From: Kevin Smith <[log in to unmask]>
Date: Fri, 12 Oct 2012 12:03:15 +0000

Hi Anne,

Three quick points from someone who seldom actually negotiates these
agreements; I hope they are not too obvious.

First, in many states, public institutes are forbid to agree to any
jurisdiction or choice of law other than their home state.  For
privates, that means that when sales people tell us that they cannot
change the venue, they are mistaken.  If these companies ever do
business with public universities (at least the ones in North
Carolina), they are able to change this provision.

Second, the most effective request is often simply to cross the
provision out.  There is no legal requirement that a contact state a
choice of law or jurisdiction, and if the contract is silent on the
matter, there are legal tools for litigants to contest the place of
filing and the choice of law.  And, of course, it seldom comes to
this, thankfully.

Third, the kind of provision you mention that is defined by the who
files the litigation is, in my opinion, the fairest compromise.
Specifically, such a provision should say that litigation has to be
filed in the jurisdiction of the defendant, and be governed by that
law.  That is, if the vendor sues the school, it most do so where the
school is located, and if the school sues the vendor, it must do so
where the vendor is located.  This type of resolution to the
jurisdiction issue reflects the most basic rules about due process and
it provides an incentive to settle disputes without lawsuits.  Since
the one contemplating litigation knows he will have to go someplace
else, which is always more expensive and less predictable, there is a
little added weight to the voice counseling him to find another way to
settle the matter.

Best,

Kevin

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University, Perkins Library
Durham, NC  27708
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-----Original Message-----
From: "Cerstvik Nolan, Anne" <[log in to unmask]>
Date: Thu, 11 Oct 2012 12:37:24 -0400

Hello,

I was wondering if there are other libraries out there who subscribe
to World Explorer Premium?  I have reviewed the license, and I am
curious to know how other institutions have handled the license
agreement.  The rule of law is the UK, and while the vendor has been
willing to make other requested changes, they would not accept my
request to strike rule of law.

This topic keeps coming up as we purchase more non-US materials, and I
am hoping that there are others out there who have some experience
with negotiating this type of issue.  I remember seeing something in
another license where the resulting rule of law was defined by
whomever files the complaint.  Of course, I cannot find that anywhere
now!  I would like to create something that we can use as a guide when
negotiating foreign licenses.

Thanks in advance for any assistance you may provide.

Regards,

Anne Nolan
____________________________
Anne Cerstvik Nolan, MLS
Electronic Resources Coordinator
Brown University Library
Providence, RI  02912
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