- This article will explore the possible implications for organisations who have not maintained ‘active’ Software Assurance (SA) for Windows Desktop OS.
- The objective of this article is to review the publicly available documentation available that explain the software use terms for Windows Enterprise Edition.
- General and Product-Specific use rights will be in your Agreement(s) with Microsoft the Product Use Rights or Product List
- This article is not intended to replace the Product Use Rights or Product List
- Please be aware that any licensing information could be subject to change. This article confers no rights and is provided for information purposes only and may supersede or update previous articles.
- Please refer to binding documentation relevant to your contract(s) and software.
- There is another article available on Re-Imaging
- If you would like to book an in-depth Licensing Workshop or Microsoft Strategy Workshop please get in touch via email or on Twitter I can work under NDA.
Exploring the Software Use Terms for Windows Enterprise Edition
The extended functionality of Windows Enterprise Edition as an extended software use right, derived from procurement of Software Assurance (SA) is often leveraged by organisations who have committed a Microsoft relational procurement contract like an Enterprise Agreement (commonly referred to as ‘EA’).
The software use terms to access the extended functionality available within Windows Enterprise are critical when evaluating the risk of contract expiration and non renewal of maintenance (Software Assurance)
Understanding whether there is a vendor obligation to deploy prior to expiration of the SA maintenance contract, a continuing right to deploy following expiration, and the ability to re-image replacement devices are critical, and not commonly explored, to assess the impact of allowing maintenance (SA) on Windows to expire.
Microsoft has created a powerful commercial mechanism to drive certain corporate purchasing behaviours within Software Assurance (SA) and define it under an umbrella description as “offering that provides benefits that may include new version rights, access to differentiated technologies, additional use rights for the Products for which it is acquired, spread payments, consulting services, training, support and access to exclusive offerings”.
[Ref: Product List, June 2013, Page 48 of 189]
This article will explore the publicly available information on the conditions and limitations of the extended functionality of Windows Enterprise Edition as an extended software use right derived from Software Assurance (SA), referencing binding documentation like the Product List and Product Use Rights and other non-binding advisory publicly available documentation for comparison.
Windows Enterprise is not a Version, It’s an Edition
Access to the extended functionality of Windows Enterprise is available only as a benefit of Microsoft Software Assurance through Volume Licensing programs such as Select Plus, Enterprise Agreement , and Enterprise Subscription Agreement.
While many organisations and resellers refer to New Version Rights as a principal and critical component of the maintenance relationship, this is not always the primary driver for maintaining a relational contract with Software Assurance (SA) for your product portfolio.
For reference, Microsoft explain that New Version Rights enable access to certain perpetual rights to new version releases over the maintenance contract term:
“With Software Assurance, customers are eligible to upgrade to new versions of licensed software made available during their term of Software Assurance coverage. New Version Rights means, for any underlying licensed product for which Software Assurance coverage is ordered, the right to upgrade to, and run in place of the underlying licensed product, the latest version of that product that we make available during the covered period. For example, if a new version of Microsoft Office is made available during the term of your coverage, your licenses will automatically be upgraded to the new version. Customers that acquire perpetual licenses through Software Assurance can deploy the upgrades after their coverage has expired.
[Ref: Product List, June 2013, Page 62 of 189]
For example, An organisations that procured Windows 7 Pro on a perpetual Volume Agreement after General Availability (October 2009) and maintained Software Assurance (SA) for Windows after General Availability of Windows 8 (October 2012) will have perpetual use rights to Windows 8 Pro.
Windows Enterprise Edition is not accrued under New Version Rights as it is an ‘Edition’ of Windows and not a new ‘Version’ (like say ‘Windows 9’).This distinction that the software use terms for Windows Enterprise Edition are derived as a product specific benefit of Software Assurance and not from New Version Rights specifically, could be material in determining the rights and limitations of the software use grant.
Expiration of Software Assurance
Microsoft initially advise in the Product List that Software Assurance enables the software use rights to Windows Enterprise Edition (see extract below) and like all contractually binding documentation, the vendor is careful to stipulate the conditions and limitations of that use within the overarching umbrella of Software Assurance.
“[…] Customers with active Software Assurance coverage for the Windows desktop operating system are eligible for this benefit. Software Assurance coverage for the Windows desktop operating system on a licensed device gives customers the option to use Windows 8 Enterprise in place of Windows 8 Pro on that device.
Eligible Software Assurance customers have the rights to use Windows 8 Enterprise as described in the Product Use Rights. Customers may not move Windows 8 Enterprise from the licensed device to another device, except in conjunction with the permitted reassignment of their Software Assurance coverage.”
[Ref: Product List, June 2013, Page 66 of 189]
Importantly, (see above) Microsoft are careful to stipulate in the Product List that Windows Enterprise Edition cannot be reassigned to a replacement device without Software Assurance “coverage”.
The ultimate impact to the an organisation will be dependent on the current hardware lifecycle and the necessity to maintain a consistent corporate image, or critical requirement to access the extended functionality of Windows Enterprise. The ongoing procurement of SA under a relational procurement contract like a Enterprise Agreement (EA) or Enterprise Agreement Subscription (EAS) provides an incentivised price point that must be weighed against the cost of ad hoc procurement of Software Assurance (SA) on transactional procurement model(s). The implications of non-renewal should include evaluation of the functional limitations of perpetual use rights without access to the extended portfolio of benefits commitment to Software Assurance includes.
The Influence of Advisory Documentation
Microsoft subsidiaries and other industry experts will often refer to advisory documentation and trusted 3rd party commentators to initially assess the rights (and limitations) of software use terms for Microsoft Software.
Microsoft guidance documentation include the following advice on the limitations and conditions of use for Windows 8 Enterprise Edition:
“When you license a device with Software Assurance, the SA benefits for that device are available for the term of the Software Assurance coverage only. Note, when acquired under a non-subscription license, Windows 8 Enterprise use rights are perpetual for the licensed device even after Software Assurance coverage ends as long as Windows 8 Enterprise was installed on the device at the time Software Assurance coverage ends. Perpetual use rights for Enterprise Edition are tied to the licensed device and end once the device is retired.”
[Ref: Windows 8 Licensing Guide, September 2012, Page 7 of 16]
This is an interesting statement, and therefore under this logic, a customer licensed with Windows 7 Professional with active Software Assurance (SA) that expired on 31st October 2012 would have the following rights:
- Can assign and deploy Windows 7 Enterprise Edition until the end of their Software Assurance (SA) coverage.
- Can deploy Windows 8 Pro in December (after expiration) using the benefit of “New Version Rights”.
- Cannot deploy Windows 8 Enterprise after expiration of Software Assurance (SA) coverage (since they no longer have rights to Enterprise Edition). Interesting Stuff.
Microsoft advisory documentation via the Microsoft Virtual Academy iterates that there is a perpetual right for the “licensed device” following expiration of SA, but interestingly does not explicitly reference an obligation to install.
“Enterprise Edition use rights are perpetual for the licensed device even after SA coverage ends”
[Ref Licensing Windows 8 Handout last accessed: 04.06.2013]
*For the vendor definition: “Licensed Device means the single physical hardware system to which a license is assigned”. [Ref: Microsoft Product Use Rights, April 2013, Universal License Terms, Page 7]
Trusted 3rd party commentator Gartner provide the following guidance that appears to disagree on the requirement to install.
Gartner states that Windows Enterprise is not derived under an SA benefit (as suggested by the Windows 8 Licensing Guide).
Gartner define SA benefits – Use Rights as “features and functions that are not part of Windows Enterprise and don’t include perpetual use rights. They may only be used while Windows SA is in force on a particular device. If SA is not renewed, then the organization/user must stop using these features”
[Ref: Gartner Website, 2013 Update. Last accessed 05.06.2013]
Gartner appears to advise that Windows Enterprise Edition is instead accrued under New Version Rights “SA conveys rights to new versions of the covered product.” […] “The Windows upgrade (and Windows Enterprise) may be installed and run on a PC that was covered by SA, even after SA expires. However, it cannot be moved to a replacement PC if the new PC was never covered by SA.”
Microsoft do provide ‘some’ guidance on their Volume Licensing Website on re-assignment rights after expiration but do not address the requirement to install:
“I purchased Software Assurance (SA) for Windows, giving me the right to upgrade to Windows 8 Enterprise edition. Can I reassign that operating system license to another PC and use Windows 8 Enterprise Edition on it?
No. You may not move Windows 8 Enterprise from a licensed device to another device. However, you may reassign active Software Assurance coverage to a replacement device internally, so long as (1) the replacement computer is licensed to run the latest version of that operating system, and (2) you remove any desktop operating system upgrades from the original computer, as permitted under your Volume Licensing agreement.
If you are eligible for perpetual licenses under your Volume Licensing agreement, you can continue using Windows 8 Enterprise on a PC even after your Software Assurance coverage has expired for that device. However, Windows 8 Virtualization Rights benefits of Software Assurance expire when Software Assurance coverage expires. Learn more about Windows 8 Enterprise licensing.”
[Ref: Microsoft Volume Licensing, Frequently Asked Questions, Last Accessed 11.06.2013]
The Microsoft Website seems to support other advisory documentation that procurement of Windows Pro under a perpetual Volume Agreement with Software Assurance (SA) will provide perpetual use rights to Windows Enterprise for the last assigned device prior to expiration.
It should be noted that advisory documentation (likely for simplicity) rarely refer to source ‘binding’ documentation like the Product List or Product Use Rights and increasingly, it should be recognised that licensing briefs, white papers and training resources, and 3rd party commentators, while useful, are not contractually binding documentation. While often quoted by the Microsoft subsidiary to support their own view, when it comes down to it, the customer must look to the ‘binding’ terms and extrapolate how this should be implemented and controlled (from the vendor perspective). Non-binding advisory documentation is of limited influence unless it supports the view of the vendor.
The Hierarchy of the Product Use Rights
The overarching precedence of Universal License Terms remain in effect unless explicitly retracted or amended in either the General license Terms or Product-Specific License Terms of the Product Use Rights (see example diagram below)
The Universal License Terms
Microsoft state within the Universal License Terms, that Software Assurance (SA) is required to support re-assignment of the Windows Upgrade License and is an example of a vendor defined limitation:
“Except as permitted below, you may not reassign licenses on a short-term basis (within 90 days of the last assignment), nor may you reassign licenses for Windows desktop operating system […]”
[Ref: Product Use Rights, April 2013, Page 9]
However, Microsoft provide the following exception as provided under the Universal License Terms:
“Reassignment of Software Assurance for the Windows desktop operating system. You may reassign Software Assurance coverage for the Windows desktop operating system to a replacement device, but not on a short-term basis, and only if that replacement device is licensed for a qualifying operating system as required in the Product List; provided, however, you must remove any related desktop operating system upgrades from the former device”.
Condition on License Reassignment “When you reassign a license from one device or user to another, you must remove the software or block access from the former device or from the former user’s device”
[Ref: Product Use Rights, April 2013, Page 10]
The enablement to reassign of Windows Enterprise Edition is supported in the Product Use Rights under the condition (see above) that it is to a replacement device and the former device is retired.
“Reassignment of Software Assurance Related Rights. Licenses that are granted or acquired in connection with Software Assurance coverage (e.g., Windows Thin PC, MDOP, User SLs for Software Assurance) generally must be reassigned as and when the qualifying license and Software Assurance are reassigned”.
The Product Use Rights Appendix: Software Assurance
The Product Use Rights under the Appendix 2: Software Assurance Benefits include an overview of the conditions and limitations of access to Windows Enterprise. Appendix 2 contains license terms that apply to Software Assurance benefits.
Microsoft are careful to set that context that “Except as noted below, these benefits expire when your Software Assurance coverage ends”.
[Ref: Product Use Rights, April 2013, Page 98]
Microsoft also establish the authority of the Appendix 2: Software Assurance Benefits as governing ‘in case of any conflict’:
“Use of the software under your active Windows Software Assurance coverage is subject to the Desktop Operating System section and the license terms here […]
“The license terms in this section govern in the case of any conflict with the terms in the Desktop Operating System section.”
““Software,” as used here, refers to Windows 8 Enterprise”
[Ref: Microsoft Product Use Rights, April 2013, Page 105]
“8. Your right to use the software as described here is non-perpetual; you may not access or use the software, as permitted here, after your Software Assurance coverage expires.
9. If you accrue a perpetual right under Software Assurance coverage to use the latest version of the Windows desktop operating system, then you will have a perpetual right to use in its place the corresponding version of Windows Enterprise, but only as permitted in the Desktop Operating System section of the Product Use Rights without the additional rights and limitations here”
[Ref: Microsoft Product Use Rights, April 2013, Page 105]
• Windows Enterprise while accrued under the umbrella term Software Assurance (SA), it is not derived from New Version Rights but as a product specific Software Assurance Benefit. This is supported under the logic that Enterprise is a ‘Edition’ not a ‘Version’ of Windows and placement in the Product Use Rights under the Appendix 2: Software Assurance Benefits.
The Appendix 2: Software Assurance in the Product Use Rights is interesting, and if interpreted correctly (see extract above) establishes the limitations of use for Windows Enterprise Edition under the term “software” as follows:
• An organisation can assign and deploy Windows 7 Enterprise Edition until the end of their Software Assurance (SA) coverage.
• Deploy Windows 8 Pro – after expiration – using the benefit of “New Version Rights” i.e. “accrue a perpetual right [..] to use the latest version”
• Would not be able to deploy Windows 8 Enterprise after expiration of Software Assurance (SA) coverage.
• There is supporting advisory documentation that Windows Enterprise can be used after expiration on the assigned licensed device(s) (See Licensing Windows 8 Handout and the Windows 8 Licensing Guide as well as an 3rd party advisory article by Gartner.) There does not appear to an explicit statement in binding documentation (Product Use Rights or Product List) but this is supported under Frequently Asked Questions on the Microsoft Volume Licensing Website.
• There does not appear to be a written statement in binding documentation (Product Use Rights or Product List) that there is a requirement to ‘Install’ prior to SA expiration. This conflicts with the Windows 8 Licensing Guide (See Page 7 of 16, last checked 11.06.2013).
As illustrated above, advisory documentation (likely for simplicity) rarely refer to source ‘binding’ documentation like the Product List or Product Use Rights and increasingly, it should be recognised that licensing briefs, white papers and training resources, and 3rd party commentators, while useful, are not contractually binding documentation.
Many briefs may state that they are to be used as a ‘guide only’ While often quoted by the Microsoft subsidiary to support their own view, the customer must look to the ‘binding’ terms and extrapolate how this should be interpreted, implemented and controlled. It is often the case that Non-binding advisory documentation is of limited influence unless it supports the ‘current’ view of the vendor.
This website is a way to give back to the licensing community and as an information resource for all customers that work with Microsoft software and licensing. I hope you find it of value.
Tony Mackelworth is a Senior Licensing Specialist at SoftwareONE
Tony lives with his wife in Oxford, England.
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