Contract Commons: Online Legal Support for Educational Technology Acquisitions New York Law School Marcey Grigsby Smita Gulivindala Natalie Porto Brian Robinson

Making It Easier for Public Education to Obtain Better Technology The Lawyer legal help

Have you ever...  Not known which product to buy, which vendor to use, or how to go about deciding?  Lacked access to legal assistance when negotiating a contract?  Purchased technology with a form contract that didn’t memorialize your deal’s business terms?  Acquired software that didn’t do what you wanted or did things you didn’t need it to do?  Experienced a lack of support from vendors after a contract was executed?

The Challenge  Schools (and vendors) lack access to the technology contracts that reflect actual business needs and requirements.  Without legal and strategic assistance in the technology acquisition process, public education cannot acquire the best technology to support educational reform.

Presentation Outline  The Challenge  The Solution  Contract Commons  Selecting a System  Buying a System  Implementing a System  Join Contract Commons  Raffle for five hours of free legal advice

“I need to learn what the elements of a good technology contract are so I can recognize if these provisions are in the contract and make sure they get added if they aren’t.” -- Manager, Research & Assessment, California school district of 45,000 children

 “Vendor-provided agreements are one-sided and too restrictive. And we lack the resources to negotiate the terms to our favor.” -- Information Technology Director, Small School District, California

“If I’d had a good model contract, I could have stood alone better and handled the negotiations on my own.” -- Director of Educational Services in Tennessee

“We knew we needed our reports to print out in the color-coding to which we had all become accustomed, but we didn’t think to put it in the contract. Once the deal was inked, the vendor could not or would not modify the software to produce the color-coded reports.” -- Chief Academic Officer, Northern California School District

Key Challenges The public school technology procurement and contracting process faces numerous challenges due to a lack of: Knowledge about how contract terms relate to business realities. Useful contract models or alternatives to vendor-drafted contracts. Legal and strategic advice when drafting technology contracts. Access to resources about consultants and vendors that exist to help identify technology needs. Understanding of open source options. Ways to connect with others facing similar challenges. Time to address these challenges.

Why Does This Matter? Enabling Education Reform  Education reform depends on having good technology.  With appropriate technology, public education institutions can better serve their communities.  Better informed decision-making produces licenses with terms that support school district’s needs and creates more productive vendor relationships.  Effective contracts can improve upon the quality, reliability and performance of technology by:  creating more specific and attainable goals.  focusing negotiations on critical issues early, to prevent project failure during implementations.

What is Contract Commons? An online system to assist school district personnel, vendors and their lawyers in negotiating and drafting technology and software agreements. Choose a System Define Project Define Needs Identify Options Choose a Solution Acquire a System Contract Basics Reading the Contract Making the Deal Implement a System Drafting Policies Budgeting and Planning Working as a Team

Who is Contract Commons?  New York Law School “Do Tank”  Stupski Foundation  Technology Law Experts  Technology Community  Educational Community

The Goal of Contract Commons  Support the effective use of software and technology in public education.  Get vendors and districts to clearly define their needs up front.  Build a community to learn about the content and process of contract negotiations.  Connect the legal and public school education communities.

Design Philosophy Building an open community for knowledge sharing  Create a collaborative system to leverage the wisdom of the educational community  Connect vendors, educators, lawyers and procurement officials  Enable members of the community to share content  Provide resources on closed and open source

Contract Commons: What Will it Do?  Legalese “Translation” Legal terms and contract provisions explained in a library of clauses  Model Contracts Library Best of breed technology contracts with annotations provided by top legal and technology professionals  Clearinghouse Vendor, legal and business information to help choose, acquire or implement a system  Community Resources Resources provided by the community to help choose, acquire or implement a system  Dialogue and Forum Connecting members of the community to discuss technology acquisition experiences

Choosing a System Advice to Keep in Mind When Deciding Whether to Buy or Build or How to Identify the Right Vendors and their Products 1.Take an exhaustive inventory of data sources, survey user needs and goals, and choose whether to implement a data system using local staff or contracted help. 2.Get input from potential users and survey their needs. 3.Communicate with others that use the same vendor, hardware or software product. 4.Systems should be accessible from anywhere. 5.Make sure you accurately calculate the cost of a product, including maintenance and fees.

Acquiring a System Advice to Keep in Mind When Negotiating and Contracting: Far more than a statement of legal rights, a contract memorializes the business deal. 1.Define what you want to do with a technology, in detail, before you sign a contract and review those goals with users, constituents and vendor. 2.Spread your payments out over time and tie the payments to project deliverables. 3.Detail desired milestones and deliverables in your contract. 4.Know the conditions for ending the relationship and terminating the contract. 5.No matter what anyone says to the contrary, your agreement with a vendor is always negotiable.

8. LIMITED WARRANTY. The following warranty is supplied with respect to Licensed Product provided to Customer hereunder: 8.1 Conformity to Specifications. Vendor cannot assure that the performance of Licensed Product will be uninterrupted or error-free, or that all Licensed Product problems will be corrected, despite Vendor’s reasonable efforts to do so. Vendor does, however, warrant for a period of twelve (12) months after the original shipment of Licensed Product hereunder that: (a) such Licensed Product (other than Custom Programs supplied by Vendor pursuant to Vendor’s Services Policies), as originally delivered under this Agreement, will substantially conform to the applicable description and specifications contained in the Documentation delivered with such Licensed Product; and (b) Custom Programs supplied by Vendor pursuant to Vendor’s Services Policies will substantially conform to the specifications set forth in the applicable Statement of Work pursuant to Vendor’s Services Policies. The foregoing warranty shall not apply to Licensed Product that has been modified, damaged or used in a manner that does not conform to the instructions and specifications contained in the Documentation for such Licensed Product. In the event that Licensed Product does not meet the requirements of this warranty, Customer shall be responsible to so notify Vendor in writing during the warranty period and provide Vendor with sufficient detail to allow Vendor to reproduce the problem. After receiving such notification, Vendor will undertake to correct the problem by programming corrections, reasonable “work-around” solutions and/or Documentation corrections. If Vendor is unable to correct the problem after a reasonable opportunity, Vendor will refund the license fees paid for such Licensed Product and Customer’s license to use such Licensed Product will terminate. The foregoing states the complete and entire remedies that Customer has under this warranty. Vendor shall have no responsibility for any warranty claims made outside of the warranty period. Have you ever seen a nightmare clause like this in your contract?nightmare clause

Implementing a System Advice to Keep in Mind When Implementing a Technology System 1.Assign a project manager to the project who will maintain a project roadmap and up-to- date project status documents. 2.Develop and communicate a clear messages about the project for your users and other stakeholders so they understand what it is, why it’s useful, how they can be involved. 3.Integrate your new training plans with work that’s already going on in the school district. 4.Order equipment and materials with plenty of lead time. 5.Work out username and password policies and systems early.

Contract Commons and Implementing a System

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