Reading the fine print: what did we just agree to?

There is a database that has been on my wish list since my first weeks as a law librarian. This summer, with the arrival of new faculty expressing strong interest, we finally entered into negotiation for access. Regrettably, we could not make it work when the non-negotiable fine print included an obligation we could not possibly comply with. Do other institutions generally accept these provisions, or are they just not reading the fine print? Did the vendor change the contract just for us, or was this in response to some commercial misuse? One can never assume different institutions are getting the same terms from the same vendors, and there may be exigencies that require custom modification, but the terms required here left us scratching our heads. Was this a market timing issue, or would they remove this condition if we waited for the end of the calendar year? Would they have stricken this provision if we were a public institution that is prohibited by law from agreeing to it? Perhaps it is time to take another look at the boilerplate we sign.

Boilerplate in contracts has been defined as a unit of writing that can be used repeatedly without change. For contract negotiation, it is a great time-saver to incorporate those provisions that are tried, tested, and facilitate mutually beneficial business relationships. Indeed, a lot of the “practical law” material we purchase from vendors for our students consists of tested and proven boilerplate. One would think, with the passage of time and the sheer number of libraries and database vendors, this language in database vendor contracts would have assumed a large degree of uniformity. One would assume this incorrectly.

Onerous boilerplates can creep into contracts through the most innocuous of phrases. Can a library really “assume[] full responsibility for all use of the products by its authorized users” or “indemnify us against any claims or losses”? When it comes to contractual terms and negotiations, what exactly does a nondisclosure clause cover? What does it mean that the vendor “reserves the right to change, modify, add, or remove portions of the terms of use at any time,” with or without notice?  The logical extension of this would seem to unravel the agreement in its entirety.  

All librarians should become familiar with the boilerplate in our vendor contracts. A quick perusal through an archive of various past agreements showed agreements allow the vendor random use audits, agreements to indemnify, hold harmless, and defend the seller, at the purchaser’s expense, against any loss or expense arising out of use of a vendor’s products, with the exception of intellectual property claims. Various contracts were subject to the laws of Virginia, New York, and Minnesota— none of which was the venue of the purchaser. Surprisingly, few included any agreement to provide usage statistics.

Both vendors and libraries need to recognize the complexity of each other’s businesses, and these partnerships should grow over time. Some library consortia have offered model vendor purchase contracts for digital content. A collection of these sample agreements may be found here: What these seem to have in common are provisions for indemnification only by the vendor for copyright violations, if at all, clear performance terms, no surprise inspections, and no random venue provisions. Other library consortia groups have worked to create boilerplate accessibility license language for vendor contracts. The use of such standardized language could take a lot of the stress out of contract negotiations and benefit all involved.

Here’s hoping the vendor whose database I am still waiting for is taking notes.



One response to “Reading the fine print: what did we just agree to?”

  1. dginsberglawharvardedu Avatar

    When I did licensing way back in the day, we’d work with our General Counsel to figure out which provisions we could live with and which had to be changed. Their feedback could sometimes make negotiations difficult but in the end, we had a license we could live with.

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