RE: AGU site license - indemnity clause

["Christine Turner" <cturner@library.umass.edu>]

Hello Leah,

We struggled mightily with the AGU indemnity clause. Their 
alternative, basically removing the word "indemnify", was 
unacceptable to us as well. Finally we agreed to these language 
for section 8.2:

"The Licensee shall not be liable for unauthorized use of the 
License Products by any Authorized Users provided the Subscriber 
did not intentionally assist in or encourage such unauthorized 
use or permit such unauthorized use to continue after having 
actual legal notice thereof."

Let me know if you want to discuss further.

Best,
Christine

******************************************
Christine N. Turner
Electronic Resources Librarian
Acquisitions Department/W.E.B. Du Bois Library
University of Massachusetts
Amherst, MA  01003
E-mail  cturner@library.umass.edu
Web http://people.umass.edu/cturner

> -----Original Message-----
> From: Donley, Leah [mailto:donley@bnl.gov]
> Sent: Tuesday, September 16, 2008 7:43 PM
> To: liblicense-l@lists.yale.edu
> Subject: AGU site license - indemnity clause
>
> 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