We've got a guest article today from Mark Garnish of TFB on that always topical question of whether software end of life clauses are worth the effort…

As a leading supplier of legal IT, one of the most common requests TFB receives from new clients is a guarantee not to “end of life” computer software and it is easy to understand why.  Traditionally lawyers tended to buy their computer systems in 5 year cycles and as the choice of software was largely proprietary to certain hardware platforms, it was customary not to just change your software, but to change the entire system.  Nowadays, nearly every firm will be running Microsoft Windows with a Microsoft server and any software supplier worth their salt would not even be considered for inclusion on the short-list if the software did not work on this standard platform.  As a result suppliers, whilst still supplying hardware services, no longer view this as being a key part of their role (unless they specialise in it) and will invariably be hardware agnostic; being comfortable with installing and running their systems on pretty much any platform that lawyers are using at this time.

Lawyers can take many months, sometimes even years, to decide which practice and case management system to implement.  Having gone through the pain of making that decision, the last thing that they want is for their supplier to bring out the latest, shiny new product a few months after contracts have been signed.  Worse still is hearing the dreaded news that an “end of life” notice has been issued on their existing software. 

It is interesting to explore why end of life notices produce such an emotive response in software. With Practice and Case Management systems you expect your supplier to assist you, either over the telephone or via email, in the event that things go wrong.  More importantly, you expect your chosen supplier to keep the product up to date with industry best practice along with changes to legislation and other standards such as SAR’s, Legal Services Commission etc.

It is this final point which is what firms are really trying to protect against when they ask for no “end of life” in a supply contract.  Essentially they are saying

“we are making a commitment to you to purchase your software and we expect you to guarantee to support it for a period of years”. 

So far so good, but let us just think about what exactly you are asking a supplier to commit to.  By requesting that they contractually agree that they won’t end of life the product, you are simply ensuring that they won’t discontinue support of that product over the period.  When most of us think of support we are really thinking of the supplier’s helpdesk, so essentially your request to not end of life a product means that you are expecting your provider to help you fix problems with it over the period.  Whilst they may baulk a bit at this type of request they are not really giving very much away.  Nobody in their right mind would really try and sell you a product today which they expect to withdraw within the next 5 years, so merely saying that they will continue to help you over the telephone for a period of 5 years should give precious little comfort. 

The questions you should really be asking your supplier are these:

1.    Do you have any intention to end of life this product over the next X years?

2.    Have you already started work on, or are you planning any successor products to replace the product that I am about to sign a contract for?

If “yes”, will I be entitled to upgrade this software “free of charge”? and does that include services such as training and data transfers?

If “no” do you guarantee to continually develop the product I am purchasing for the next X years?

This last point is perhaps the most important of all.  We all know and expect our software suppliers to be going through a continuous development programme of introducing new software products.  For most there comes a time when it is better to introduce a new product than to continually evolve and enhance an existing one.  The question for suppliers then is this; having made that decision, what do you do with your existing clients?  The worst nightmare for a client is that your supplier decides to introduce their new offering and effectively cease development or enhancement work on their existing product whilst not actually issuing an end of life.  At this point you are caught between a rock and hard place.  Your supplier will effectively no longer be enhancing your current product, meaning that your technology will fall behind, but they are under no obligation to release the new product to you, without you paying for it, which you hadn’t budgeted for at the time of signing the original contract.

So, what is the solution?

Whilst you will obviously want to ask your supplier about their intention to issue end of life notices, this is not really the area where you will need to be protected from a contractual point of view. The minimum that you would require from your supplier is this:

The supplier will continue to support, maintain and enhance the product for the foreseeable future but for a minimum of X years. In the event that a successor product is developed the client will be entitled to an upgrade, including all services and charges, free of charge, for a period of Y years from the date of this contract.

It is up to each firm to determine what X and Y should be but 5 years should be considered a minimum for a free upgrade even if it may be considered reasonable to pay for some services such as training after 3 years.

In summary, an end of life notice means that there will be somebody at the end of the telephone to help you in the event that you get stuck.  A continuous development clause will ensure that, but with the added reassurance that your software will continue to be enhanced and kept up to date with modern practices.  Including such a clause in the contract with your suppliers will not guarantee that you will make the right decision on which product to buy, only your own due diligence can do that, but it will give you peace of mind that your new system will work for you for several years to come.

…Mark Garnish, TFB PLC