Re: Proteome BioKnowledge Library License

["rrhoon.mail.ncsu.edu" <robert_hoon@ncsu.edu>]

Phil-

I've seen such clauses in other form agreements; as a public entity with
all associated baggage e.g. Public Records Act, Uniform Trade Secrets Act,
state sovereignty, and numerous contract prohibitions, I have typically
first requested they delete the clause entirely (citing the inability
and/or lack of authority to contractually modify existing state law
regarding public records and/or commercial/trade secrets provisions), if
they refuse I require the inclusion of something like the following
prefacing their language:

" 8.1 Subject to applicable law, including but not limited to, the [State]
public records act, [State] commercial/trade secrets act, . . ."

I believe agreeing to the clause absent the foregoing qualification is an
ultra vires act (waiving applicable law exceeds your authority); New York
obviously has a public records act (in addition to FERPA obligations), so
your public records act will govern your obligations regarding release of
cost data; and if it is drafted as some other public records acts, it may
in turn reference the state's trade secrets statute(s) -- New York may
have a home grown commercial trade secrets act or has adopted the Uniform
Trade Secrets Act used in many states.  The point being, there are
overriding state statutes which will dictate the release of the pricing
info, not the proposed contractual provision -- just because Incyte says
its confidential does not render the info legally confidential.

I hesitate to digress more, but if they still can't live with the
qualification above, you can offer them notice of a pending public records
request, providing them (entirely their obligation) 10 business days from
your written notice to seek and secure a temporary restraining order
(TRO), precluding the release of the information until their hearing
before a judge to determine the nature of the pricing information
(satisfies state's test for confidential or trade secret info or it does
not).  I personally don't like this addition -- problem with this approach
is someone receiving the request for release of the information has to
know of the notice obligation. So you've got to close this loop somehow.
Probably more than you wanted to know. . .good luck.

If you wish to discuss further, send me a note and we can arrange a call.
rob


----- Original Message -----
From: "Phil Davis" <pmd8@cornell.edu>
To: <liblicense-l@lists.yale.edu>
Sent: Tuesday, July 02, 2002 6:12 PM
Subject: Proteome BioKnowledge Library License


> Dear Liblicense,
>
> Has anyone signed the license Incyte's Proteome database?  While there are
> some of the usual suspects in the license (governing law, legal fees,
> indemnity), the clause that gives me the biggest willies is this one:
>
> 8.1 Institution agrees that the Fees set forth in this Agreement shall be
> considered confidential information and safeguarded hereunder by
> Institution for a period of three (3) years from the Effective Date.
>
> Has anyone struck out gag clauses like this?
>
> Thanks for any advice,
> --Phil
>
> Philip Davis, Life Sciences Bibliographer
> pmd8@cornell.edu