Re: Letter waiving liability for the action of third parties

["Gary S. Lawrence" <Gary.Lawrence@ucop.edu>]

Katie -- following is the standard language used by the University of
California with respect to indemnification for third-party liability.  
This language has been acceptable to most of our publishers/vendors.  We
have also had experience with using an ex post memorandum of understanding
to modify the terms and conditions of an online click-thru license
agreement (presented as an unavoidable element of an online order-entry
procedure) -- I can give you more details if you like.

===========================================================

The Publisher shall defend, indemnify, and hold harmless Licensee, their
officers, agents and employees from all damages, liabilities, costs, fees,
including, but not limited to, attorney's fees, resulting from any
judgment or settlement agreement arising out of the claim of a third party
that Publisher's sale of products to Licensee or Licensee's use of said
products constitutes an infringement of any patent, copyright, trademark,
trade name, trade secret, or other proprietary or contractual right of any
third party. NO LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THIS
AGREEMENT IS APPLICABLE TO THIS INDEMNIFICATION.  Subscriber shall give
prompt notice of an infringement claim to the Publisher, provide such
cooperation and assistance to Publisher as is reasonably necessary to
defend the claim, and shall allow Publisher to have sole control of the
defense, provided, however, that Licensee retains the right to participate
in the defense at its own expense.
===========================================================

Regards,

***************************************************
* Gary S. Lawrence, DLIS
* Director, Library Planning and Policy Development
* University of California, Office of the President
* 1111 Franklin Street, 11th Floor
* Oakland, CA 94607-5200
* Voice: (510) 987-9461
* Fax: (510) 587-6401
* Internet: gary.lawrence@ucop.edu
***************************************************
_____

At 06:29 PM 2/12/1999 EST, you wrote:
>Hi, I am in the middle of a negotiating the acquisition of an online
>business directory for my library and have run into some problems with the
>vendor.  The license agreement for the vendor is a click license.  The
>vendor will not provide a written agreement but is willing to consider
>providing a letter that will waive the librarys liability for the actions
>of third parties (patrons) who may violate the online agreement.  But the
>vendor wants me to come up with something that they can work from.  It is
>a difficult situation, the database provides unique information that would
>be very helpful for our patrons. The vendor has no competitors.
>
>Now I need to draft a letter, just to get things started and I don't have
>a clue where to start.  Is there anyone out there that has dealt with a
>similar situation with a vendor who would be willing to provide some
>advice, or share their letter?
>
>Before anyone gets too alarmed about someone who is not an attorney
>drafting a legal document, this letter will go to our attorney after the
>vendor has made their changes.
>
>
>Katie Adams 
>St. Louis County Library 
>kadams@slcl.lib.mo.us 
>Headquarters Reference
>St. Louis County Library
>kadams@slcl.lib.mo.us