What Lurks Deep Inside COTS Acquisition Software License Agreements

We've all been there. It's the end of a software company's presentation showing you how their application will be able to solve all your problems. Life with them will be total bliss. You find yourself eager to sign up and put the pain of your current software application behind you.

What's the antidote for the spell that good sales people put on you? Ask for a copy of their end user license agreement (EULA). Here you'll find all the caveats and disclaimers that will bring you back down from Cloud 9 and let you see reality for what it is.

I recently read through the EULA for a commercial off-the-shelf (COTS) software package for Federal acquisitions (yes, I have a very exciting life!). Their marketing collateral promotes how they are a flexible solution that you can easily adapt to your agency's specific needs by modifying application workflow, but their EULA reveals they are still a traditional COTS application with limitations that have frustrated Federal contract management staff for years.

Here are the key facts potential buyers need to know with references to specific language in this EULA.

If you don't purchase upgrades, you will lose support. This vendor's maintenance agreement only includes "dot" updates (e.g. 2.6), not full releases (e.g. 3.0). With this vendor, your ability to evolve is contingent upon buying a steady stream of upgrades.

• • "By purchasing [vendor]'s Maintenance, the Customer will receive all Software Versions and Service Packs (but not Releases) that [vendor] issues during the subscription period..."
  • "Our policy is that we will de-support an older version of our software eighteen (18) months subsequent to the release of the newer version. De-supporting an older version of our product means that we will not be releasing any service packs for that version subsequent to the de-support date, nor will help desk support or bug fixes be provided for the de-supported software version."

Appian customers paying annual maintenance get all updates and future releases at no charge. For example, when Appian introduced built-in social collaboration and native mobile clients on iOS, Android, and Blackberry nearly two years ago, every one of our active maintenance customers with named user licenses got that additional functionality for free.

If you make any agency-specific modifications, you can't install service packs until the vendor folds your modification into the core code, which happens only 1-2 times per year. Same goes for little "fixes" you request to improve user experience. You'll likely have to wait 6-12 months to get them. And those changesÖ yeah, they are going to cost you since the COTS vendor has to do them.

• • "When an agency orders a new customization or pays to have specific fixes included in [the software] version, [vendor] will create a new, temporary branch of the [software] code for that customer and will make the changes to that version of [software]. Once the agency accepts the changes, the agency specific branch will be scheduled for inclusion in the next enhancement release. Until the agency specific branch is merged into the enhancement release, the agency cannot install any service packs."
  • "[Vendor] provides one or two Enhancement Releases per year. Enhancement Releases contain changes that might affect the general user experience, such as:

  • • New COTS enhancements developed by [vendor];
    • Customer-funded enhancements that are being merged into [software] COTS and become part of the supported product;
    • Software fixes developed by [vendor] to address user experience issues reported by customers"

With Appian, you are in full control of your application. Your team can make whatever changes you want and put them live at your leisure.

Any "defects" you discover will only be fixed subject to the decision of the vendor's Change Control Board. This highlights an inherent weakness in COTS software. It's impossible for a COTS vendor to make all the changes every customer wants so their "review boards" have to decide which customers to disappoint.

• • "In some cases, a software defect will be discovered through the ticket analysis process. If this occurs, the [vendor]'s Service Desk will log a Software Change Request (SCR) in our Software Call Tracking System for further analysis and potential code fix. Each week, [vendor's] Change Control Board (CCB) will review all new reported SCRs and give them each a priority rating."

With Appian, there is no review board. You have full control of your application.

You can't change anything or share modifications without the vendor's consent and any enhancements you jointly develop become the property of the vendor.

• • "Customer shall not develop any modification to the Software without [vendor]'s express, written consent. The Customer agrees that such modification will be used solely in connection with Customer operations, and that such modification will not be marketed, licensed or sublicensed, sold, assigned, or otherwise transferred or made available to any third party or other entity, without the express prior written consent of [vendor], which consent shall be within the sole discretion of [vendor]."
  • "In the event [vendor] jointly develops any modification to the licensed Software [with the Customer], such modification will be the exclusive property of [vendor], and licensed to the Customer under the applicable license terms of the GSA schedule; however, the Customer shall receive such limited data rights to such modifications as defined under the schedule contract."

Appian couldn't be more different. It's easy to export the models you build with our product and share them with other users on our vibrant online forums. We encourage our customers to share and leverage each other's work.

The Chief Information Officers of the Federal Government recognize that software licenses like this are part of the main reason why the government's IT investments have performed so poorly. The need for true flexibility in acquisition software is being clearly expressed by Federal acquisition staffs. All vendors want to show that their products can be ultimately flexible. It's up to buyers to get past the spell of a good sales presentation and see the reality of the product they will actually be buying. For that, there's no substitute for reading the EULA.

Evan McDonnell