From: Sarah Durrant <[log in to unmask]> Date: Tue, 13 Nov 2012 12:43:14 +0000 Dear Barbara, Jennifer and fellow sufferers, I am a publishing consultant, coach and trainer with 23 years' experience in the information sector. Amongst other things, I facilitate the Licensing and Negotiation Skills course on behalf of UKSG. From the wording you have quoted, the action is ensuring Users comply with terms. As you suggest, this language is unreasonable since it is not physically possible for anyone to guarantee such an undertaking. Unfortunately, as you will be aware, this kind of language is quite common within content licences. Typically drafted by lawyers who are used to dealing with - indeed are paid to obsess about - certainty, unambiguity and full compliance, publisher licences can sometimes be blunt instruments. My suggestion in such circumstances is always dialogue. Go back to the service provider and explain why this wording gives you issue. Provide detail about how your institution is organised to illustrate why this level of compliance is not possible. Let them know what practices you currently follow to achieve awareness and compliance amongst your Users. It can be helpful to supply an alternative wording which you would be able to sign (the JISC model licence can provide wording here). As Jennifer suggests, clauses such as 'use reasonable effort' or similar are more workable. If the service provider proves intransigent, it may be a matter for your legal counsel if you have one. An alternative would be to request in writing a statement from the service provider detailing the actions they would take should you sign and then be found liable for non-compliance at some future point. Quite often, service providers issue warnings and allow time for corrective action to be taken before taking more draconian measures but much depends on the nature and extent of any breach. The ultimate course of action of course is for you not to sign the licence but this can amount to cutting off one's nose to spite one's face, particularly if the resource in question is in high demand. It would be useful if service providers who have such clauses in their licences could comment on what the fear or mistrust is that's driving their approach. How much real experience do you have of significant breach, particularly given how much libraries have done to cultivate awareness and good practice in the area of compliance? Similarly, it would be useful to hear from service providers who are content with more reasonable language in their licences: what is it you are able to trust which other content owners apparently feel they cannot? Regards Sarah Durrant Red Sage Consulting Sarah Durrant Coaching Office: +44(0)1728 633196 Mobile: +44 (0)7715 121910 Email: [log in to unmask] uk.linkedin.com/in/sarahdurrant -----Original Message----- From: "B.E. Swetman" <[log in to unmask]> Date: Fri, 9 Nov 2012 10:50:13 -0500 I'm also dealing with this contract and have a question about the later portion of statement. It says "The Client shall ensure that each User fully complies with the terms of this Agreement (including the Terms of Use) and the Client shall be responsible to The Economist for any failure so to comply." It has occurred to me that there is no particular action that we are agreeing to be responsible to do. Does anyone know what this "responsible to The Economist for any failure" actually means? Barbara Swetman [log in to unmask] Acquisitions and Serials Librarian Hamilton College Library Clinton, NY 13323