By Pam Fulmer
Broadcom has announced that it is acquiring VMware for $61 billion. What will this mean for VMware customers? Tactical Law has no crystal ball, but we do know that VMware customers are increasingly being audited, and aggressive software audit tactics have recently been reported by companies under audit. Although VMware has always conducted software audits, they were known for a kinder and more gentle approach, then say Oracle or Micro Focus. Not so much anymore.
Instead some business commentators have noted that Broadcom's CEO Hock Tan’s "previous pattern of buying up software companies like CA Technologies and Symantec will repeat itself with the VMware purchase, with a heavy-handed focus on producing profits favored by investors that could include cutting operating expenses and research dollars and raising prices on customers." One way that software publishers increase their profits is by conducting software audits. And that is what the market is seeing in the case of VMware, and the acquisition has not even closed yet. We predict that VMware customers will see more audits in the coming months. Now is the time to get prepared.
The Covid pandemic hit suddenly and forced companies to quickly provide a technology solution so that employees could work remotely from home. Unfortunately the imperative to move fast meant that for many companies remote working technologies were deployed first, without determining whether such use was allowed by the relevant license agreement. Now those decisions are coming home to roost, as non-compliance is exposed by software audits.
If you have received an audit notice or an adverse non-compliance finding while being audited by VMware, our software licensing dispute attorneys can help. Check back for further updates about VMware's new audit tactics.
By Dee Ware
If you are considering entering into an agreement for Oracle/NetSuite (“NetSuite”) Enterprise Resource Planning (“ERP”) software and/or professional services, it is important to check, download, store and read all web pages referenced in the Estimate, Ordering Document, Statement of Work, and any other document provided by NetSuite. NetSuite is likely betting that you will not read or negotiate any of the terms contained in this incorporated material. And, as discussed below, you will definitely want to!
Even though often not in blue typeface or underlined, some of the web addresses referenced in the contract documents may be hyperlinks. We advise to click on all addresses. If it is indeed a hyperlink, make sure to save the external page that it links to as this material may not be readily available in the future. The same holds true for other referenced web addresses. This material is usually incorporated into the contract documents and thereby made part of the agreement with NetSuite. Also, you should verify that the date of the referenced material matches what is stated in your contract document(s). That is, if the draft agreement that your company has received from NetSuite says that it is governed by the Subscription Services Agreement v020121, but the link takes you to a Subscription Services Agreement ("SSA") with a different version date, you will want to either get a copy of the version with a matching date to review or ask NetSuite to correct the contract documents.
We also cannot emphasize enough the importance of reading what is contained in the referenced material on the NetSuite website before you sign on the dotted line as the terms are likely one-sided. As of the date of writing this blog post, the NetSuite website states that “[i]f your order is placed on or after July 20, 2022 and references the Subscription Services Agreement available at https://www.oracle.com/corporate/contracts/cloud-services/netsuite/, then the June 1, 2022 version of the Subscription Services Agreement applies to that order.” That version of the SSA contains additional hyperlinks (all of which should also be downloaded and reviewed) and, as just a limited example, provides:
These terms and others may be important to your company’s decision-making process, as well as down the road should something go awry.
By Tactical Law Attorneys and From Time to Time Their Guests