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I have been reading this correspondence with a lot of interest. It is a
re-run of discussions we have had in the past and we shall have the same
discussions in the future.

The lawyers for any vendor (publisher or other intermediary) will put into
the contracts they frame for that vendor an indemnity as well as a
warranty clause and a clause setting out the fact that the contract should
be governed in a certain jurisdiction (the jurisdiction of the vendor).
They are bound to try to do this to protect their client as much as
possible. It is their duty.

But we know that libraries also have lawyers who also insist of the
presence of or (in this case) the absence of certain clauses including
this ones and often the lawyers are not even accessible to the libraries
e.g. when the State decides.

A publisher who wants to make the sale has to weigh up the danger of
decreased protection or an unfamiliar jurisdiction in the unlikely event
of legal action against the certainty of failing to come to a deal or make
a sale When I was a publisher I used to ignore my lawyer in circumstances
described by various recent correpondents. You could describe this as
entrepreneurial or you could see it as foolhardy!

You could argue that the vendor has to be the one to give way in this
trial of strength because they can make their own decisions whereas
libraries are usually unable to do so even when it is in the interests of
their patrons that they do clinch the deal and buy the product.

Anthony Watkinson
14, Park Street,
England OX20 1RW
phone +44 1993 811561 and fax +44 1993  810067

----- Original Message -----
From: "Sybil Boutilier" <sybilb@sfpl.lib.ca.us>
To: <liblicense-l@lists.yale.edu>
Sent: Thursday, November 29, 2001 12:37 AM
Subject: Re: digest 799

> Bonnie Jean Cox of Electronic Resources/Licensing University of Kentucky
> Libraries wrote:
>I have just started working with our license for the Thesaurus Linguae
>Graecae on the Web to discover that they have both an indemnity clause
>and a clause specifying adjudication under the laws of California. For us
>as a state institution, both are deal breakers. The TLG staff inform me
>that their legal counsel at California-Irvine say that they can't change
>either clause.  Is this a total impasse...?
>With some vendors, I've managed to get around the problem of both entities
>requiring local jurisdiction by deleting "choice of law" from the contract
>altogether, remaining silent on the issue. Then you only have to work it
>out if there is, in fact, a lawsuit, which is extremely unlikely. I also
>often build a "mutual indemnification" clause into our licensing
>agreements. This usually satisfies everyone. Sybil Boutilier
> Sybil L. Boutilier
> San Francisco Public Library
> Civic Center
> San Francisco, CA 94102