Re: "Best" vs. "Reasonable" Efforts

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

Victoria -- according to the University of California's Office of General
Counsel, the term "best efforts," as you might guess, implies a standard
of diligence and care that goes beyond those you normally employ.  The
advice of counsel is that, unless we really intend to give special
treatment to a particular publisher/vendor with respect to the
provision(s) calling for "best efforts," we should resist the use of this
term.  We have found our licensors to be pliable on this issue, although
we have on occasion had to explain the reasons: a) that we will apply the
standard of care that we employ with all licensed content with regard to
[access][security][copyright compliance][whatever...], but see no
compelling reason to give this licensor special treatment; and b) we are
acting on advice of counsel.

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

___________

At 07:36 PM 7/8/1999 EDT, you wrote:
>Does anyone know what, if any, is the legal difference between "reasonable
>efforts" and "best efforts"?  This is in regard to the wording of a
>license where it sets forth what is required of the licensee in
>maintaining security, preventing unauthorized use, enforcing use
>restrictions, etc.
>
>Both terms would seem to be fairly loose and open to legal interpretation,
>but I suspect that "best" may hold one to a higher standard of performance
>than "reasonable".  I generally use "reasonable efforts" when revising
>license agreements, but have encountered a case where the licensor's
>attorney has countered my revision with a revision that substitutes "best
>efforts" where I had proposed "reasonable efforts".  Is this worth
>worrying about?  (Another part of the license combines both into the
>phrase "reasonable best efforts".)
>
>Thanks in advance for any advice,
>
>Victoria Mitchell
>Reed College Library
>Portland, OR 97202
>mitchell@reed.edu
>503/777-7272 (ph)
>503/777-7786 (fax)