Most large TIBCO customers have, at some point, bought licences under an enterprise licence rather than by counting copies. The construct trades a fixed period of unlimited deployment for a deployed count that is frozen at the end of the period. Because the frozen number becomes the contractual entitlement, the quality of the end-of-term count decides the customer’s licence position for years. This article describes the current vendor definitions, the older wording, and the reporting duties that surround them.
Enterprise licences
The Business Unit Terms define “Enterprise” as an unlimited Number of Units of the Product, where the Number of Units is identified as Enterprise in the Order Form, to be deployed by the customer until the Enterprise Term Expiration Date set out in the Order Form. At that date the Number of Units, by License Type, then deployed and in use becomes fixed, and the customer may not deploy additional Units.[1] The same text says the right to deploy during the term and afterwards does not extend to any Extraordinary Corporate Event, and that the customer must give the vendor written notice of the Number of Units deployed, by Unit and License Type, within sixty days after the end of the Enterprise Term.[1] The TIBCO Definitions document repeats this wording.[2]
Four features of the definition deserve attention.
- The count is by Unit and License Type. Production, Test, Developer and standby units are separate lines, not a single total. The Business Unit Terms define Production as an operational environment processing live data to which intended users have access, and Non-Production as a non-operational environment that includes development, hot standby, high-availability and test environments.[1]
- “Deployed and in use” is the test. The text fixes the Units “then deployed and in use”. Copies that are installed but idle are a point on which the parties have disagreed in litigation (below).
- The right to deploy ends. After the term the customer holds what it reported. Growth needs a new order.
- The notice is the customer’s duty. The wording places the reporting obligation on the customer, within a fixed window.
Legacy wording
The 2004-era End User License Agreement that remains published with older product documentation defines “Enterprise” differently: an unlimited number of Permitted Instances for one year from the Purchase Date unless the Ordering Document says otherwise, at which time existing licences convert to perpetual and the customer may not deploy additional Permitted Instances. The customer agrees to give notice of the Permitted Instances deployed within thirty days after the end of that year, and the unlimited period excludes any entity that acquires, is acquired by, or is merged or combined with the customer.[5] The same agreement also treats a change in control of the licensee as an assignment of the licence.[5] The 30-day window under that text is half the 60 days in the current wording, so the applicable agreement should be identified before any calculation of a deadline.
Project and Unlimited licences
A “Project” licence follows the same pattern but is limited to a defined scope. The TIBCO Definitions state that the unlimited right to deploy does not extend beyond the scope of the Project in the Order Form or to any Extraordinary Corporate Event, and that the customer gives notice of deployed Units within sixty days after the Project Term ends.[2] “Unlimited”, in contrast, means an unlimited Number of Units to be deployed during the Subscription Term.[2] The End User Agreement defines Unlimited the same way, so the freeze at term end is a feature of Enterprise and Project licences, not of every unlimited grant.[3]
Extraordinary Corporate Events
An Extraordinary Corporate Event is a transaction in which the customer divests business operations and related assets, or acquires, is acquired by, or merges with another entity that was not previously part of the customer’s structure.[3] Under the EUA, users, divisions and entities added or divested through such an event are not authorised to use the Products until they are added by a written amendment signed by authorised officers, or, for a divested entity, by the divested entity itself.[3] For an enterprise licence this is the clause that limits the “unlimited” in the grant to the customer’s structure on the order date, and it is the first thing to check in any merger due diligence. Divestitures need the same attention, because the divested business cannot assume it inherits deployment rights.
Reports and certifications
TIBCO documents ask for three kinds of quantity report.
| Report | Trigger | Content | Source |
|---|---|---|---|
| End-of-term notice | End of an Enterprise or Project Term | Number of Units deployed by Unit and License Type, within 60 days | Business Unit Terms[1] |
| Deployment Report | Vendor’s written request (email acceptable) | Number of Units deployed at the time of the request | EUA 2.5 s.2.9[3] |
| Usage Report | Each 12-month Reporting Period | Quantities per component and environment type; due 60 days after the period | Product licence information[6][7] |
Deployment Report under the EUA
Version 2.5 of the EUA provides that on the vendor’s written request, the customer gives a written notice certifying the Number of Units deployed at the time of the request. If the parties agree to a Subscription for an additional term, the Number of Units in the Deployment Report is the basis for it, and the vendor has no obligation to offer a further term if the report is not provided as requested.[3] Version 2.0, shipped with Enterprise Message Service 10.4.0, instead tied the report to the period before expiry: ninety days before the end of the Subscription Term the customer certifies the Number of Units deployed by Unit and License Type.[4] A customer on a renewal cycle should therefore establish both which version governs and whether the request is event-driven or calendar-driven.
Usage Reports
The TIBCO Platform and Spotfire pages require the customer, during the subscription term, to certify quantities deployed at the end of each annual Reporting Period for each component, including the environment type (Development, Test or Production) on the TIBCO Platform page. Each report is due 60 days after the Reporting Period ends, except the final one, which is due 90 days before the end of the final Reporting Period and covers only its first 8 months.[6][7] For Spotfire the administrator can download the data from the server as a deployment report; it records assigned product licences over time and the number of library items.[8] Both pages say the metrics can change with six months notice.[6][7]
Interaction with other terms
Moving to a public cloud while an Enterprise, Project or Unlimited licence is active requires payment of the CCE Administrative License Fee and associated Maintenance, and at the end of the term the customer counts Processors deployed in its cloud environments using the cloud policy.[9] Maintenance must be bought at one service level for all licensed quantities, so a frozen enterprise count also sets the Maintenance base.[12]
What the litigation shows
Two cases in the United States District Court for the Northern District of California arose from end-of-term deployments. The statements below are the plaintiff’s allegations, not findings.
In TIBCO v. Bank of America, TIBCO alleged that a three-year Enterprise Term expired in February 2013, that the customers’ Deployment Report arrived months late and overstated the Units in use, and that they stockpiled idle copies and kept copying after the term.[10] The court compelled arbitration and dismissed the case, so the merits were not decided in court.
In TIBCO v. GAIN Capital, TIBCO relied on an audit by an independent firm and alleged that the customer kept deploying messaging software after enterprise periods had fixed its licence counts.[11] The case ended by stipulated dismissal. The case articles describe the court records and lessons in detail.
Practical steps
- Record each enterprise or project end date and the notice window in the applicable agreement (60 days under current definitions, 30 days under the legacy EULA).
- Before the end date, run a discovery of deployed copies by product, version, environment and Unit type, and keep the evidence.
- Decide how idle, pilot and standby copies are classified using the Production and Non-Production definitions, and document the reasoning.
- Submit the notice in writing and keep proof of delivery.
- After the term, treat the reported count as the cap and route any new deployment through an order.
- Run due diligence on mergers and divestitures against the Extraordinary Corporate Event clause.