7.8.2.1. PURCHASING SOFTWARE WITH A PROCARD

Notice: The University is developing a new operational framework to streamline Software purchasing and facilitate Cardholders’ compliance with the requirements of this Section. Please consult the current operational procedures at the following link: Software Buying Guide.

A.   Scope and Applicability.  This Section governs the purchase of software using a ProCard and incudes any purchase that involves: a “Clickwrap Agreement” as defined below; any subscription service, Software as a Service (SaaS), cloud-based application, or web hosted  application; and any software utilizing or incorporating artificial intelligence or machine learning (“AI”) (collectively, “Software”). 

“Clickwrap Agreement” means standard, non-negotiated online terms and conditions that either: (i) require a Cardholder to click “I agree” or a similar affirmative button before obtaining the vendor’s Software, or (ii) state that, by using the Software, the Cardholder agrees to the online terms and conditions. Clickwrap Agreements include, without limitation, terms of service, terms of use, end-user license agreements, and subscription agreements presented in digital form.

These requirements are in addition to and not separate from all other ProCard  policies and procedures set forth in this Part 7, and do NOT replace or supersede existing rules and requirements or any other applicable University polices. 

B.  Risks of Clickwrap Agreements.  As a rule, Clickwrap Agreements are one-sided, non-negotiable, and involve low dollar thresholds. Vendors typically draft terms to their advantage and without regard to the status of the user or use case. As a result, Clickwrap Agreements are typically disadvantageous to the University, include terms that conflict with the University’s unique status as a government agency and institution, and fail to include terms required by law.

Even though the terms and conditions in Clickwrap Agreements may be void and subject to challenge, Software Clickwrap Agreements pose business risks. The University understands that efficiency necessitates procuring certain Software involving a Clickwrap Agreement.  Moreover, the University recognizes that Tex. Educ. Code Ann. § 51.9335 mitigates certain risks posed by Clickwrap Agreements. Accordingly, the University permits limited use of Clickwrap Agreements for ProCard purchases under those circumstances and conditions described below.     

C. University License Search—Must Purchase Software Through Existing License 

The University and the University of Texas System negotiate comprehensive licenses and agreements with certain software providers that contain terms designed to protect important University interests such as data security, privacy, accessibility, legal and regulatory compliance (e.g., FERPA, HIPAA), intellectual property, and financial integrity. In some instances, a license under the University contract may be more expensive than a license that can be obtained separately, but the University’s license will include these negotiated protections and reflect the University’s calculated risk assessment.

Cardholders may not use a ProCard to purchase a separate version of Software that is already covered by a University-negotiated license or agreement. Before using a ProCard to purchase Software, Cardholders must verify that no such formal contractual arrangement exists. Pending development of a search tool to facilitate Cardholders’ compliance with this Section, Cardholders must contact Procurement@austin.utexas.edu to determine whether the software to be purchased is covered by a University-negotiated license.

If the Cardholder believes that the University-negotiated license or agreement does not fulfill the Cardholder’s specific operational need, the Cardholder must obtain express approval to purchase the software outside the University license through the process set forth in Section 7.8.2.3. 

D. DIR Software Search—Must Purchase Software Through DIR License 

Leveraging the State of Texas’s purchasing power, the Texas Department of Information Resources (“DIR”) manages a competitive procurement process through which State agencies, including institutions of higher education, may purchase more than 10,000 different Software products/services. DIR maintains a regularly updated list at: https://dir.texas.gov/search-contracts-vendors?query= (the “DIR List”).

If no University-negotiated license is available as described in 7.8.1.1(C), Cardholder must search the DIR List to determine whether the Software is available for purchase through DIR. If the software can be purchased through the DIR, then Cardholder must purchase the software through DIR. ProCard currently cannot be used to purchase Software through DIR, so a University-issued purchase order should be used. 

E. Personal Credit/Debit Card Use Not Allowed 

The University will not reimburse any purchase of Software that is paid with a personal credit card, debit card, or personal account or non-University funds. All Software purchases must be made using one of the following methods (i) a ProCard, if authorized under this Section; (ii) a purchase order through POINT Plus; or (iii) a negotiated agreement approved and executed by the Business Contracts Office. No exceptions will be granted if Software is purchased with personal funds or non-University funds.

F. Assessment and Approval Required Every 12 Months. At least once every twelve (12) months, Cardholders must analyze each purchase, subscription, and renewal of Software under this Chapter to confirm that such purchase, subscription, and/or renewal complies with the rules and requirements set forth herein. Software purchased during the previous 12-month period as Low Risk Software must be reaffirmed as such by the Cardholder, and Higher Risk Software that was approved during the previous 12-month approved must be reapproved under Section 7.8.2.3.

Part 7. Purchasing - Table of Contents