warranty of non-infringement and indemnification against claims

["Christine Turner" <cturner@library.umass.edu>]

Greetings,

Here at UMass Amherst a publisher warranty of non-infringement 
and indemnification against claims of infringement are 
fundamental and deal-breaker terms for our licenses. This is 
consistent with the tenth NERL Licensing Principle 
(http://www.library.yale.edu/NERLpublic/licensingprinciples.html) 
which states:

"A license agreement should require the licensor to defend, 
indemnify, and hold NERL and NERL member institutions harmless 
from any action based on a claim that use of the resource in 
accordance with the license infringes any patent, copyright, 
trade-mark, or trade secret of any third party."

Increasingly over the past year I am struggling with small and 
society publishers who flat out won't agree to this condition, 
despite my best efforts to persuade them that their due diligence 
regarding their content sources is a significant part of the 
subscription fee we pay. None of these publishers are in the SERU 
Registry and they represent STM disciplines.

What techniques or language would you recommend I try to make 
this an agreeable licensing term with these publishers? I'd be 
happy to discuss more specifics off-list.

Thanks for your consideration,
Christine

******************************************
Christine N. Turner
Electronic Resources Librarian
Acquisitions Department/W.E.B. Du Bois Library
University of Massachusetts
Amherst, MA  01003
Telephone  (413) 577-1026
Fax  (413) 545-6494
E-mail  cturner@library.umass.edu
Web http://people.umass.edu/cturner