Re: AGU site license - indemnity clause

["Nicola J. Cecchino" <njc12@psu.edu>]

Hello,

You might try to neutralize the clause by doing something like the
following:

EITHER PARTY SHALL BE HELD HARMLESS FROM AND AGAINST ANY LOSS,
DAMAGE, COSTS, LIABILITY AND EXPENSES ARISING OUT OF ANY CLAIM OR
LEGAL ACTION TAKEN AGAINST THE PUBLISHER RELATED TO OR IN ANY WAY
CONNECTED WITH ANY USE OF THE LICENSED MATERIALS BY EITHER PARTY
NOT IN ACCORDANCE WITH THIS LICENSE OR ANY FAILURE BY EITHER
PARTY TO PERFORM ITS OBLIGATION IN RELATION TO THIS LICENSE=85.

Sometimes publishers agree to neutrality before they agree to
removal of portions of their language that basically ends up
placing the burden on them. Hope this helps.

Mr. Nicola J. Cecchino, MLS, AHIP
Assistant Librarian for Reference and Technology
George T. Harrell Library, H127
Penn State College of Medicine
Milton S. Hershey Medical Center
Hershey, PA 17033-0850
Email:  njc12@psu.edu
http://del.icio.us/ncecchino/
FACEBOOK:  http://psu.facebook.com/srch.php?nm=3Dnic+cecchino
HARRELL WEB:  http://www.hmc.psu.edu/library/


Donley, Leah wrote:
> Hello to all,
>
> I am new to this list and found my way here after searching the
> archives.  I've pasted the indemnity clause from the AGU license
> below.
>
> Has anyone successfully negotiated altering the language of this
> clause to remove the indemnification? AGU suggested alternate
> wording which basically removed the word "indemnify" without
> changing the meaning of the clause.  So far the examples I've
> found have both parties indemnifying each other, which will
> unfortunately not work for us as we cannot agree to indemnify a
> publisher.
>
> SUBJECT TO APPLICABLE LAW, THE LICENSEE AGREES TO INDEMNIFY,
> DEFEND AND HOLD THE PUBLISHER HARMLESS FROM AND AGAINST ANY LOSS,
> DAMAGE, COSTS, LIABILITY AND EXPENSES (INCLUDING REASONABLE LEGAL
> AND PROFESSIONAL FEES) ARISING OUT OF ANY CLAIM OR LEGAL ACTION
> TAKEN AGAINST THE PUBLISHER RELATED TO OR IN ANY WAY CONNECTED
> WITH ANY USE OF THE LICENSED MATERIALS BY THE LICENSEE OR
> AUTHORIZED USERS NOT IN ACCORDANCE WITH THIS LICENSE OR ANY
> FAILURE BY THE LICENSEE TO PERFORM ITS OBLIGATIONS IN RELATION TO
> THIS LICENSE, PROVIDED THAT NOTHING IN THIS LICENSE SHALL MAKE
> THE LICENSEE LIABLE FOR BREACH OF THE TERMS OF THE LICENSE BY ANY
> AUTHORIZED USER PROVIDED THAT THE LICENSEE DID NOT CAUSE,
> KNOWINGLY ASSIST OR CONDONE THE CONTINUATION OF SUCH BREACH TO
> CONTINUE AFTER BECOMING AWARE OF AN ACTUAL BREACH HAVING
> OCCURRED.
>
> (http://www.agu.org/pubs/institution_forms/Corporate.pdf)
>
> Thanks!
>
> Leah Donley
> Email: donley@bnl.gov
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