwide pool of more than 400 highly knowledgeable independent global IBM experts (GIEs). Some of them worked for IBM on developing the very programs they support. (HCL bought a substantial estate of IBM software.)
When OEMs feel threatened by actual loss of customers to third-party software maintenance, companies can find themselves on the receiving end of “knocking” copy from those OEMs. HCL feels threatened because HCL licensees who have moved their software maintenance to third parties like Origina are now beginning to understand the benefits of TPSM. After all, software support is the lifeblood of TPSM providers like Origina who offer a competitive alternative to OEM Subscription and Support (S&S).
General Counsel and Chief Risk Officer at Origina, Guy Tritton is also an experienced intellectual property practitioner with a broad practice ranging from patents, copyright, and designs through to franchising, competition law, and commercial disputes. In 2023, he was awarded IP Junior Barrister of the Year in the United Kingdom by the world’s leading law directory, Legal 500. He is the chief author of “Intellectual Property in Europe” (6th edition, September 2022, Thomson Reuters), a book often cited in Advocate-General’s Opinions and is the course textbook in some European universities. He also is an ex-computer programmer who read Applied Physics and Computing at a U.K. university.
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