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CONTENTS I. Introduction, 3 II. Technology Agreements, Types of Software, Methods of Project Delivery, and Related Issues, 4 A. Comparison of Technology Contracting to Other Public Contracting, 4 B. Licenses and Other Forms of Agreements, 4 C. Types of Software Used by Transit Agencies, 5 D. Design-Build Procurement, 6 E. Maintenance and Support and Service Level Agreements, 7 F. Acquisition of Technology Through Non-Technology Contracts, 7 G. Escrow Agreements, 7 H. Nondisclosure and Confidentiality Agreements, 8 III. State Statutes Applicable to Technology Contracting, 8 IV. Applicability of State Contract and Tort Law and Article 2, Uniform Commercial Code, to Technology Agreements, 10 A. Applicability of State Law on Contracts and Torts, 10 B. Article 2, Uniform Commercial Code, 12 C. Uniform Computer Information Transactions Act, 16 V. Drafting Technology Agreements, 17 A. Issues and Clauses to Consider When Drafting Technology Agreements, 17 B. Types of Specifications, 18 C. Transit Agenciesâ Use of Staff, Contractors, or Consultants to Develop Specifications, 18 D. Transit Agenciesâ Use of Requests for Information or Proposals or a Separate Contract to Develop Specifications, 18 E. Interfacing With Legacy and/or Proprietary Technology, 19 VI. Technology Contracting and Cloud Computing, 20 A. Cloud Computing as an Alternative Delivery Mode, 20 B. Risks to Address by Contract and Other Factors to Investigate, 21 C. Negotiating the Terms of a CSP Contract, 22 D. Checklist of Provisions for a Cloud Computing Contract, 22 E. Liability Issues and Indemnification, 23 VII. Limitations on Liability, Indemnification, and Representations and Warranties, 24 A. Limitations on Liability, 24 B. Indemnification, 25 C. Representations and Warranties, 26 VIII. Technology Contracts and Protection Against Claims Arising Under State Privacy and Data-Breach Notification Laws, 27 A. Introduction, 27 B. States Having Breach Notification Statutes That Apply to Government Agencies, 27 C. Claims Against Transit Agencies for Privacy Violations, 27 IX. Federal and State Law Applicable to the Protection of Trade Secrets, 28 A. Defend Trade Secrets Act of 2016, 28 B. Uniform Trade Secrets Act, 28 X. Technology Contracts and Protection of a Transit Agencyâs Rights Under the Copyright Laws, 30 A. Introduction, 30 B. Technology That Is Copyrightable and Patentable , 30 C. Copyrightability of Digital Intellectual Property, 30 D. Whether the Government May Have a Copyright in Digital Intellectual Property, 32 E. Identification of the Owner in the Contract Documents, 32 F. FTA Rights in Data Involving Experimental, Developmental, or Research Work, 34 G. Digital Millennium Copyright Act, 35 XI. Technology Contracts and Protection of a Transit Agencyâs Rights Under the Patent Laws, 37 A. Patentability of Technology, 37 B. Patent Rights of the Federal Government and State Governments, 38 C. Patents Developed With Federal Funding, 39 D. FTAâs Requirements Involving Experimental, Developmental, or Research Work, 40 XII. Whether Transit Agency Data Are Subject to the Freedom of Information Act or a Freedom of Information Law, 40 A. Federal FOIA Issues, 40 B. State Freedom of Information Laws, 40 XIII. Negotiating a Better Price for a Technology Project, 44 A. Transit Agenciesâ Authority to Negotiate a Better Price, 44 B. State Statutes Authorizing Negotiation, 44 C. FTA Guidance for Recipients on Third Party Contracting, 46 XIV. Best Practices for Technology Contracting by Transit Agencies, 46 A. Transit Agenciesâ Significant Technology Projects, 46 B. Transit Agency Guidance and Best Practices for Technology Projects, 46 Conclusion, 47 Appendices, 49 Acronyms and Abbreviations, 50
