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Re: Deleting Liability Clauses Gilbert Bede (07 Apr 2009 16:35 UTC)

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