The following suggestions, tips, and contract amendments were provided by participants in the CALL-L discussion list for Canadian law libraries. Publisher names have been removed since many of these will apply to any electronic subscription. If you have any additions or suggestions, feel to contact me: davidpwhelan@gmail.com.
Immediate Termination of Contract
The [client] may immediately terminate the Contract upon giving notice to Publisher where: (a) Publisher is adjudged bankrupt, makes a general assignment for the benefit of its creditors or a receiver is appointed on account of Publisher's insolvency; (b) Publisher breaches any confidentiality or conflict of interest obligation set out in the Agreement; (c) Publisher, prior to or after executing the Agreement, makes a material misrepresentation or omission or provides materially inaccurate information to the client; (d) Publisher undergoes a change in control which adversely affects Publisher's ability to satisfy some or all of its obligations under the Contract; or Publisher's acts or omissions constitute a substantial failure of performance; and the above rights of termination are in addition to all other rights of termination available at law, or events of termination by operation of law.
Termination for Non-Appropriation
[relevant to governments but may be amended to reflect budget processes of the organization if entering into multi year contracts – beware of clauses that tie price to years of use]
If this Contract extends into a Fiscal Year subsequent to its execution, continuation of the Contract is conditional upon an appropriation of moneys by the [client co.] sufficient to satisfy payments due under the Contract. In the event that such moneys are not available as a result of: (i) non-appropriation for the Fiscal Year in which payment becomes due; , the [Client] may terminate the Contract upon giving notice to the Supplier. Termination shall become effective on the date of the beginning of the first Fiscal Year for which funds have not been appropriated.
Monthly Utilization Reports
The Supplier(s) will be required to provide the [client] with a hard copy and an electronic copy of the utilization reports for both the Flat Rate Licence and the Device Licence on a monthly basis. The utilization report will provide details about usage by sub-account, password, database and the time used or the type of transaction, the costs associated with the transaction, the number of concurrent Users accessing the database at any given time, and any other related information. The reports will also contain the sub-totals for each password, sub-account and a total for the account.
Indemnity
[remove clause in government contracts since library cannot commit government to indemnity clauses]
Number of Users
[eliminate specific number of terminals ("users") if license is restricted to a physical space. Allowing use within space enables transfer of use to users' computers (laptops, smartphones) rather than limiting library hardware as access point.]
User Ceilings
[eliminate restrictive password counts; negotiate as much growth in your usage as you can at the start, and eliminate attempts for publishers to return to the table in case of unexpected growth. This clause was eliminated from a contract.]
During the Term, Subscriber may be issued up to 20 [name of electronic database] passwords. All users must have a unique password and may not share the password. In the event the Subscriber requires additional passwords during the license Term, Subscriber agrees to renegotiate this contract.
Usage Level Modification
[added when publisher was concerned that cancellations by other internal units with separate contracts would create substantial new usage on library subscription that was not captured in year-to-year comparisons of usage that led to license cost. Was never invoked.]
Pricing is based on historic usage levels. Given the decision of [other units within Licensee's organization] not to subscribe to publisher's services, publisher retains the right to monitor access to the Licensed products. If access by users during any calendar quarter during the term increases at least 25% above the usage levels in the previous year, then publisher may give notice to Licensee that publisher wishes to renegotiate the price for the remainder of the Term after the relevant calendar quarter, to reflect the increased usage. If publisher and Licensee have not mutually agreed to an increased price within 15 days after the giving of notice by publisher, then publisher may terminate this Agreement upon 15 days further written notice to Licensee.
Copyright Limitations
[modified from original license to enable document delivery to library users who are not employees of Licensee]
The publisher license agreement is modified only to the extent that Licensee is granted the right during the Term of this Agreement to print from the Data in the Licensed Products in the publisher's databases in accordance with specific search requests for such excerpts from or on behalf of patrons who are authorized to use Licensee's resources, and to send those excerpts by mail, electronic facsimile, or e-mail delivery to such patrons.
Usage Reports
[add specific details as to when you want to receive your usage reports and what you want in them. Ask for what you want regardless of whether the publisher has offered it; you can negotiate what is possible]
Within 10 days of the end of each billing period, publisher shall forward to Licensee a written report summarizing usage by [organizational office] for the preceding month including:
- Account Identifier
- Account Name
- User Name
- Client Identifier
- Database Name
- Type of Activity
- Date of Use
- Quantity of Activity
- Cost of Activity
Document Delivery / Cost Recovery
[this clause was amended to clarify cost recovery of research. Additions in bold, deletions struck out.]
The Subscriber shall not charge a fee to access or use the Product and shall not use the Product solely in a computer or research service for a fee, or as part of a fee‑for‑service research service, copy service or document delivery service. The Subscriber may, as part of the Subscriber's normal practice for its existing clients, charge a disbursement fee for materials gathered from the service in the course of research.
Termination Clause
[Keep termination notice period as short as you are comfortable with so that you are not making decisions about renewing too far ahead of the end of the license]