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]