It's All In the Fine Print: Online Resources for Software and Database License Review Georgia Harper Office of General Counsel University of Texas System

Trends in Contract Processing

• Exponential growth in numbers of software and database contracts

  • Licensing software is becoming more like purchasing desks and chairs
    
    

• No growth in numbers of attorneys to handle contracts

• Routine nature of most problems

  • Makes them amenable to appropriate educational efforts and online guidance
    
    

• Regents determined that authority to negotiate, approve and sign most contracts should be delegated to the component institutions

OGC and Contract Review

• Leveraging legal resources

  • Standard Contracts

  • Facilitating component review of nonstandard contracts

    • Education
      
      
      • General contract principles
      • Specific workshops/seminars
        
        
    • Online resources
      
      
      • Checklists
      • Standard Clauses
        
        

• Evaluating extenuating circumstances: when to approve an agreement that does not meet normal expectations

Checklist Objectives

• Solving routine problems

  • Checklist identifies contract clauses that cause most problems and recommends revisions
    
    

• Proper allocation of risk of loss

  • Indemnification
    
    

• Sensitive evaluation of extenuating circumstances

Options for Review and Docketing

Please note that these procedures cover the substantive issues associated with database and software licenses. You must also confirm by consultation with your institutional purchasing agent that all applicable procurement laws and regulations have been followed.

• Licenses for software or databases under $10,000

• Licenses for software or databases over $10,000

• Licenses for custom software or database development

Under $10,000

• Use checklist

  • Components decide whether to sign contracts that deviate from normal expectations (as identified by use of the checklist)
    
    

• No review by OGC

• No docketing unless foreign

  • After you have completed the checklist review and complied with all procurement requirements, send directly to your institution's Chief Executive Officer or designee, or, if with a foreign company, to the Executive Vice Chancellor for approval and placement on the docket

Over $10,000

• Use checklist

• No review by OGC unless there are substantial deviations from normal expectations (as identified by use of the checklist)

  • Components should confer with OGC regarding such deviations
    
    

• No docketing unless over $1,000,000.00 or foreign

  • After you have completed the checklist review and complied with all procurement requirements, send directly to your institution's Chief Executive Officer or designee, or, if over $1,000,000.00 or with a foreign company, to the Executive Vice Chancellor for approval and placement on the docket
    
    

• Note OGC's involvement in the process on transmittal letter to Executive Vice Chancellor

Custom Development

• Use checklist

• Involve OGC in the process from the beginning

  • Complete review of all terms of contract, including but not limited to deviations from normal expectations
    
    

• After you have completed the checklist review and complied with all procurement requirements, send to OGC for recommendation to your Chief Executive Officer or, if over $1,000,000.00 or foreign, to the Executive Vice Chancellor for approval and placement on the docket

Summary

• Online resources can improve work flow and turn-around at component and System levels

• Don't forget to consult with institutional purchasing agent to confirm that all applicable procurement laws and regulations have been followed.

• Business Procedures Memorandum 48-05-92

• Refer to our supplementary materials:

  • Learn to spot problem areas in typical contracts

  • Analyze sample contract clauses

  • Use checklist to generate list of recommendations

  • Edit clauses to conform them to checklist requirements

  • Consider effects of extenuating circumstances on normal expectations

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