State of Oregon : Oregon.gov Home Page : State of Oregon



Software License Review ChecklistChoice of Law: Oregon law (in addition, subject to US import/export laws is ok). Required. DOJ has a carve out of vendor will not agree to Oregon law.Venue for lawsuits: Oregon courts. RequiredJurisdiction over parties: Oregon courts, no consent to jurisdiction in any other courts. RequiredSovereign immunity: no waiver of any immunity, especially 11th Amendment of US Constitution. RequiredLicense: make sure terms of license cover the intended use, including the use by State’s other agents or contractors if such access is contemplated. Review license grant use rights to determine if agency can use license as intended. Also, be aware of the licensing metric to understand how many licenses are measured in order to be in compliance. Best practice.Representations (in general): Maybe. Not often a major issue, but can be if state representations and warranties are inappropriateBy Company: check name of licensor, authority to licenseBy State: make sure appropriateRepresentations as to Appropriations/Funding: subject to State having appropriation or other funding - Art IX, §4 of Oregon Constitution. RequiredPayment: Requirednot late until 45 days after -- nice if it is 45 days after receipt of the invoice - but usually will be 45 days after date of invoiceno payment of Company’s expenses [potentially unconditional debt - violation of Art XI, §7 of Oregon Constitution, if not agreed to by State]if agree to pay expenses, limited by Oregon Travel Policyall payments are subject to ORS 293.462Late fees: make sure there is a limitation for requirements of law [ORS 293.462 - interest – 2/3 of one percent] RequiredIndemnity (third party claims): Company indemnifying State: probably only be able to get intellectual property indemnification; but would be nice to get general indemnity. State indemnifying Company, limit by Art XI, §7 of Oregon Constitution and Tort Claims Act (ORS 30.260 – 30.300) Required if Licensor requests indemnification.Limitation of Liability: Good practice.Look at limitation amount - value of contract? Amount paid during last 12 months?Consequential damages - review list of items State can claim loss; if contract is for protection of data, data loss should not be in the list of items that are excluded from coverageInsurance: probably will not be able to get coverage [requirements for State set by Oregon Supreme Court, tort claims limits] Business call – consult with RiskTermination: Must have ability to terminate for breach, watch the period on ability to cure. Must have ability to terminate for non-appropriation RequiredFor change in law, bankruptcy of Company, would be nice Good practiceFor convenience, would be nice Good to have, not required.Early termination fees/charges: do not agree to pay [potentially unconditional debt - violation of Art XI, §7 of Oregon Constitution] Required if clause violates Constitution.Other Remedies: usually state that replacement, fix by Company is the State’s sole remedy - it is nice to remove this limitation but may not be able toGood practice, business needsConfidentiality: make sure there is a limitation for requirements of law [limit State obligation by Oregon Public Records Laws (ORS 192.410 – 192.505) and Oregon Custody and Maintenance of Records Laws (ORS 192.005-192.170)]Seek to add a provision that invokes the Oregon Consumer Identity Theft Protection act (ORS 646A.600 through 606A.628) if there is Personal Protected Information (PPI) involved at the heart of the matter, such as, if it is a DMV software that holds name and SSN, or Human Resources software that holds the same.State’s Data, Ownership and Return: make sure no provision giving Company ownership of State Data; make sure State gets it back upon expiration/termination. Required if contractor gets ownership of state dataAutomatic renewal: be careful of provisions, review notice of termination requirementsAttorneys Fees: do not agree to pay (unconditional debt - violation of Art XI, §7 of Oregon Constitution) RequiredArbitration: do not agree to binding arbitration; mediation is ok. RequiredJury Trial: do not waive. RequiredCertifications: tax certification, probably will not be able to get in license, but must be in the PO or other contract with entity State is buying software fromAUP (Acceptable Use Policies): review, but generally should be ok (Good practice)Defense of claims: We can allow the contractor to defend us subject to AG approval and AG approval for settlements. Required Foreign contractors: Anyone doing business with us must register in the state (ORS 60.701) MaybeOther terms and provisions: look carefully at the document, does it reference any other documents or terms and provisions in hard copy or on-line [REVIEW THEM] Good practice. ................
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