Reviewing and Negotiating License Agreements

Pamela Kontowicz Reference/Serials Librarian Monmouth College Library Monmouth, İllinois U.S.A. email: pkontowicz@monm.edu

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