RE: NEW VERSIONS OF MODEL LICENSES RELEASED

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

	 Often State law specifically excludes the possibility of a state
institution accepting indemnity clauses. The following is an
interpretation and reaction to a recent publisher license requesting
indemnification from Amy Kelso, Associate University Attorney at UNC
Charlotte it is applicable only to North Carolina state entities but other
states probably have similar laws.


	North Carolina laws and regulations provide that contract
provisions such as limitations on the lessor's liability, waivers of the
limits of the University's liability, and hold harmless or indemnification
clauses in favor of the lessor are contrary to public policy and are
therefore void. Specifically, under the North Carolina Tort Claims Act
(N.C. Gen. Stat. 143-291 et seq.) a State entity cannot waive the State's
sovereign immunity and assume liability for actions not covered by the
Tort Claims Act, in a forum other than the Industrial Commission, for an
amount greater than allowed under the Tort Claims Act ($150,000), or for
liabilities different from the liabilities allowed under the Tort Claims
Act (such as attorney's fees). Agreeing to such terms in violation of the
Tort Claims Act would render that agreement void.

			Chuck Hamaker
			UnC Charlotte

			-----Original Message-----
From:	Diane Frake [SMTP:DFRAKE@vermontlaw.edu]
Sent:	Wednesday, May 10, 2000 11:11 AM
To:	liblicense-l@lists.yale.edu
Subject: Re: NEW VERSIONS OF MODEL LICENSES RELEASED

John, thanks for putting this on the listserv.  It's good stuff.  I have
only glanced at the consortial agreement and have a concern about one of
the provisions - the indemnity clause.  At an excellent workshop on
understanding license agreements, the presenter, a lawyer from MIT, said
under no circumstances should you agree to an indemnity clause (especially
if it's for any claims that might arise).  It could result in unlimited
damages for your institution.  I don't sign any agreements with an
indemnity clause.  When I am modifying an agreement, I always remove the
clause.  It would be great if this were not in the model agreement, or
indemnity was limited to bad acts and was reciprocal.  It would give
libraries more leverage in negotiating agreements.