Fiscal Note
The fiscal impact depends on particular claims or suits in which a vendor may seek indemnification; in which case the City may have coverage for such indemnification under its current insurance policies. Minor savings may be achieved from efficiencies gained in the purchasing process.
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SUBSTITUTE - Authorizing staff designated by the Information Technology Director or designee to click on End User License Agreements for licensing and use of certain software, and authorization for indemnification of the software vendor by the City.
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The City of Madison regularly purchases proprietary, off-the-shelf software to perform routine or administrative tasks. Examples of this software are Adobe and Microsoft products. Frequently, the only way to purchase the software is through an online download or subscription enrollment which can only be completed by clicking on a set of legal terms and conditions commonly referred to as an End User License Agreement (“EULA”). For purposes of this resolution, “EULA” will mean any set of click-through legal terms required to download software or subscribe to software as a service which the City has no opportunity to negotiate.
A EULA is a contract and, depending on the vendor or the nature of the software, the EULA may contain a clause that requires the City to indemnify the vendor, its parent, partners, subsidiaries, officers, agents and employees and hold them harmless from third party claims and losses, including reasonable attorney’s fees, resulting from the City’s breach of the EULA, negligent or wrongful acts, or violations of any laws. Frequently, there is no opportunity to negotiate the legal terms nor to require the vendor to agree to City of Madison policies.
Pursuant to APM 1-1, City employees do not have authority to sign or otherwise enter into contracts without specific authorization through an ordinance or from the Common Council. APM 1-1 further prohibits the City from entering into a contra...
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