A Legal Review of Oracle’s Contract in Relation to Third-Party Software
General Support Policy
The Oracle Technical Support Policies expressly and unequivocally state that Oracle support of licensed, unaltered Oracle programs [emphasis added] includes support in resolving problems that the user creates (“including problems you create”). Thus, problems that may appear to be linked to the use of third party software are not in any way excluded from the coverage of Oracle support. Oracle support and issue resolution is available as long as the user can satisfy the following conditions:
- the source code of the Oracle program has not been altered;
- the Oracle program involved is a currently supported release;
- the Oracle program involved is running on the hardware, database, and OS specified in the user’s Oracle documents.
The term “demonstrable” that introduces these conditions that must be met for obtaining support adds a further de facto condition that the user be able to demonstrate in some manner that there is a problem. For an “issue” to be “demonstrable”, the user must identify the nature of the problem (i.e., that the Oracle software is not performing as expected or as it should), and the problem must be one that the user can replicate.
Technical support is provided for issues (including problems you create) that are demonstrable in the currently supported release(s) of an Oracle licensed program, running unaltered, and on a certified hardware, database and operating system configuration, as specified in your order or program documentation.
(Oracle Software Technical Support Policies Effective Date: 31-March-2011, Page 1).
What is an “Unsupported Program”?
The term “Unsupported Programs” as used in the Oracle Software Technical Support Policies document refers to unsupported Oracle software programs. The policies indicate that “unsupported programs” are not eligible to receive Oracle “updates, maintenance releases, patches, telephone assistance, or any other technical support services.” The only products for which Oracle is in a position to provide those items are Oracle programs, or programs of companies that Oracle has purchased. This policy statement could not be used to justify Oracle in withdrawing purchased support for properly licensed EBS programs as a consequence of using third party software in conjunction with the EBS because it makes no reference to third party software as being part of the category of “Unsupported Programs”.
The “Overview” section of the policy document also contains the following provision:
“These Technical Support Policies are subject to change at Oracle’s discretion; however Oracle policy changes will not result in a material reduction in the level of the services provided for supported programs during the support period (defined below) for which fees for technical support have been paid.”
In essence, Oracle is reserving the right to make unilateral modifications in its support contracts. By reserving that power, however, Oracle risks having a court hold that the contract is illusory and refuse its enforcement. In lay terms, an illusory contract is one in which one of the parties, Oracle in this case as a result of its unilateral power to change its obligations, cannot be held to its side of the bargain. To avoid invalidation of that provision as one that makes the contract illusory, Oracle is careful to note that those unilateral changes cannot result in a “material reduction in the level of services provided.” Adding new grounds for total discontinuation of support would be a material reduction. Hence, the category of “Unsupported Programs” cannot be enlarged to include otherwise supported EBS installations that also utilize third party software.
Unsupported Programs — Customers with unsupported programs are not entitled to download or receive updates, maintenance releases, patches, telephone assistance, or any other technical support services for unsupported programs. CD packs or programs purchased or downloaded for trial use, use with other supported programs, or purchased or downloaded as replacement media may not be used to update any unsupported programs.
(Oracle Software Technical Support Policies Effective Date: 31-March-2011, Page 3).