Descartes licenses some of its products as installable Descartes Software rather than as hosted services. The relevant documents are the Software Terms (version SDSG21.0, published 2020-04-01), the Hardware Terms (HDSG21.0), the Master Terms and the Descartes Software Support Policy, which describes the Software Maintenance Program (SMP).[1][2][3][4] Software Terms apply only to products and services labelled “Software” on an Order Form that incorporates them with the specific version code.[1]
The licence grant
The licence is a world-wide, non-exclusive, non-transferable licence for the Term of the Agreement to Use the Software for the Permitted Use. No licence is given to source code, reverse engineering and decompiling are prohibited except where law forbids the exclusion, and copying, modifying, creating derivative works or merging are not allowed.[1] The licence covers the Software as it exists at the effective date and any new releases the customer becomes entitled to, and Descartes has no obligation to develop new releases.[1] “Use” means to load, execute, employ, utilize, store or display, and is deemed to occur where any such process occurs or at a terminal that initiates it.[1]
Descartes licenses Descartes Software “in one of two ways – either on a perpetual or term basis – as set out in the Agreement”, and the choice is “at Descartes’ sole discretion”. A perpetual licence lasts as long as the customer continues to comply with the Agreement; a term licence lasts for the specific term, again subject to compliance.[4] The perpetual licence is therefore conditional on compliance, which links the over-use clauses to the survival of the licence.
Modules
A Module is an add-on, module or service designed to be integrated with the Software but not an essential component the Software requires to function. A licence covers only the Software described in the Order Form, and the customer may Use a Module only if it is specifically listed in the Order Form or a later ordering document.[1] For asset managers, this makes each Module a separate entitlement line; the catalog records it as Module.
Installation and sites
For Non-Mobile Applications, software designed to be installed on a computer, server or workstation running Windows, Windows Server, Unix, Linux or similar, the customer may install only at Designated Sites, or temporarily at a Disaster Recovery Site during an extraordinary disaster that makes the Designated Site unusable, under documented procedures.[1] Designated Sites are customer facilities identified in the Agreement or later designated in writing by agreement.[1] Unless Activation applies or the Order Form permits more, “a single license to a Non-Mobile Application allows for a single installation on Customer Equipment”, and the customer may make up to two copies for archival or backup. Moving the application to different Customer Equipment requires advance notice so that Descartes can Activate it if needed, and Activation costs may apply.[1] Activation means the process by which software supplied in trial or limited-functionality mode is authorised for greater or full functionality.[1]
The customer must provide and maintain the Customer Equipment, ensure it meets minimum system requirements, and manage access to the equipment and the data the Software stores on it.[1] It may not pledge the Software as collateral or encumber it.[1]
Mobile Applications
Mobile Applications run on phones, tablets and other portable devices on Android, iOS or Windows Mobile operating systems and may be delivered through third-party stores such as Google Play or the App Store. The customer must use only the most current version or the immediately preceding one, or may be excluded from support at Descartes’ sole discretion.[1]
Over-use and verification
If the customer breaches the Agreement by using the Software beyond the Permitted Use, it must “pay to Descartes on demand any amounts required to bring Customer’s Use of the Software into compliance with the Permitted Use, as determined with reference to Descartes’ published commercial price list for the Software”, and that remedy is in addition to other rights.[1] The Data Services terms provide the same mechanism for Data Content by reference to the current price list.[5] The licence-compliance consequences have three practical points. The remedy is a payment at the published list price, which may exceed negotiated prices. It is payable on demand. And it does not preclude other remedies such as termination for breach of the licence terms, which the legacy Master Terms allow Descartes to invoke immediately.[6]
Unless the Order Form provides a perpetual licence, the customer must let the Software connect to Descartes servers as reasonably required to verify the validity and currency of the licence. Blocking that connection may reduce functionality, and Descartes disclaims liability for the reduction.[1] Under the legacy Master Terms, Descartes may also inspect books, records, computer systems and hardware on reasonable notice.[6]
Software Maintenance Program
The Support Policy distinguishes the two licence models.
Perpetual licences. Maintenance and support are provided under the SMP, subject to Maintenance Fees set in the Agreement. The customer is enrolled for each 12-month period of the initial term and then automatically re-enrolled for consecutive 12-month Renewal SMP Periods at Descartes’ then applicable fees, unless either party gives cancellation notice at least 30 days before the renewal period begins. Descartes advises the renewal fee before the period starts; failing notice, the fee equals the current period’s fee. If a customer lets the SMP lapse or cancels it and later wants to renew, it must pay all Renewal Fees for the lapse period plus an administrative charge of 35 percent of the then current Renewal Fees. Cancelling the SMP does not terminate the Agreement.[4]
Term licences. The SMP is included in the licence fees during the term, with no additional fees and no requirement or ability to enrol or cancel.[4]
The catalog records the two models as the SKUs Descartes Software (perpetual licence) and Descartes Software (term licence). Prices are not published.
What the SMP includes
The SMP covers correction of defects where the software fails to perform substantially in accordance with the Documentation (at Descartes’ option, correcting or replacing the component), new releases as they become available, updated documentation and release notes, and support through the portal, email or telephone for critical incidents.[4] First level support is offered in business hours, 8:00 AM to 6:00 PM Monday to Friday in North America, EMEA and APAC time zones, or 24x7 for Priority Level 1 incidents only if expressly contracted and subject to fees.[4] Descartes’ obligation is limited to reasonable commercial efforts to correct errors, provide workarounds or answer questions, and it may reject support for perpetual software that has not been on continuous SMP or has been modified by anyone else.[4]
Excluded items include hardware support, third-party software support, and consulting on third-party interfaces; any technical support outside the SMP is progress-billed at then-current hourly professional services rates. Costs of any system upgrade needed to meet the specifications of the Software or a new release are the customer’s.[4]
Supported versions
Descartes is “only obligated under the SMP to support the most current generally available version and the immediately preceding version” of the Software, and may support other versions at its discretion and discontinue that support at any time.[4] It may also discontinue support for a release, including embedded third-party software, in its sole discretion, with at least 180 days prior notice to customers enrolled for that release.[4] Target resolution times are 12 hours for Priority Level 1, 48 hours for Priority Level 2 and five days for Priority Level 3, with Priority Level 4 items addressed in a future release.[4] The Master Terms add a licensing consequence: the infringement indemnity does not apply to claims arising from the customer’s failure to update or use the most recent version.[3]
Hardware
Hardware bought or rented under the Hardware Terms is delivered EXW (Incoterms 2020) from Descartes’ depot or another location named in the agreement, with risk of loss passing on delivery but title passing later.[2] Software embedded in or provided with hardware is not part of the hardware and remains subject to the software licence terms.[6] The catalog row is Descartes Hardware.
Checklist
- Inventory Software by Order Form line, including Modules, and match each to a Designated Site and installation count.
- Record whether each licence is perpetual or term, and for perpetual licences the SMP renewal date and 30-day cancellation deadline.
- Avoid SMP lapses; a gap costs the lapse fees plus 35 percent to reinstate.
- Track version currency against the current and immediately preceding releases for both support and indemnity purposes.
- Check for firewall rules that block licence-validation connections on term licences.
Out of scope
The Software Terms and Support Policy publish no prices, no Designated Site list and no installation counts. Hosted services and online store orders are covered in the GLN and online terms articles.[1][4]