Software license agreements usually include offerings of services – software maintenance and technical support – that are essential for the customer's effective use of the licensed software. Customers should understand the nature and extent of the software vendor's service offerings, and consider whether those services, together with other risk management practices, will reasonably satisfy the customer's requirements.
SERVICE OFFERINGS
Software maintenance is usually comprised of software patches and fixes (to correct latent defects in licensed software) and software updates or incremental software releases (to provide minor improvements to licensed software). In some instances, software maintenance also includes major upgrades or new versions of licensed software.
Technical support is usually comprised of remote (telephone or online) technical advice regarding use of licensed software and assistance to resolve problems with licensed software, including the provision of temporary work arounds and permanent solutions (e.g. patches and fixes) for software defects. Technical support may include a helpdesk service for end users of licensed software (known as "first level" support) or may be limited to assistance to the customer's own internal helpdesk personnel (known as "second level" support).
SERVICE LEVELS AND REMEDIES
In some circumstances, a software vendor may make promises about the level of service the vendor will provide if there are problems with the licensed software (e.g. how quickly the vendor will respond to a reported problem or provide a temporary work around for the problem) and may offer limited financial remedies (e.g. credits against future fees) if the software vendor fails to provide the promised level of service. Specified remedies are often the customer's only remedies if the vendor fails to achieve promised service levels.
EXCLUSIONS/QUALIFICATIONS
A software vendor's obligations to provide software maintenance and support are usually limited by various exclusions and qualifications. For example, vendors usually limit their maintenance and support obligations to relatively current versions of licensed software and exclude problems caused by modification of the software, incompatible or defective technology infrastructure, or use of the software in breach of the license agreement or contrary to applicable documentation. Some software vendors also limit their support obligations to problems that can be replicated in the vendor's technical environment.
DURATION OF SERVICE
Software maintenance and support services may be optional at the customer's election, or mandatory throughout the entire duration of the software license. Software vendors usually commit to offering software maintenance and support for a limited time only. This can be problematic for customers who intend to use licensed software for a lengthy period and require maintenance and support throughout that entire period.
RECOMMENDATIONS
Maintenance and support services are particularly important for software that is costly, difficult to promptly replace, or mission critical to the customer's important business operations. In those circumstances, a customer should carefully assess whether the vendor's service offerings, together with other risk management practices, will reasonably satisfy the customer's requirements throughout the expected duration of use of the software.
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