Voted Best Answer
Dec 14, 2017 - 03:31 AM
The question was not very clear but my read of this is the following:
- the customer is maintaining IBM S&S for a product so it is entitled to use all available versions of this product;
- some components of this product, are separately licensable for earlier versions, and have only become “free of charge” as part of the main product (“supporting program”) after a certain version. In other words, IBM made some previously separately chargeable components/feature “free” to make the newer versions of the product more attractive.
- however because the customer is on an earlier version before these components were included free of charge, IBM insists that they need to license these components separately.
If my understanding above is correct, then my answers are as follows:
- Technically (contractually) speaking, IBM is correct as the product use right of IBM licence is ultimately governed by IBM License Document terms, and such terms are version specific. If the terms of a particular version state that certain components need to be licensed separately (or other way round, that it doesn’t state certain components are included free of charge), then the customer need to license them separately even though the terms for a newer version include these components free of charge (and that the customer is entitled to upgrade).
- in reality the picture is however very different - IBM is usually quite relaxed about this as long as the product is under S&S, which means that although the customer is using an order version and technically bound by the old terms, as long as they are entitled to upgrade, IBM doesn’t usually choose to enforce the old terms even without the actual upgrade.
- the most likelihood for this “debate” to come up is during an audit settlement negotiation - in this case as long as IBM can find revenue in other areas of the audit findings it tends to grant concession on this point quite easily. If IBM insist on this, it is a strong indication that it has not found the expected revenue elsewhere.
Fisher IT Asset Consulting