Re: Deleting Liability Clauses Gilbert Bede 07 Apr 2009 16:35 UTC
Hi I read this clause as meaning that the publisher is indemnifying and saving you from harm rather than your institution having to indemnify and save then from harm. This is a pretty standard clause and it sets out certain conditions such as setting a limit to the damages that they will pay and a timeframe for you to bring action against them for damages. I will bet that the publisher's lawyer didn't make much of a fuss when you're the purchasing director stroked out that clause. By doing so he or she has absolved the publisher from any obligations and/or damages outlined under this section license. The good news is that these clauses are seldom ever used. Gilbert Bede Systems and Acquisitions Librarian Okanagan College Library 1000 KLO Road Kelowna, BC Canada V1Y 4X8 Telephone 1-250-762-5445 Local 4751 Fax 1-250-862-5609 -----Original Message----- From: SERIALST: Serials in Libraries Discussion Forum [mailto:SERIALST@list.uvm.edu] On Behalf Of T Thompson Sent: April 6, 2009 2:17 PM To: SERIALST@LIST.UVM.EDU Subject: [SERIALST] Deleting Liability Clauses Please forgive cross-posting. We have had a recent change in the staff at our purchasing office, and the director has been signing our licenses. He keeps crossing out the liability clauses. I am including a sample. "Except as provided in clause . under no circumstances shall the Publisher (or the Publisher's Representative) be liable to the Licensee or any other person, including but not limited to Authorized Users, for any special, exemplary, incidental or consequential damages of any character arising out of the inability to use, or the use of, the Licensed Materials. Irrespective of the cause of form of action, the Publisher's aggregate liability for any claims, losses, or damages arising out of any breach of this license shall in no circumstances exceed the Fee paid by Licensee to the Publisher under this License in respect of the Subscription Period during which such claim, loss of damage occurred. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success of effectiveness of the other remedies. Regardless of the cause or form of action, the Licensee may bring no action arising from this License more than six (6) months after the cause of action arises." When I asked him why he crossed it out, this was his reply "Our insurance will never allow us to indemnify and hold anyone harmless. What that provision basically does is allows them complete freedom from any ramifications of acts that they commit or fail to commit that they should have done that result in damage or harm to someone or their property." How would you respond to this? This is not how I read the clause but I may be incorrect. Thanks. Tracey Thompson Acquisitions Librarian New Mexico State University Library MSC 3475 P.O. Box 30006 Las Cruces, NM 88003-8006 (p) 575-646-8093 (f) 575-646-7477