RE: Terms subject to change

["Tony McSean" <tmcsean@hollar.co.uk>]

If we're talking tactics, i always found that looking obdurate 
and saying "it's a dealbreaker because Finance (or Legal) says I 
can't sign this as it stands" worked fairly well.  It works best, 
of course, if you really are prepared to walk away because any 
half-decent supplier will read that from your voice.

Tony McSean
+44 20 7502 1067  (office)
+44 7946 291780  (mobile)


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Mark Carden
Sent: 21 December 2010 04:38
To: liblicense-l@lists.yale.edu
Subject: RE: Terms subject to change

This sounds like standard terms that they would be intransigent
about varying.

Two negotiating tactics I would suggest:

One approach is rather than to try to modify the terms of the
clause, just say you want to change the wording so that the
agreement is mutual: "EITHER PARTY reserves the right to modify
these Terms and Conditions....".  It is MUCH harder for them to
argue without embarrassment why the contract should give them a
right but not make it mutual.  You won't win, but it is fun to
see them wriggle.

The other approach is rather than 'negotiating' with them, simply
delete the terms you don't like and then sign the contract.
They may find it easier to just file it away and hope for the
best while taking your money. Then you can ignore any variations
you can tolerate and claim breach of contract for any you can't.

Mark Carden
EVP Sales & marketing
Publishing Technology

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Hiatt, Derrik
Sent: 17 December 2010 23:27
To: liblicense-l@lists.yale.edu
Subject: Terms subject to change

Seeking the collective wisdom ...

We are working on a license agreement with a large vendor (you
would all recognize the name).  Their default license includes
the following language:

"[Licensor] reserves the right to modify these Terms and
Conditions, or any aspect of [licensed materials], at any time.
The most updated Terms and Conditions of Use will be posted on
the [licensor's] website. [Licensor] shall notify Institutional
Licensees via email of material modifications. A modification
shall become effective for an Institutional Licensee if it does
not object in writing to [licensor] within 60 (sixty) days from
the time [licensor] emails notice of the modification. In the
event of such an objection, the Institutional Licensee shall have
the right to terminate the Agreement on 30 (thirty) days written
notice."

I asked the licensor to change the one-sided right to
modification with a statement that the signed Agreement should
prevail, and that "Any amendments to the Agreement must be in
writing and signed by both [licensor] and the Institutional
Licensee."  They refused to change the default language.

Are any of you accepting language like this, where a licensor has
the right to change the terms unilaterally, and the licensee's
only recourse is to accept or cancel?  Seems to me that a
contract that can be modified at will by one party isn't much of
a contract.

Any advice how to approach would be appreciated.

Thank you,

C. Derrik Hiatt
Electronic Resources Librarian
Z. Smith Reynolds Library
Wake Forest University
Winston-Salem, NC 27109