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Reviewing and Negotiating License Agreements
Pamela Kontowicz Reference/Serials Librarian Monmouth College Library Monmouth, İllinois U.S.A. email: [email protected]
Introduction
Will show you how to review and negotiate any license agreement
Three parts to the process:Part 1 - Reviewing a license. Part 2 – Negotiating a licensePart 3 – Final acceptance of a license
Practical Exercise
STEP I: Reviewing a License
The basis for evaluation of any license is the Turkish National Site License ( TRNSL)
Serves as a model license for ANKOSa. Contains the clauses ANKOS would like to find in
every contract.
b. Used for comparison with vendor’s site licenses.
c. Copy of the license can be found at: http://www.ankos.gen.tr
STEP I: Reviewing a License License Comparison Form
STEP I: Reviewing a License License Comparison Form
TRNSL Review and Sample Clauses
Section I - Definitions
Defines terms used in agreement.
Not all vendors have a definitions section. Sometimes the terms are defined as they come up.
Point to look for: definition of “Authorized users”
Sample Clauses
Blackwell:
Elsevier
Section II - Grant of License and Fees
Points to look for: Length of agreement should be defined. (also called
“term of agreement”)
Should not renew automatically.
When is payment due? Should ask for the period to be extended to 90 days.
Can new members join the consortium at any time? Some say yes, some say no.
Sample Clause
Length of Agreement (automatic renewal)
Sample Clause
Length of Agreement (automatic termination)
Sample Clauses
Payment of fees. (Emerald)
New members (Project Muse)
Section III - Usage Rights
Very important section-tells you what you can and cannot do with a database.
Violations of these clauses can result in termination of access to the database.
Points to look for: Interlibrary Loan rules and whether course packs and electronic reserves are allowed.
Sample Clauses
Interlibrary Loan (Wiley)
Interlibrary Loan (American Chemical Society)
Sample Clauses
Interlibrary Loan (not permitted-World Scientific)
Sample Clauses
Course packs and electronic reserves (permitted-Cambridge University Press)
Sample Clauses
Course packs and electronic reserves (must ask permission-Taylor & Francis)
Section IV - Prohibited Uses
These are things you cannot do with the database.
If you do these things, it is the fastest way to lose access to the database.
Typical clauses are no use of robots, no downloading of entire issues, no electronic ILL.
Sample Clauses
Taylor and Francis
Section V - Publisher’s Warranties, Limitations of Liability, Indemnities, etc.
These clauses are very tricky. They use a lot of legal language in an effort to prevent ANKOS (or anyone else) from suing a publisher.
If you see a large section in BOLD TYPE, this is usually a warranty and limitation of liability clause.
These normally do not cause problems. But check for any limitations on payment or time to bring an action in court.
ISI (warranty clause)
Sample Clause
Elsevier (limitation on liability)
Section VI - Undertakings by Publisher
This is what the publisher agrees to do.“To use reasonable efforts” to make the database
available at all times.
To give notice of scheduled maintenance.
To give notice if they are going to make major changes
Point to look for: Do they agree to provide usage statistics? Are they COUNTER compliant?
Sample Clause
Taylor and Francis
Sample Clause
Usage statistics (Springer)
Section VII - Undertakings by Consortium
This is what ANKOS agrees to do.
Must notify users of the limitations on use.
Point to look for: A clause in which the consortium and its members are not liable for a breach of contract providing they didn’t ..”cause, knowingly assist or condone the continuation of such breach.”
Sample Clause
Licensee’s undertakings (Taylor & Francis)
Sample Clause
Consortium not liable for breach. (Blackwell)
Section VIII - Undertakings by both parties
Just a nice to have section.
Section IX - Term and Termination
Important section.
Points to look for.a. Both parties should have the right to
terminate the agreement.
b. Is there archival access to the subscribed material after the termination of the contract? This varies by the type of database. Always ask about this.
Sample Clauses
Termination clause (Blackwell)
Sample Clauses
Archive availability after termination (yes)
Archive availability after termination (no)
Section X - General
Contains “boiler plate” clauses.
Points to look for:a. How are changes made to the agreement?
b. The time period of the notice provision.
c. Where is the place of jurisdiction?
Sample Clauses
Changes to the agreement (Ebrary)
Notice provision (CUP)
Sample Clauses
Jurisdiction (MathSciNet)
Step II: Negotiations.Based on the review, a list of questions is prepared for the vendor.
Step II: continued
The list of questions, the completed review and a copy of the contract are then sent to the other members of the license committee.
Contact person sends question list to vendor. Also sends copy of TRNSL if it wasn’t sent earlier.
Step II: continued
Answers from the vendor are reviewed against the TRNSL to see if answers are acceptable. If not, negotiations continue until the contract is acceptable to both parties.
STEP III: Accepting the Contract
When the committee decides that the terms of the license are acceptable, the committee notifies ANKOS headquarters that the terms are acceptable and the contract is signed.
PRACTICAL EXERCISE & QUESTIONS