Licensing for BPCS source -- BPCS-L

<vendor>

Dear Rene,

Some thoughts from a non-attorney.

1. I'm speculating that your prior agreement promised "perpetual enjoyment of
the software" ... or something similar to that. Did the new contract
specifically say that it completely replaced all prior agreement(s)? Does
your new agreement say that?

2. Also speculating that your agreements state that SSA/INFOR "owned" all
derivative works. So, they have a right to ask for a copy of your custom
modifications. However, wouldn't it be odd if a court ruled that derivative
works ownership was exclusively in the hands of INFOR? The court would then,
in effect, be prohibiting modification work because it would allow INFOR to
confiscate the work product of your developers and prohibit your users'
enjoyment of that work product. Wouldn't a court finding like that be
inconsistent with the "perpetual enjoyment" promise noted in point #1 above?

3. Curious if the new contract also specified the specific terms of a
professional services relationship with your local affiliate or with INFOR.
If not, and if you no longer have the source, you end up over the barrel
negotiating the terms of INFOR-provided professional services support now.
One legal strategy could be this: point to the non-existence of a pro
services relationship as proof that neither party intended that your company
forfeit custody of the source code.

(Remember, I'm not an attorney and I have no idea what South African courts
think or what the chapters and verses of your contracts say.) There are a few
other concepts that merit detailed analysis and I invite you to cover those
with me off-line.

Peace to you,
Milt Habeck
Unbeaten Path
+(262) 681-3151
mhabeck@xxxxxxxxxx

</vendor>

From: Rene van Besouw
Sent: Wednesday, June 08, 2011 1:21 AM
To: bpcs-l@xxxxxxxxxxxx
Subject: [BPCS-L] Licencing for BPCS source

When we bought BPCS many years ago, in the contract the definition for
Software included source code. A few years ago we signed at standard OGS
agreement for 3 years, which had a line (unnoticed at the time) to say the
base agreement was linked to another contract we have with Infor where
software is defined as object format only. We were recently audited, and told
we were using BPCS source illegally, and they wanted to charge us for the
use of source code. To cut a long story short, the charge was waived (as we
had licenses to AS/SET for a period), but they are forcing us to remove
source code, and hand over all our modifications to the local affiliate for
safe keeping, which will be used when and if we upgrade again.

Is anyone else experiencing this? Does the fact that new contracts specify
object code only, mean we have to remove source code that we have?(which was
legally supplied to us in the past)

Rene van Besouw
Parmalat South Africa