The remaining defendants in this indictment, the companies Wei and Harel, are charged with an offense of being a party to a restrictive arrangement under section 47(a)(1) of the Law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law, together with section 23(a)(2) of the Penal Law. In the indictment, Oshri was attributed the responsibility of officers by virtue of Section 48 of the Competition Law.
Discussion
Preliminary Note: VMware License Renewal vs. ELA Deal
- At the outset, we will briefly note in relation to the license renewal bill – on which the indictment in question is based and in relation to the transaction that was referred to in the proceedings as the ELA transaction – that the indictment did not revolve around it, and that it was ultimately the one that was executed.
The license renewal clause – to which the indictment refers – revolves around a request for quotes for the renewal of licenses for VMware software for a period of one year, i.e., for 2012 (renewal of existing licenses is also referred to as license maintenance, Winschel, p. 636, paras. 10-12).
The ELA transaction – at the same time as the renewal of licenses at the same time as the possibility of a different engagement, is the ELA transaction (Enterprise License Agreement, e.g., Shahar, p. 3051, paras. 21-23, Weinschel, p. 611, paras. 21-22). This is an engagement for a period of several years, in our case three years, which also includes the maintenance of licenses (renewal of existing licenses), entitlement to software updates, as well as the purchase of new licenses according to an estimated expectation of the customer's needs that will arise during the engagement period and in a manner that embodies the possibility of a significant discount on the total price of the engagement (Rezinsky, p. 2499, s. 6 - p. 2500, s. 10; Weinschel, p. 612, s. 1-6; Shachar, p. 3051, s. 21 - p. 3052, s. 2; Oshri, p. 4621, paras. 6-17).