RE: Terms subject to change

["Hiatt, Derrik" <hiattcd@wfu.edu>]

Thanks all for your input.  I've been able to make some headway 
on this, mainly by being able to speak on the phone with the 
organization's General Counsel.

The problem arose because they have an online Terms & Conditions 
document, which gets incorporated into our signed Agreement, and 
our solution lies in clearly distinguishing the two.  We had 
thought the vendor wanted to be able to change the signed 
Agreement; the vendor had thought we were asking them to never 
change the online T's & C's.

What we were finally able to agree to is that the vendor can 
change the online Terms & Conditions, but if they do and if it 
conflicts with the signed Agreement, then our signed Agreement 
will prevail, and that signed Agreement can only be modified in 
writing and signed by both parties.  The exact language is still 
in the works, but that's the gist of it.

Just thought I should let folks know that we were able to work 
this one out with the vendor.

Thanks again,

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


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Hiatt, Derrik
Sent: Friday, December 17, 2010 6:27 PM
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