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]