RE: Injunctive Relief clauses

["Rick Anderson" <rickand@unr.edu>]

> How are libraries handling injunctive relief clauses in contracts?
> Parallel language sometimes specifies prior agreement that "breach would
> cause irreparable harm"

I always do my best to negotiate such language out or at least modify it,
and I'm usually successful.  My line of argument is usually that, in fact,
there are many ways to technically breach the terms of a license agreement
without causing serious or irreparable harm to the provider, so we can't
sign a contract that says otherwise.  Sometimes I'm able to get that
clause taken out entirely.  More frequently, I can get the provider to
change the clause to say something like "a MATERIAL breach COULD cause
irreparable harm" (which is true).

My guess is that if you can get the license changed in this way, a
perfectly reasonable burden would be placed on the provider to demonstrate
that a breach actually did cause irreparable harm, whereas if you
stipulate up front in the license that _any_ breach _by definition_ causes
irreparable harm, you've lifted that burden from the provider beforehand.  
That's just a guess, though -- hopefully John Cox or someone else with a
real legal background will weigh in on this question.

Rick

----
Rick Anderson
Dir. of Resource Acquisition
University of Nevada, Reno Libraries
(775) 784-6500 x273
rickand@unr.edu