Reviewing and Negotiating License Agreements Pamela Kontowicz Reference/Serials Librarian Monmouth College Library Monmouth, İllinois U.S.A.

Introduction Will show you how to review and negotiate any license agreement Three parts to the process: Part 1 - Reviewing a license. Part 2 – Negotiating a license Part 3 – Final acceptance of a license Practical Exercise

STEP I: Reviewing a License The basis for evaluation of any license is the Turkish National Site License ( TRNSL) Serves as a model license for ANKOS a. Contains the clauses ANKOS would like to find in every contract. b. Used for comparison with vendor’s site licenses. c. Copy of the license can be found at:

STEP I: Reviewing a License License Comparison Form

TRNSL Review and Sample Clauses

Section I - Definitions Defines terms used in agreement. Not all vendors have a definitions section. Sometimes the terms are defined as they come up. Point to look for: definition of “Authorized users”

Sample Clauses Blackwell: Elsevier

Section II - Grant of License and Fees Points to look for: Length of agreement should be defined. (also called “term of agreement”) Should not renew automatically. When is payment due? Should ask for the period to be extended to 90 days. Can new members join the consortium at any time? Some say yes, some say no.

Sample Clause Length of Agreement (automatic renewal)

Sample Clause Length of Agreement (automatic termination)

Sample Clauses Payment of fees. (Emerald) New members (Project Muse)

Section III - Usage Rights Very important section-tells you what you can and cannot do with a database. Violations of these clauses can result in termination of access to the database. Points to look for: Interlibrary Loan rules and whether course packs and electronic reserves are allowed.

Sample Clauses Interlibrary Loan (Wiley) Interlibrary Loan (American Chemical Society)

Sample Clauses Interlibrary Loan (not permitted-World Scientific)

Sample Clauses Course packs and electronic reserves (permitted-Cambridge University Press)

Sample Clauses Course packs and electronic reserves (must ask permission-Taylor & Francis)

Section IV - Prohibited Uses These are things you cannot do with the database. If you do these things, it is the fastest way to lose access to the database. Typical clauses are no use of robots, no downloading of entire issues, no electronic ILL.

Sample Clauses Taylor and Francis

Section V - Publisher’s Warranties, Limitations of Liability, Indemnities, etc. These clauses are very tricky. They use a lot of legal language in an effort to prevent ANKOS (or anyone else) from suing a publisher. If you see a large section in BOLD TYPE, this is usually a warranty and limitation of liability clause. These normally do not cause problems. But check for any limitations on payment or time to bring an action in court.

ISI (warranty clause)

Sample Clause Elsevier (limitation on liability)

Section VI - Undertakings by Publisher This is what the publisher agrees to do. “To use reasonable efforts” to make the database available at all times. To give notice of scheduled maintenance. To give notice if they are going to make major changes Point to look for: Do they agree to provide usage statistics? Are they COUNTER compliant?

Sample Clause Taylor and Francis

Sample Clause Usage statistics (Springer)

Section VII - Undertakings by Consortium This is what ANKOS agrees to do. Must notify users of the limitations on use. Point to look for: A clause in which the consortium and its members are not liable for a breach of contract providing they didn’t..”cause, knowingly assist or condone the continuation of such breach.”

Sample Clause Licensee’s undertakings (Taylor & Francis)

Sample Clause Consortium not liable for breach. (Blackwell)

Section VIII - Undertakings by both parties Just a nice to have section.

Section IX - Term and Termination Important section. Points to look for. a. Both parties should have the right to terminate the agreement. b. Is there archival access to the subscribed material after the termination of the contract? This varies by the type of database. Always ask about this.

Sample Clauses Termination clause (Blackwell)

Sample Clauses Archive availability after termination (yes) Archive availability after termination (no)

Section X - General Contains “boiler plate” clauses. Points to look for: a. How are changes made to the agreement? b. The time period of the notice provision. c. Where is the place of jurisdiction?

Sample Clauses Changes to the agreement (Ebrary) Notice provision (CUP)

Sample Clauses Jurisdiction (MathSciNet)

Step II: Negotiations. Based on the review, a list of questions is prepared for the vendor.

Step II: continued The list of questions, the completed review and a copy of the contract are then sent to the other members of the license committee. Contact person sends question list to vendor. Also sends copy of TRNSL if it wasn’t sent earlier.

Step II: continued Answers from the vendor are reviewed against the TRNSL to see if answers are acceptable. If not, negotiations continue until the contract is acceptable to both parties.

STEP III: Accepting the Contract When the committee decides that the terms of the license are acceptable, the committee notifies ANKOS headquarters that the terms are acceptable and the contract is signed.

PRACTICAL EXERCISE & QUESTIONS