From: Scott Vieira <[log in to unmask]> Date: Wed, 29 Mar 2017 07:46:06 -0500 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] On 3/28/2017 3:36 PM, LIBLICENSE wrote: From: Peter McCracken <[log in to unmask]> Date: Tue, 28 Mar 2017 19:34:49 +0000 Greetings – I am fairly new to electronic resources licensing, though not to the library world. In my role as electronic resources librarian at Cornell University, I’ve been reviewing, negotiating, and (hopefully) signing licenses for content requested by selectors. I have a philosophical problem with one license, and I’d like to request some feedback from this group as a whole. Our Music library would like to subscribe to the online version of Die Musik in Geschichte und Gegenwart (MGG) from NYC-based RILM. Their newest license agreement incorporates the MGG Online Terms, which include, in bold characters, the following notice: “We reserve the right to modify these Terms at any time. All changes will be effective immediately upon posting to MGG Online and, by accessing or using MGG Online after changes are posted, you agree to those changes unless, in the case of material changes only, you choose to exercise your right below to terminate your access if the material changes are not acceptable. Material changes will be conspicuously posted on MGG Online.” I don’t understand why one would agree to a license that can be unilaterally changed at any time. Apparently, I would need to be regularly checking the MGG site if I wanted to learn about material changes and take the opportunity to not accept them. Not surprisingly, if I did notice and object to material changes, my notification of termination “will not entitle you to a refund of any prepaid fees.” This is not the first such clause I’ve seen, and in a previous license negotiation, I got a similar clause removed. I find this more than a bit frustrating – why are we signing a license in the first place, if you can just change it? Are other libraries agreeing to these terms? If this is the most current version of this license, then I guess so. But I don’t understand why. And within my institution, I’m trying to determine how I manage my relationship with the selector, if I say that we will not subscribe because we will not agree to the publisher’s terms. On the one hand, I fail in my job of acquiring the resources the selector has identified; on the other hand, I believe that I fail in my responsibility for protecting the institution’s interests. Perhaps I’m being unreasonable; RILM will probably not change terms in an onerous manner without notice. But why participate in such an unbalanced agreement? Thoughts and guidance are certainly welcomed. Peter McCracken Electronic Resources Librarian Cornell University [log in to unmask] (607) 255-1892