4.4 Contract Term
Determining the term of the contract is an important step in the
revenue recognition process since the contract term could affect the identification
of promises under the contract as well as the transaction price. ASC 606 provides
guidance on determining the contract duration, including the effect of termination
clauses and contract renewals. The contract term is determined on the basis of the
period over which the parties to the contract have present enforceable rights and
obligations. The contract term would not include optional renewal periods or the
delivery of optional goods or services. However, the existence of purchase options
in a contract with a customer could give rise to a material right. For further
discussion of material rights, see Chapter 11.
ASC 606-10
25-3 Some contracts with customers
may have no fixed duration and can be terminated or modified
by either party at any time. Other contracts may
automatically renew on a periodic basis that is specified in
the contract. An entity shall apply the guidance in this
Topic to the duration of the contract (that is, the
contractual period) in which the parties to the contract
have present enforceable rights and obligations. In
evaluating the criterion in paragraph 606-10-25-1(e), an
entity shall assess the collectibility of the consideration
promised in a contract for the goods or services that will
be transferred to the customer rather than assessing the
collectibility of the consideration promised in the contract
for all of the promised goods or services (see paragraphs
606-10-55-3A through 55-3C). However, if an entity
determines that all of the criteria in paragraph 606-10-25-1
are met, the remainder of the guidance in this Topic shall
be applied to all of the promised goods or services in the
contract.
4.4.1 Termination Clauses and Penalties
When contracts have termination clauses and penalties, the
duration of a contract is predicated on the contract’s enforceable rights and
obligations. Accordingly, regardless of whether one or both parties have the
right to terminate the contract, an entity would need to evaluate the nature of
the termination provisions, including whether any termination penalty is
substantive. For example, an entity would assess factors such as (1) whether the
terminating party is required to pay compensation, (2) the amount of such
compensation, and (3) the reason for the compensation (i.e., whether the
compensation is in addition to amounts due for goods and services already
delivered). Substantive termination penalties suggest that the parties’ rights
and obligations extend for the duration of the contract term.
A contract’s accounting term could be less than the contract’s stated term if a
termination penalty is not substantive. For example, a 12-month stated contract
term could, in effect, be a month-to-month contract if the contract could be
terminated each month and the termination penalty is not substantive. An entity
will need to carefully consider the effect of nonsubstantive termination
penalties on the timing and amount of revenue to be recognized.
Because the assessment of termination clauses and penalties focuses on legally
enforceable rights and obligations, certain economic factors such as economic
compulsion should not be considered. Rather, the assessment depends on whether
the terminating party is required to compensate the other party. For example, an
entity may have a long-term agreement with a customer for a unique good or
service that is critical to the customer’s operations. If the agreement allows
the customer to terminate it at any point and there are no contractual penalties
if the customer does not purchase any goods or services, a contract for the
purchase of additional goods or services does not exist even if it is highly
likely that the customer will not terminate the agreement.
The economic considerations related to forgoing a discount on optional purchases
would not be viewed as a substantive penalty suggesting that the parties’ rights
and obligations extend for a longer contract term. The discount on optional
purchases should be assessed for the existence of a material right instead.
Therefore, while an “economic” penalty may be incurred by a customer that elects
not to purchase future but optional goods at a discount, that economic penalty
would not rise to the level of a substantive penalty that lengthens the contract
term.
The determination of whether a termination penalty is
substantive requires judgment and would be evaluated both quantitatively and
qualitatively. For example, data about the frequency of contract terminations
may be useful in such a determination (i.e., a high frequency of payments made
to terminate contracts may suggest that the termination penalty is not
substantive). Determining the enforceable term of a contract that includes
termination provisions (e.g., cancellation fees) may be challenging,
particularly when only the customer has a right to terminate the contract. When
a customer has a right to terminate the contract without penalty, such
termination provision is substantively the same as a renewal provision, as
supported by paragraph BC391 of ASU 2014-09 (as well as by
Implementation Q&A 8). The example below illustrates
how an entity should consider a fixed-term contract that allows a customer to
terminate the contract without penalty after a certain period.
Example 4-3
Company A has a contract to deliver various goods and
services to Customer B. The contract includes pricing
for the goods or services for a two-year period but
allows B to cancel the contract at any time after six
months without paying a penalty. In this scenario, we
generally believe that the enforceable rights and
obligations of the contract are for six months;
therefore, the contract term is six months. Since the
pricing terms of the arrangement are fixed for two
years, A would also need to evaluate whether a material
right exists for purchases beyond six months.
Connecting the Dots
As discussed above, enforceable rights and obligations
in a contract are only those for which the entity has legal rights and
obligations under the contract and would not take certain economic
factors into account (e.g., economic compulsion). Accordingly, the
economic considerations related to forgoing a discount on optional
purchases would not be viewed as a substantive penalty suggesting that
the parties’ rights and obligations extend for a longer contract term.
The discount on optional purchases should be assessed for the existence
of a material right instead. This approach is consistent with the
discussion in Implementation Q&A 8, which states that “an
entity would still evaluate whether the termination right (which is akin
to an option for additional goods or services) gives rise to a material
right.” Therefore, while an “economic” penalty may be incurred by a
customer that elects not to purchase future but optional goods at a
discount, that economic penalty would not rise to the level of a
substantive penalty that lengthens the contract term.
The above issue is addressed in Implementation Q&As 7 and 8 (compiled from previously
issued TRG Agenda Papers 10, 11, 48, and 49). For additional information and Deloitte’s summary of
issues discussed in the Implementation Q&As, see Appendix C.
4.4.1.1 Termination Clauses in License Arrangements
As noted in Section 4.4.1, an entity needs to
evaluate the nature of termination provisions, including whether any
penalties are substantive (i.e., whether the transfer of any consideration,
including noncash consideration, from the customer to the entity is
substantive). Careful consideration is required in the evaluation of whether
giving up license rights is a form of penalty.
Implementation Q&As 7 and 8 include the following
factors that an entity should consider when determining whether a
termination penalty is substantive:
-
Whether the terminating party is required to pay compensation.
-
The amount of such compensation.
-
The reason for the compensation (i.e., whether the compensation is in addition to amounts due for goods and services already delivered).
The two examples below illustrate how an entity would determine whether a
license arrangement includes a substantive termination penalty.
Example 4-4
License
Arrangement Includes a Substantive Termination
Penalty
Company A, a pharmaceutical company
in the United States, owns and maintains a portfolio
of patents related to an antibiotic that treats
life-threatening diseases. On February 23, 20X8, A
grants Customer B (a pharmaceutical company in
Ireland) the exclusive right to use its patented
drug formula to commercialize and supply the
antibiotic in Europe. The IP is fully developed, and
regulatory approval has been obtained; therefore, B
is able to commercialize the IP. Company A has
determined that the patented drug formula is
functional IP and that therefore, the license grants
B the right to use the IP. In exchange for the
exclusive right to use the patented drug formula, B
agrees to pay A the following amounts:
-
An up-front fee of $300 million.
-
Annual fixed fees of $50 million payable at the end of each year in which the contract is effective.
-
Sales-based royalties of 5 percent of B’s sales of the antibiotic in Europe (recognized in accordance with the sales-based royalty exception in ASC 606-10-55-65).
The contract states that B has the
exclusive right to use the patented drug formula
through the patent term, which expires in 10 years
(i.e., the contract ends when the patent expires).
Notwithstanding the stated contract term, the
contract states that B may terminate the contract
before the expiration of the patent by providing
three months’ notice to A. All amounts already paid
by B are nonrefundable in the event of early
termination. The contract does not include an
explicit termination penalty (i.e., B is not
required to pay additional cash consideration to A
upon early termination); however, upon early
termination, the right to the patented drug formula
in Europe would revert back to A, and A would be
able to relicense the patented drug formula to a
different pharmaceutical company in Europe. Unless B
terminates the contract before the end of the stated
term, A would not be able to benefit from licensing
the patented drug formula to a different
pharmaceutical company in Europe (i.e., A would
receive this benefit only upon B’s early termination
of the contract).
Under these facts, A’s contract to
license the exclusive right to use its patented drug
formula to B contains a substantive termination
penalty. As previously discussed in Section
4.4.1, it is important for an entity to
evaluate the nature of the termination provisions in
its contracts to determine the appropriate contract
term for applying ASC 606.
In this example, A’s contract to
license the patented drug formula to B does not
include an explicit termination penalty. That is, B
can terminate the contract before the end of the
stated term by providing three months’ notice
without paying additional cash consideration to A.
Although the contract does not require B to pay
additional cash consideration to A upon early
termination, in the event that B terminates the
contract early, the exclusive license rights related
to the patented drug formula would revert back to A.
Company A would then be able to license the patented
drug formula to another customer in Europe for the
remainder of the patent term, which it would not
have been able to do if B had not terminated the
contract. Therefore, although B is not paying
additional cash to A upon termination, B is
providing consideration (i.e., something of value)
to A, and A is receiving something of value from B
(i.e., the right to relicense the patented drug
formula), upon termination. Although Implementation
Q&As 7 and 8 focus on compensation as additional
cash that an entity’s customer would pay to the
entity upon termination, compensation may also
include noncash consideration that is of value to
the entity. The fact that B is forfeiting its rights
to the patented drug formula and providing A with
something of value (i.e., the ability to relicense
the patented drug formula to another customer in
Europe) from the forfeiture upon early termination
represents a substantive termination penalty in the
contract.
In accordance with Implementation Q&As 7 and 8,
the substantive termination penalty suggests that
the parties’ rights and obligations extend for the
duration of the stated contract term. That is, the
contract term is 10 years.
Example 4-5
License
Arrangement Does Not Include a Substantive
Termination Penalty
Company X, a multinational software
company, is a provider of financial software that
can be used to track a user’s investments. On June
29, 20X8, X grants Customer Y a nonexclusive license
to use X’s financial software to track Y’s personal
investments for five years. The contract also
includes postcontract customer support (PCS) for the
five-year term. Company X also grants other
customers a similar license to use its financial
software (i.e., the license is not exclusive).
In exchange for the right to use X’s
financial software, Y agrees to pay X the following
amounts:
-
An up-front fee of $500.
-
An annual fee of $50, payable at the beginning of each year.
The contract states that Y may
terminate the contract before the expiration of the
five-year stated term by providing three months’
notice to X. All amounts already paid by Y are
nonrefundable in the event of early termination. The
contract does not include an explicit termination
penalty (i.e., Y is not required to pay additional
cash consideration to X upon early termination).
Upon early termination, Y must forfeit its right to
use X’s financial software (and, accordingly,
terminate the PCS arrangement).
Under these facts, X’s contract to
license its financial software to Y does not contain
a substantive termination penalty. Like the contract
in Example 4-4, X’s contract with Y does
not contain an explicit termination penalty (i.e., Y
is not required to pay additional cash consideration
to X upon early termination). However, as
illustrated in that example, it is important to
consider whether the licensor is receiving other
forms of compensation (i.e., noncash consideration
that represents value to the licensor from the
licensee upon termination) to determine whether the
contract includes a substantive termination penalty.
Unlike the license in that example, X’s license to
use its financial software is not exclusive to one
customer. In addition to licensing the software to
Y, X licenses the software to other customers at the
same time. Although Y must forfeit its right to use
X’s financial software upon termination of the
contract, Y is not providing anything of value to X,
and X is not receiving anything of value from Y,
upon early termination. Therefore, the contract does
not contain a substantive termination penalty. In a
manner consistent with the discussion in Section
4.4.1, this would suggest that X and Y
have enforceable rights and obligations for only the
first three months of the contract because three
months is the amount of time that Y would need to
provide as notice to X to terminate the contract.
Refer to Section
4.4.1.1.2 for further considerations
related to the evaluation of termination provisions
in licensing arrangements.
4.4.1.1.1 Termination Clauses That Include Refunds for Prepayments in Software Arrangements
In some software arrangements, a customer prepays for a term-based
license and maintenance (i.e., PCS). If a customer prepays but can
terminate at any point and receive a pro rata refund for the portion of
the term-based license and PCS that is unused, the arrangement would be
accounted for as a daily contract. Undelivered performance obligations
associated with such arrangements would generally be excluded from
deferred revenue and instead be classified as some other liability
account (e.g., “refund liability” or “customer arrangements with
termination rights”). They would also generally be excluded from the
requirement in ASC 606 to disclose “remaining performance obligations,”
although an entity would not necessarily be precluded from specifying
amounts that are subject to termination in the notes to its financial
statements if it properly describes these GAAP amounts.
The examples below illustrate how an entity might determine the
contractual term in various software arrangements with termination
clauses.
Example 4-6
Term-Based Software License With Pro Rata
Refund Upon Termination
On March 1, 20X1, a vendor sells a one-year
term-based license with PCS for $1,200. The
vendor’s customer has the right to terminate the
arrangement at its convenience at the end of each
month. If the customer terminates, it is entitled
to a pro rata refund and loses the right to use
the software. The vendor concludes that it has two
distinct performance obligations: (1) the license
and (2) the PCS. If there was no termination
provision, the vendor would have allocated $800 to
the license and $400 to the PCS (on the basis of
their stand-alone selling prices). Further, it
would have recognized the license fee ($800) up
front and the PCS ratably over time ($33 per
month).
In this circumstance, the vendor should account
for the arrangement as 12 individual monthly
contracts since the term is the lesser of the
contractual period or the period in which the
contract cannot be terminated without substantive
penalty. Accordingly, the arrangement would
continue to be accounted for ratably ($100 per
month).6
Example 4-7
Term-Based Software License Sold to Reseller
With Pro Rata Refund Upon Termination
Assume the same facts as in
Example 4-6, except that the
customer is a reseller that has a committed
(noncancelable) contract with its end-user
customer for the duration of the arrangement (one
year).
Since the vendor is not a party
to the reseller’s end-user arrangement (i.e., the
reseller, not the end user, is the vendor’s
customer), the end-user agreement is not relevant
in the performance of step 1 under ASC 606 (i.e.,
identifying the contract with the customer). The
vendor should therefore account for the
arrangement in the same manner as it does for the
arrangement discussed in Example 4-6.
Example 4-8
Perpetual Software License With Pro Rata
Refund Upon Termination
A vendor sells a perpetual license with one year
of PCS for $6,000. The vendor’s customer has the
right to terminate the arrangement at its
convenience at the end of each month. The
contractual prices of the license and the PCS are
$5,000 and $1,000, respectively. Upon termination,
the customer will be entitled to a pro rata refund
for the PCS and a computed pro rata refund for the
perpetual license, which has a three-year life. If
the customer exercises its termination right, it
loses the right to use the software. The vendor
concludes that it has two distinct performance
obligations: (1) the license and (2) the PCS. If
there was no termination provision, the vendor
would have allocated $5,000 to the license and
$1,000 to the PCS on the basis of their
stand-alone selling prices. Further, it would have
recognized the license fee ($5,000) up front and
the PCS ratably over time ($83 per month).
The vendor should account for the license as 36
individual monthly contracts and for the PCS as 12
individual monthly contracts. As a result, the
license would be recognized over 36 months and the
PCS would be recognized over 12 months, both
ratably ($139 per month for 36 months7 and $83 per month for 12 months).
Example 4-9
Perpetual Software License With Pro Rata
Refund on PCS Only Upon Termination
A vendor sells a perpetual license with one year
of PCS for $6,200. The vendor’s customer has the
right to terminate the PCS at its convenience at
the end of each month. The contractual prices of
the license and the PCS are $5,000 and $1,200,
respectively. Upon termination, the customer will
be entitled to a pro rata refund for the PCS and
no refund for the license. Upon exercising the
termination right, the customer retains the right
to the perpetual license. The vendor concludes
that it has two distinct performance obligations:
(1) the license and (2) the PCS. If there was no
termination provision, the vendor would have
allocated $5,200 to the license and $1,000 to the
PCS on the basis of their stand-alone selling
prices. Further, it would have recognized the
license fee ($5,200) up front and the PCS ratably
over time ($83 per month).
The vendor should account for the PCS as 12
individual monthly contracts and for the license
as part of the initial monthly contract. As a
result, the license would be recognized upon
delivery ($5,020) and the PCS would be recognized
monthly ($80 in the first month and $100 per month
thereafter).8 The total revenue recognized in the first
month would be limited to an amount less than what
would have been recognized on the basis of
relative stand-alone selling price if the contract
were to be accounted for as a one-year contract.
Note that there is no material right for
“renewals” of PCS since the renewals are priced at
$100, which is greater than the stand-alone
selling price of $83.
Example 4-10
Perpetual Software License With a Negotiated
Refund Upon Termination and Separate Stock-Keeping
Units (SKUs)
A vendor sells a perpetual license with one year
of PCS for $6,000. The vendor’s customer has the
right to terminate the arrangement at its
convenience at the end of each month. The
contractual prices of the license and the PCS
(which have separate SKUs) are $5,000 and $1,000,
respectively. The contract specifies that upon
termination, the vendor and the customer will
negotiate, in good faith, the amount of refund, if
any, to which the customer would be entitled. The
vendor concludes that it has two distinct
performance obligations: (1) the license and (2)
the PCS.
Generally, if the amount that would be refunded
is not stated (i.e., unknown) because it is
subject to negotiation and not legally
enforceable, the arrangement would be accounted
for as a one-year contract if a substantive
termination penalty is legally enforceable.
Example 4-11
Term-Based Software License With an Uncertain
Refund Upon Termination and a Combined SKU
A vendor sells a one-year term license with
coterminous PCS for $6,000. The customer has the
right to terminate at its convenience the PCS at
the end of each month. The contractual prices of
the license and PCS are not separately stated
(i.e., the license and PCS do not have separate
SKUs). Accordingly, the amount that would be
refunded upon termination is not known. The vendor
concludes that it has two distinct performance
obligations: (1) the license and (2) the PCS.
Generally, if the amount that would be refunded
is not stated (i.e., unknown) because it is
subject to negotiation and not legally
enforceable, the arrangement would be accounted
for as a one-year contract if a substantive
termination penalty is legally enforceable.
4.4.1.1.2 License Keys and Termination Provisions
The example below illustrates how termination provisions in a software
licensing contract requiring the delivery of a license key for the
customer to use the software affect the contract term and the
recognition of revenue.
Example 4-12
Company LEH enters into an arrangement to license
its software (a right-to-use license for which
revenue is recognized at a point in time) to
Customer MJR for one year with coterminous PCS.
The annual fee for the license and PCS is $5,000
(paid quarterly). Company LEH determines that the
stand-alone selling price of the license is $4,000
and the stand-alone selling price of the PCS is
$1,000. Company LEH delivers a license key to MJR
at the beginning of each quarter; the license key
is required for MJR to use the software. Company
LEH determines that the license and PCS are
distinct performance obligations.
Consider the following cases:
-
Case A: contract may be terminated at the end of each quarter during the one-year license term — In Case A, MJR may choose not to make the next quarterly payment, thereby alleviating LEH’s obligation to deliver the quarterly license key and provide further PCS. Customer MJR’s election not to pay the quarterly fee is not deemed to be a breach of the contract, and LEH has no recourse against MJR if payment is not received (other than to discontinue providing the license and PCS). In effect, the contract is cancelable each quarter. Upon cancellation, MJR’s rights to use the license and receive PCS for the remainder of the one-year license term are also revoked.
-
Case B: contract may not be terminated during the one-year license term — In Case B, LEH is required to deliver or make available the license key to MJR at the beginning of each quarter (such obligation is not contingent on MJR’s making quarterly payments). If LEH does not deliver or make available the license key at the beginning of each quarter, LEH will be in breach of its contractual obligations. Similarly, MJR will be in breach of its contractual obligations if it does not make the quarterly payments. Company LEH has agreed to deliver license keys on a quarterly basis as protection against a breach of contract by MJR. For example, if MJR fails to make payment on time at the start of the second quarter, LEH would still deliver the license key for that quarter. But if MJR has still not paid by the end of the second quarter and is therefore clearly in breach of its contractual commitments, LEH could consider whether to withhold the license key for the third quarter in response to MJR’s breach of contract. The contract may not be terminated by either LEH or MJR during the one-year license term, and LEH has a history of enforcing the contract term.
In Case A, because the contract may be canceled
at the end of each quarter, LEH does not have an
unconditional obligation to deliver the license
key to MJR after the first quarter, nor does MJR
have the unconditional obligation to continue
making quarterly payments to LEH. Because the
contract is cancelable by MJR each quarter, the
contract term is limited to one quarter unless MJR
renews the contract (by making the quarterly
payment). At contract inception (i.e., when the
first license key is transferred to MJR), MJR
obtains a right to use a license for only a term
of one quarter. If MJR elects not to cancel the
contract and LEH transfers an additional key to
MJR, MJR obtains the rights to use and benefit
from the software and receive PCS for an
additional quarter.
In this case, LEH transfers control of a license
for one quarter and is required to provide one
quarter of PCS each time MJR elects not to
terminate the contract. Therefore, LEH should
recognize revenue of $1,000 allocated to the
license at the beginning of each quarter and $250
allocated to PCS over the quarterly PCS
period.
In Case B, LEH should account for the arrangement
as a promise to transfer a one-year term license
and one year of PCS. Although a new license key is
required to be delivered or made available at the
beginning of each quarter, LEH and MJR have
entered into a noncancelable contract that gives
MJR the right to use the software for one year.
Control of a license can be transferred even if
the product key is not transferred to the customer
as long as the key is made available to the
customer (and accessing the key is within the
customer’s control). In Case B, MJR has an
enforceable right to demand the license key, and
LEH is obligated to transfer or otherwise make
available to MJR the key each quarter (regardless
of whether MJR makes timely payments).
Accordingly, once LEH initially transfers the
license (and key) to MJR, MJR obtains control of
the one-year term license. Because LEH does not
have the ability to terminate the contract in the
absence of a breach of contract by MJR or to
prevent MJR from accessing the license key each
quarter, LEH transfers all of the rights to use
and benefit from the software for the entire
one-year license term at contract inception.
Similarly, MJR does not have the right to
terminate the contract and cease making quarterly
payments since the contract is noncancelable and
LEH has a history of enforcing the contract
term.
Accordingly, LEH should recognize revenue of
$4,000 allocated to the license at contract
inception (when the initial key is delivered) and
$1,000 allocated to PCS over the PCS term (i.e.,
one year).
Footnotes
6
Revenue associated with the license would be
recognized at the beginning of each month, which
is similar to ratable recognition given the short
term (i.e., monthly).
7
See footnote 6.
8
Total noncancelable
consideration of $5,100 for the initial month is
allocated on a relative stand-alone selling price
basis — that is, approximately 98 percent to the
license and 2 percent to one month of PCS.