Re: Letter waiving liability for the action of third parties

[Ann Okerson <ann.okerson@yale.edu>]

Katie:  Immediately below, find the liability language proposed in the
LIBLICENSE software.  Our project attorney created it and we have used it
successfully with some vendors who asked us to propose our own language
(i.e., didn't have a license or we didn't find their wording suitable). To
unload the software onto your desktop, go to the LIBLICENSE web site:  

www.library.yale.edu/~llicense

------------------------

Each party shall indemnify and hold the other harmless for any losses,          
claims, damages, awards, penalties, or injuries incurred, including             
reasonable attorney's fees, which arise from any alleged breach of such         
indemnifying party's representations and warranties made under this             
Agreement, provided that the indemnifying party is promptly notified of         
any such claims. The indemnifying party shall have the sole right to            
defend such claims at its own expense. The other party shall provide, at        
the indemnifying party's expense, such assistance in investigating and          
defending such claims as the indemnifying party may reasonably request.         
Notwithstanding the foregoing, neither party shall be liable for any            
indirect, special, incidental, punitive or consequential damages,       
including but not limited to loss of data, business interruption, or loss 
of profits.                                                                


Sincerely,                                                                      
Ann Okerson                                                                     
Ann.Okerson@yale.edu                                                            
 
_____________________________________

On Sat, 13 Feb 1999, Gary S. Lawrence wrote:

> 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
>