REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
January 9, 2024
FROM
LYNN FYHRLUND, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
Non-Financial End User License Agreement with TechSmith, Corporation for Camtasia Software
End
RECOMMENDATION(S)
Recommendation
1. Approve non-financial End User License Agreement, including non-standard terms, with TechSmith Corporation for the use of Camtasia video editing software, for the period commencing on the date of first use of the software and continuing until terminated.
2. Authorize the Chief Information Officer or Assistant Chief Information Officer to electronically accept the End User License Agreement, and any future updates, subject to review by County Counsel, provided that such updated terms do not substantively modify the terms of the End User License Agreement.
3. Direct the Chief Information Officer or Assistant Chief Information Officer to transmit any future non-substantive updated terms to the End User License Agreement to the Clerk of the Board of Supervisors within 30 days of acceptance or execution.
(Presenter: Lynn Fyhrlund, Chief Information Officer, 388-5501)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
FINANCIAL IMPACT
Approval of this item will not result in the use of Discretionary General Funding (Net County Cost). The End User License Agreement (Agreement) with TechSmith, Corporation (TechSmith) is non-financial in nature and does not commit the County to make any purchases. If future purchases are made under the Agreement, the Innovation and Technology Department (ITD) will adhere to County purchasing policies and return to the Board of Supervisors (Board) for approval, if necessary.
BACKGROUND INFORMATION
The ITD Business Solutions Development Division (Division) develops, maintains, supports, and enhances business applications for hardware and software platforms used by County departments. The Division also consults with County departments to identify ways to increase efficiency through technology, including services such as process reviews, cost analysis, and overall recommendations for the acquisition and integration of new systems. Various departments within the County utilize video editing software to train their personnel, create presentations, and more effectively relay information.
Camtasia is a software suite created and published by TechSmith, which is used for creating and recording videos, tutorials, and presentations. The software suite has an ease of use and range of features including applications with videos for internal training, virtual/in-person learning, and high-quality editing. Currently, the Division’s Geographic Information System (GIS) team prepares training videos using Camtasia for the County’s annual homeless Point-In-Time Count so that volunteers know how to load and use required phone applications, collect information, and submit surveys. The Division’s Web Team also uses Camtasia when creating training videos to manage content on the County’s website content management system. Approval of the Agreement will allow ITD to increase its capacity to record, edit, and distribute videos for a variety of uses. Camtasia was selected based on its diverse functionality, usability, and value. The Division has been using Camtasia software since 2018 and is now required to accept the Agreement to continue use of the software.
The Agreement is TechSmith’s standard commercial contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. The Agreement is a non-negotiable clickwrap agreement accepted when downloading the software. The non-standard and missing terms include the following:
1. Governing law is the State of Michigan.
• The County standard contract requires California governing law.
• Potential Impact: The Agreement will be interpreted under Michigan law. Any questions, issues or claims arising under this Agreement will require the County to hire outside counsel competent to advise on Michigan law, which may result in fees that exceed the total Agreement amount.
2. TechSmith may assign the Agreement without notice to the County and without the County’s approval.
• The County standard contract requires that the County must approve any assignment of the contract.
• Potential Impact: TechSmith could assign the Agreement to a third party or business with which the County is legally prohibited from doing business due to issues of Federal debarment or suspension and conflict of interest, without the County’s knowledge. Should this occur, the County could be out of compliance with the law until it becomes aware of the assignment and terminates the Agreement. County Counsel cannot advise on whether and to what extent Michigan law may permit or restrict a party’s right to assign without an express provision in the Agreement.
3. There is no provision in the Agreement addressing each party’s responsibility for paying attorneys’ fees.
• The County standard contract requires each party to bear its own costs and attorney fees, regardless of who is the prevailing party.
• Potential Impact: County Counsel cannot advise on, whether and to what extent, Michigan law may affect a party’s requirement to pay the prevailing party’s attorneys’ fees and costs in a legal action where no specific provision is provided in the Agreement.
4. The Agreement does not require TechSmith to indemnify the County, as required by County Policies 11-05 and 11-07, including for intellectual property infringement claims.
• The County standard contract indemnity provision requires the contractor to indemnify, defend, and hold County harmless from third party claims arising out of the acts, errors or omissions of any person. The standard contract provision for intellectual property indemnity is: Contractor will indemnify, defend, and hold harmless County and its officers, employees, agents and volunteers, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement of any United States patent, copyright, trademark or trade secret (Intellectual Property Rights) by any goods or services.
• Potential Impact: TechSmith is not required to defend, indemnify or hold the County harmless from any claims, including indemnification for claims arising from TechSmith’s negligent or intentional acts and intellectual property infringement. If the County is sued for any claim, including intellectual property infringement based on its use of TechSmith’s software or services, the County may be solely liable for the costs of defense and damages, which could exceed the total Agreement amount. County Counsel cannot advise on whether and to what extent Michigan law may allow the County to require TechSmith to defend or indemnify it absent an express provision in the Agreement.
5. The County is required to indemnify TechSmith against third party claims arising from the County’s use of the software, County content, County’s breach of the Agreement, the County’s infringement or other violation of the software, or any other intellectual property right.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify TechSmith, the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against TechSmith without such limitations and the County could be responsible to defend and reimburse TechSmith for costs, expenses, and damages, which could exceed the total Agreement amount. County Counsel cannot advise on, whether and to what extent, Michigan law may limit or expand this Agreement term.
6. The Agreement does not require TechSmith to meet the County’s insurance standards as required pursuant to County Policies, 11-05, 11-07 and 11-07SP.
• County policy requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department and as set forth County policy and in the County standard contract.
• Potential Impact: The County has no assurance that TechSmith will be financially responsible for claims that may arise under the Agreement, which could result in expenses to the County that exceed the total Agreement amount.
7. TechSmith’s maximum liability to the County is limited to the license fees paid for the Software that gave rise to the claim without exclusion.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Agreement amount leaving the County financially liable for the excess. County Counsel cannot advise on, whether and to what extent, Michigan law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
8. Venue for disputes arising under the Agreement is in Ingham County, Michigan.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Having a venue in Ingham County, Michigan may result in additional expenses that exceed the amount of the Agreement.
ITD recommends approval of the Agreement with TechSmith, including non-standard terms, to allow ITD to utilize video editing software that will support training, presentation, and learning.
PROCUREMENT
The Agreement, including non-standard terms, will be used to accompany future purchase orders to be approved, as necessary, per County Policy 11-04, Procurement of Goods, Supplies, Equipment, and Services, provided that TechSmith does not substantively modify the terms of the Agreement.
Camtasia was initially used in 2018 by the Division’s GIS team based on timing constraints to meet a project deadline as staff were already familiar with its features. Other similar software, such as Snagit, were evaluated but did not possess the capabilities needed to complete the project. Camtasia continues to meet the County’s need, therefore a competitive process to consider an alternative video editing software was not completed. To select and implement a new product at this time would be cost prohibitive due to downtime while switching products, testing, and training staff on the new products. The Purchasing Department approves of this non-competitive justification.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel, 387-5455) on November 27, 2023; Purchasing (Ariel Gill, Supervising Buyer, 387-2070) on November 22, 2023; Risk Management (Gregory Ustaszewski, Staff Analyst II, 386-9008) on November 28, 2023; Finance (Iliana Rodriguez, Administrative Analyst, 387-4205) on December 14, 2023; County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5423) on December 18, 2023.