From: <[log in to unmask]>
Date: Tue, 3 Sep 2013 11:33:12 -0400

Hi Mary,

Welcome to the list. Indemnification clauses of this type are quite
common and are usually a point of negotiation. I usually strike them.
I'm including below 3 paragraphs from an article by Duncan Alford that
was published in Law Library Journal in 2002. Although that's over 10
years ago it is still relevant, as this is a licensing area that
hasn't changed much over the years. Hope this helps!

Indemnification/Limitation of Liability

¶49 Generally, in a database license, the library customer should not
indemnify the publisher for anything. This includes library users
violating copyright law in their use of the electronic material.105
The library simply does not have control over how users will use the
materials. However, the library should agree to make reasonable
efforts to correct or address misuse of which it has actual knowledge.
Actual awareness, not reasonable awareness, should trigger action by
the library. These reasonable efforts may include denying access to a
user who has used the electronic material in violation of copyright
law.106 Frequently under state law, public institutions are not
authorized to indemnify a third party for anything. In a publicly
funded institution, the librarian should determine what authority, if
any, the library has to indemnify a third party and for what type of
claims.

¶50 The publisher, on the other hand, should indemnify the library
from certain claims, specifically for claims of copyright infringement
related to the content of the database. The publisher is selling a
product and therefore it should warrant that it has permission to use
any copyrighted material in its database. The knowledge of whether it
has obtained these permissions is wholly within the control of the
publisher; therefore, the publisher, not the library, should bear this
risk.

¶51 Indemnification provisions should be reviewed closely to ensure
that there is no time limitation for making a claim under the license
agreement that is more stringent than that allowed under applicable
state law for general contract claims.  Publishers, on occasion, will
include a time limit in their license agreement that is much shorter
than the statute of limitations for breach of contract, which
typically is three years from the date of breach. Furthermore,
librarians should review this provision closely to ensure there is no
limitation on the monetary amount for which the publisher will
indemnify the library. Copyright infringement claims can be very
expensive, even if no liability is found, because of the attorneys’
fees incurred by the defendant. Publishers occasionally include a
limitation on the amount of the indemnification to be equal to the
license fee under the database. The license fee frequently is not
sufficient to cover legal costs necessary to file a written response
to a complaint, let alone see the complaint through litigation.

Tracy L. Thompson, Executive Director
New England Law Library Consortium (NELLCO)
Albany Law School
Schaffer Law Library
Albany, NY 12208
www.nellco.org
[log in to unmask]
twitter - @nellcoinc



At 07:57 PM 9/2/2013, you wrote:

From: Mary Hollerich <[log in to unmask]>
Date: Fri, 30 Aug 2013 14:43:53 -0500

I am new to this discussion list so please forgive me if I'm covering
well-trodden ground.

We are in the midst of negotiating a license agreement for an
e-journal and the vendor wants us to include the following
indemnification language (I have replaced the vendor's name with
"Vendor"):

“Subject to subsection C below, Licensee shall defend, indemnify and
hold harmless Vendor from any and all claims, loss, and damages,
including without limitation attorneys’ fees (“Claims”), arising from
(i) any unauthorized use, access, or distribution of the Licensed
Materials by Authorized Users and (ii) any violation of this Agreement
or of any third party rights by Authorized Users[a2] , including but
not limited to infringement of any copyright, violation of any
proprietary right and invasion of any privacy rights[FM3] .  Vendor
[FM4] [FM5]  shall give Licensee prompt notice . . . “

I have not come across this before so am wondering whether this is
common practice. Does this seem like a reasonable clause to insert?
Thanks.

Mary

---
Mary A. Hollerich
Chair, IFLA Document Delivery and Resource Sharing Section
Asst. Dean for Scholarly Resources and Research Services
Central University Libraries
Southern Methodist University
Dallas, TX 75275-0135
[log in to unmask]
[log in to unmask]