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
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
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.
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.
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.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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