Here at Coventry University we had the clause "The client
agrees to fully indemnify the FT against any losses, damages or costs
incurred by the FT as a result of any breach of these warranties"
removed from our agreement.
However, they wouldn't be moved to amend more than the one statement, so
we reluctantly accepted. They hadn't dealt with both statements at the
same time and said that they weren't prepared to go through the
procedure again.
(We have since cancelled our subscription for budgetary/use reasons).
They can and will amend their licence, so I would endorse Charles'
advice - if it looks as if they will lose a subscriber they might behave
differently. If they won't amend it, then it's their loss and if enough
Universities ask for the same phrases amended or removed before signing
up then they might re-think their attitude.
Sandy
Mrs. S. Forster
Head of Bibliographic Support
Coventry University
Lanchester Library
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of John Cox
Sent: 29 July 2009 08:35
To: [log in to unmask]
Subject: Re: [LIS-E-RESOURCES] FT licence issues
Charles has given exactly the right guidance. On legal liability, you
will
find wording to fit his recommendations in the model licences on
www.licensingmodels.com. These model licences are being updated, but
the
versions on this site are still valid.
John
John Cox
Managing Director
John Cox Associates Ltd
Rookwood
Bradden
TOWCESTER
Northants
NN12 8ED
United Kingdom
Tel: +44 (0) 1327 861184
Fax: +44 (0) 20 8043 1053
E-mail: [log in to unmask]
Web: www.johncoxassociates.co.uk
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of
[log in to unmask]
Sent: 28 July 2009 09:34
To: [log in to unmask]
Subject: Re: [LIS-E-RESOURCES] FT licence issues
Let me comment as someone who spent 8 years working for electronic
publishers negotiating such clauses from the publishers' end and so I
can
claim to know a lot about their mindset.
I can see where they are coming from, but what they are demanding is
unreasonable.
I suggest you offer the FT the phrase "best endeavours" as opposed to
"reasonable efforts" - that is one stage higher, but still does not
place
you under an absolute obligation.
On legal liability, you should restrict as follows: 1. the maximum
value
of any damages payable will be the cost of the annual licence; 2. only
direct losses can be claimed back and consequential losses are
explicitly
excluded; and 3. such damages are only payable if the breach was due to
the
University's recklessness.
Now I suspect the FT will not accept the proposed amendments and will
say
"take our terms". If they do, walk away from the deal, as the wording
you
have described leaves your University in an unacceptably vulnerable
position and then publicly explain to your users why the FT is no longer
available to them.
Charles
Professor Charles Oppenheim
Head
Department of Information Science
Loughborough University
Loughborough
Leics LE11 3TU
Tel 01509-223065
Fax 01509 223053
e mail [log in to unmask]
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of Jill
Taylor-Roe
Sent: 28 July 2009 09:22
To: [log in to unmask]
Subject: [LIS-E-RESOURCES] FT licence issues
Dear Colleagues,
Has anyone else been having problems with the Financial Times Licence?
We have currently reached an impasse over one of their licence clauses
and I
am keen to ascertain whether other libraries have had similar issues.
We are fortunate to have a colleague in our Law School who is a
practising
barrister and is happy to run his eye over any licence clauses we have
concerns about. He always offers up an alternative form of wording and
up to
this point we have never had a problem with getting his amendments
accepted.
The contentious clause in the FT licence is 5.4 where we have asked for
the
insertion of the phrase "will use its reasonable endeavours" with regard
to
ensuring that users only use the licenced in accordance with the terms
of
the licence.
Our reasoning is that we are a reputable educational organisation which
carries our teaching and research for the public good - we are not in
business to make commercial profits. We can and will take sensible
measures
to ensure that our staff and students use the resources we licence in an
appropriate manner, and will deal promptly and effectively with any
infringements, but beyond that we cannot and will not go. This seems to
us
to echo the spirit of the JISC standard licence which uses the phrase
"reasonable endeavours" in several key clauses.
Later in the same clause there is phrase which states that "The client
agrees to fully indemnify the FT against any losses, damages or costs
incurred by the FT as a result of any breach of these warranties"
The view from our Legal Eagle, backed up by colleagues in the Research
Services Division is that We must not accept a limitless indemnity
clause as
this would leave the Library dangerously exposed because we would be
liable
for any costs that might be incurred by a breach of contract. ( note it
is
deemed to be the Library that is exposed to the risk and not the
University!
)
In the past we have always been able to come to a reasonable
accommodation
with vendors over licence clauses and I think this will be the first
time
that we have had to withdraw a service because we cannot reach
agreement. I
have referred the FT to the JISC standard license as a model of how to
balance the legal requirements of licensor and licensee but I really
don't
know what to do next and look forward to hearing others' comments.
Regards,
Jill
Jill Taylor-Roe
Head of Liaison & Academic Services
Robinson Library
Back Jesmond Road West
Newcastle upon Tyne
NE2 4HQ
tel 0191 222 7652
fax 0191 222 7605
email [log in to unmask]
lis-e-resources is a UKSG list - http://www.uksg.org/serials UKSG groups
also available on Facebook and LinkedIn
lis-e-resources is a UKSG list - http://www.uksg.org/serials
UKSG groups also available on Facebook and LinkedIn
lis-e-resources is a UKSG list - http://www.uksg.org/serials
UKSG groups also available on Facebook and LinkedIn
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