Re: KLD Research (business database) indemnification language

[Judy L Johnson <jljohnso@unlnotes.unl.edu>]

Ann,

In a couple of instances, I've had to accept indemnification 
language.  In each case it was with a company that normally 
catered to the business establishment.  Our legal counsel gave me 
the following language to use:

If publisher refuses to remove, ask that this statement be 
substituted (written by John Wiltse, Legal Counsel:

"Indemnification.  The University agrees to indemnify [company] 
from and against any and all liability, loss, expense (including 
reasonable attorneys' fees), or claims of injury or damages 
arising out of performance of this Agreement, but only in 
proportion to and to the extent such liability, loss, expense, 
attorneys' fees, or claims for injury are caused by or result 
from the negligent or intentional acts or omissions of the 
University, its officers, agents, or employees."

Hope this helps,

Judy L. Johnson
Coordinator of Acquisitions & Electronic Licensing
University Libraries
University of Nebraska-Lincoln 
Lincoln, NE 68588-0410
e-mail: jjohnson3@unl.edu


"Okerson, Ann" <ann.okerson@yale.edu>
Sent by: owner-liblicense-l@lists.yale.edu
07/02/2008 10:45 PM
Subject: KLD Research (business database) indemnification 
language

Background:  The Yale Library has in place numerous e-resources 
agreements, and we are successful in securing appropriate terms. 
One of BEWARE signals all along for us has been indemnification 
language.  We will not sign language that asks us to indemnify a 
database provider.  It is common for producers of educational 
resources to either not have such language, or to remove it, or 
to agree to some kind of mutual indemnification or some 
alternative that doesn't put the onus on the Library or 
University.

However, we now have a database subscription that asks us to sign 
indemnification language (1) that we have said we cannot and will 
not sign; (2) that the publisher, KLD Research, will not remove 
or alter; and (3) that our librarians have been told is a 
must-have for their business and SOM users.  Furthermore, KLD has 
said that several other peer institution's libraries have signed 
this kind of language, though in truth we don't know what the 
circumstances of those arrangements were, so we don't know if 
they are comaprable to ours.

The language reads:  INDEMNIFICATION

"Except as otherwise set forth in Section 9 below [NOTE: SECTION 
9 DOESN'T HELP US], Licensee shall defend, indemnify and hold 
harmless KLD against damages, costs and expenses (including 
attorney's fees) arising from any claim made against KLD by any 
third party alleging damages related to Licensee's use of the 
license granted herein or Licensee's use of the Product or access 
thereto from or through Licensee."

This is, we believe, excessive, overbroad, and impossible.  We 
have tried and tried but while they were reasonable on other 
clauses, on this point they said that they feel too vulnerable to 
make any changes.  Possibly, they normally deal with businesses 
rather than educational libraries and haven't enough experience 
or trust us enough to use education-friendly language here. And, 
other peer libraries have signed such language?!

I would welcome any comments or insights from libraries that have 
signed up with KLD Research and how they managed to get this 
clause changed, or if they did, or if they signed anyhow?

Many thanks, Ann Okerson/Yale Library