Software Licensing and Contracts FAQ
In order to install software on your computer, you need to make sure all Licensing Agreements and Terms of Service do not violate state law.
Below is an FAQ with Sarah McGee, Minnesota State’s Assistant General Counsel. Sarah’s focus is in intellectual property and information technology.
Note: At the bottom of this FAQ, there is a link to a form to get you started on this process.
Why is it necessary to have Office of General Council review the contract of software i want to install on my computer?
Board Policy 5.14, Part 3, requires review of any terms of service.
From Subpart B. “Contract form approval”: Any contract or other legally binding agreement, including grant agreements, or memorandums of understanding/agreement that create legally binding obligations and responsibilities, that does not adhere to system approved contract templates must be approved in advance by the office of general counsel or attorney general’s office.
This is required because most third-party agreements (i.e., not using our templates), contain terms that would be a §16A violation if signed. §16A.15, subd. 3 says a knowing violation by an employee can be just cause for the employee’s removal.
But the software is FREE! Do I still need permission?
Yes. If you are agreeing to a terms of service, that’s a contract. That’s basically any time an account is created with a website, or any time software is installed.
What info or items should a user be prepared to share with OGC to make this process go as smoothly as possible?
A brief description of what the service does, what private data the service will access or store, what systems it will integrate with (does it plug into ISRS? D2L?), and a copy of all applicable terms of service in WORD format, if possible. Counsel does not have time to research the functionality of each product.
Is there an online form staff can use that asks all the right questions?
Not yet. With e-procurement, one will be coming.
Can staff do anything prior to contacting you to help the process?
Understand how the product works and whether it will access/store any private data. IT Security should do a baseline security review of the product.
Before sending anything to OGC or the AG’s office: Find a human being at the software company who will let you know if the company is willing to entertain changes to their terms of service. I can’t stress this enough. Many small software companies will not change their terms of service (or it is impossible to find a human). It is not an efficient use of our time to red-line contracts for a company that won’t make changes. Many are amenable to changes if you explain that we are a government entity and cannot agree to certain contractual terms, but others are not flexible because they can’t afford legal counsel to review our changes.
What timeline can a user expect for a turn-around?
2-3 weeks is common, but it can depend on the number of rounds of revision with a company, as well as other projects assigned. There can be delays in processing contracts if emergencies arise (data breaches, other system-wide issues).
If the company refuses to comply with our needs, is there any recourse? Finding a new vendor willing to work with you.
Is there a list of previously-approved software that staff can review?
Not at this time. The AG’s office reviews contracts, as well as the OGC. We don’t know what they have reviewed, and they don’t know what we have reviewed. Each campus maintains their own signed contracts at this time, so we don’t have a list of what is out there. Furthermore, just because one campus is using a product, doesn’t mean they got it approved.
Do users need to contact OGC for version changes or when a company sends out a notice of an “update to the EULA or TOS?”
Yes, that is a new legally binding agreement.
Does contacting OGC incur any charges for the department?
ITS has created a form to walk you through this process. Click this link to go to the IT Resource Request form. Here’s the full link:
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