follow up re: end user indemnification

["Kemp, Rebecca Laura" <rkemp@email.unc.edu>]

Hi, again, all- I have gotten some requests for a report on what 
I learned from my Counsel's office, so I thought I would share. 
Here is what I found out:

There is no *legal* reason that my institution would need to 
prohibit our library patrons from entering into a click-through 
agreement with a vendor that requires end users to indemnify the 
vendor, as long as the patrons agree only for themselves and not 
on behalf of the university.  In other words, it is legally 
acceptable for our patrons to sign/click through this kind of 
agreement; there is no prohibition against it. In light of this, 
it is completely up to our campus libraries to decide whether we 
want to create a policy that says we will not pass on such 
end-user agreements to our patrons.  I am not sure how all the 
libraries on my campus feel about this; it would take some 
discussion to come to an agreement.  As of now, we have no such 
policy.

Our Counsel's office suggested that we could try these options:

1.We could create some sort of intermediate click-through screen 
for our patrons that indicates that when they agree to the 
vendor's click-through, they are taking on the risk of 
indemnifying the vendor. I think that the likelihood that patrons 
would read and/or understand this is low, however.

2.We could simply walk away from the contract and hope that the 
vendor is willing enough to secure our business that they would 
allow us to get rid of the end user indemnification (or perhaps 
even the whole end user agreement). I am not sure how it will 
work out in this particular case, but this seems like the better 
option to me.

Sorry that this is not ideal.  I would appreciate it if vendors 
would not create end-user agreements at all but rather rely on 
the institutional license.

--Rebecca

-----Original Message-----
From: Kemp, Rebecca Laura
Sent: Friday, July 16, 2010 10:44 AM
To: liblicense-l@lists.yale.edu
Subject: thank you re: end user indemnification

Hi, all- I just wanted to thank those of you who responded to my
question below.  I got some interesting feedback, and I think that I'll
have to talk with my University Counsel's office for the next step.

Best wishes,
Rebecca

> On Sat, Jul 10, 2010 at 5:54 PM, Rebecca Kemp 
> <rkemp@email.unc.edu> wrote:
>
>> I've run across a scenario where a publisher requires end 
>> users to enter into an end user agreement in which the end 
>> user agrees to indemnify the publisher. Is there any language 
>> that can be used in the institutional license to mitigate this 
>> indemnification? I think in this particular case, we're not 
>> going to be able to change anything, but for my future 
>> reference, has anyone had experience with a situation like 
>> this?
>>
>> --Rebecca
>>
>> Rebecca Kemp
>> E-Resources Acquisitions Librarian
>> UNC-Chapel Hill
>> Chapel Hill, NC 27514-8890