From: Scott Vieira <[log in to unmask]>
To: LibLicense-L Discussion Forum <[log in to unmask]>
Date: Wed, 29 Mar 2017 08:17:43 -0500
Peter,
In re-reading your question I see that "material changes" may only be
referencing the changes in the agreement itself and not changes to the
content. If this is so, please ignore my second comment. It would be
irrelevant in this case.
Scott Vieira
Electronic Resources Librarian
Fondren Library MS 235
Rice University
6100 Main Street
Houston, TX 77005-1892
Phone: 713-348-2621
Fax: 713-348-5862
Email: [log in to unmask]
On 3/29/2017 7:46 AM, Scott Vieira wrote:
Peter,
I agree. I see these clauses fairly frequently and always request to
change them to something like the following:
"No modification or claimed waiver of any provision of this Agreement
shall be valid except by written amendment signed by authorized
representatives of Licensor and Licensee."
For the most part I don't have too much trouble getting the Licensor
to agree to these changes. I also make sure this overrides any
separate Terms of Use too, which tends to show up occasionally.
You're right in that saying "no" to a purchase can be difficult since
the Licensor is often the only source for the content. I usually
discuss this with my selectors and AUL before making a final decision
and explore alternative possibilities as much as possible. They have
always been very supportive and understanding with my decision on
this. I will also weigh the type of purchase. If it is a
subscription, I may be slightly more flexible since our investment in
the resource is renewed on a yearly basis. For an one-time purchase,
then I wouldn't be as flexible. However again, I can't see any
possibilities where I would agree to open ended modifications by one
party to an executed agreement. If you were to flip the clause to the
benefit of the Licensee, could you imagine the Licensor ever agreeing
to this.
I noticed in this clause that there is also a part about "material
changes" written in the agreement. I always try to tighten these up
too, so it is clear how much of a material change is allowed, say a
particular percent, etc., by collection, title, etc. But likewise,
there needs to be a clause that describes what the Licensor is
obligated to do if they reach or surpass this threshold. This clause
is sometimes missing. It is important to note the changes should be
calculated by an accumulation of changes over the duration of the
agreement, since I frequently see the changes limited to one instance,
which in my opinion, provides a caveat that allows for further
"material changes" over time in excess of the single instance metric.
Scott Vieira
Electronic Resources Librarian
Fondren Library MS 235
Rice University
6100 Main Street
Houston, TX 77005-1892
Phone: 713-348-2621
Fax: 713-348-5862
Email: [log in to unmask]
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