Nicole B. Cignoli - Capstone Portfolio

By this agreement, the Association for Asian Studies (AAS) grants the Subscriber a non-exclusive license to subscribe to the Bibliography of Asian Studies (BAS) on the Internet, subject to the terms and conditions set forth in paragraphs 1–8 below, all of which are hereby agreed to between the AAS and the Subscriber.

Non-exclusive: A status in which the rights the agreement grants to the Subscriber are available to others, reserving to AAS the right to give the same or similar rights to use the licensed materials to other parties.

No change as the Subscriber can make the service available to users within their network.

Please read the Terms and Conditions. By signing below you certify that you have read and agree to abide by all such Terms and Conditions listed below, and that you are authorized to sign this form on behalf of your institution.

This is the Signature Authority statement in which the individuals signing on the behalf of AAS and the Subscriber shall understand that they are empowered to do so.

Accepted as this is standard boilerplate language to the contract (Amendment, 2000).

Terms and Conditions:

1. Definitions

Term: As used in this contract means the period of time during which the agreement is in effect.

(a) "The BAS" means the Internet version of the Bibliography of Asian Studies, which includes the full contents of the printed Bibliography of Asian Studies from the 1971 to the 1991 editions, plus additional and more recent citations. AAS reserves the right to add or delete BAS content at any time.

Defines the AAS service for which the contract is created.

Suggest adding written notification of significant modifications or withdrawals of materials within a designated time period (Licensor Performance Obligations, 2000). If the change affects the overall quality of the service, Subscriber will receive a refund proportional to the loss of that material access. 

(b) "Authorized User" means an employee, faculty member, staff member, or student officially affiliated with the Subscriber, or an authorized client of the Subscriber's library facilities.

Authorized User: Any person or entity designated in a licensing agreement that has permission to access or otherwise use the digital resources that is the subject matter of a licensing agreement.

No change.

(c) "Subscriber" means a single non-profit educational institution or a member of a consortium of such institutions that has signed this Agreement and has remitted the appropriate subscription fee to the AAS.

Defines the Subscriber.

No change.

2. Scope of License

The subscription includes authorization of access by means of one or more IP addresses at the institution for Authorized Users via multiple connections.

A Subscription license agreement states a Subscriber pays for access to digital information in exchange for payment of a periodic fee. This section of the agreement defines how material will transmit to the end user, who that end user will be, and how they will access the material. The method of access is via one or more IP addresses. An IP address is the unique identifier of a computer or other networked device that is attached to a network.

IP addresses are required on the AAS Order Form. Suggest consider adding a general statement to allow more flexibility, as new methods are developed, to identify and authenticate Authorized Users such as:

Authorized Users shall be identified and authenticated by such means and protocols as may be developed during the term of this Agreement (Authentication, 2000).

Authorized Users must be employees, faculty, staff or students officially affiliated with the Subscriber, or authorized clients of the Subscriber's library facilities.

This clause defines an Authorized User.

The clause is general enough to permit interlibrary loan service however Subscriber may consider negotiating a clearer definition such as:

Subscriber may fulfill requests from other institutions, a practice commonly called Interlibrary Loan. Subscriber agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC Section 108, "Limitations on exclusive rights: Reproduction by libraries and archives") and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2)

If the Subscriber has one or more remote sites or campuses which do not have their own central administrative staff, but are instead administered by the Subscriber's site or campus, persons affiliated with those remote sites or campus will also be considered Authorized Users.

As above.

No change.

This subscription entitles the Authorized Users to access the BAS by multiple connection to:

(a) Make searches of the BAS,

The following paragraphs explain what Authorized Users can do with the information after they have it.

The paragraphs outlining permitted uses of The BAS throughout the agreement are broad enough to be protected under Fair Use. To ensure their users’ rights of Fair Use, the Subscriber could consider adding a list of all the approved uses of the licensed materials as listed under Section 4. Copyright, Paragraph 1 (Authorized Use of Licensed Materials, 2000).

(b) Make one or more copies in hard copy form of the output of any search; such copies may not be sold and may not be distributed to anyone who is not an Authorized User; and

Fair Use allows the Subscriber’s Authorized Users to make copies without having to pay a fee to the vendor or obtain permission if the copies are for limited, authorized use.

No change as Fair Use applies.

(c) Download search results to hard disk or diskette, provided that such data are not made available to anyone who is not an Authorized User.

Allows the Subscriber’s Authorized Users to download information so long as the information remains available only to Authorized Users.

Suggest Subscriber negotiate a Scholarly Sharing statement in this paragraph or under Section 4. Copyright, Paragraph 1 (Authorized Use of Licensed Materials, 2000).

An Authorized User may not make The BAS available to anyone other than another Authorized User, whether by telephone link or by permitting access through his or her terminal or computer; or by other similar or dissimilar means or arrangements.

Details how the Authorized User will access the material at their personal computer or terminal and that information may not be transferred to unauthorized users electronically or otherwise.

Although Fair Use applies, consider negotiating a clarification that Authorized Users are permitted to extract information for Scholarly Sharing as suggested above for educational, scientific, or research purposes, including extraction and manipulation of information with appropriate acknowledgements.

The Subscriber is solely responsible for all security, and all use (including unauthorized use) of The BAS provided to its IP address(es), and will undertake reasonable and appropriate methods to enforce the terms of access. Enforcement must not violate the privacy and confidentiality of Authorized Users.

This clause puts the onus on the Subscriber to ensure there are no access breaches to the database. It gives the Subscriber the flexibility to determine access method so long as the users’ confidentiality is protected. However if it is breached, the Subscriber is responsible for enforcement and has the freedom to determine the methods.

As stated under Mutual Performance Obligations (2000), some obligations apply equally to all parties of the agreement. Suggest including a statement that the Subscriber and AAS shall cooperate in the implementation of security and control protocols and procedures as they are developed during the term of this Agreement and agree to maintain the confidentiality of any data relating to the usage of the database by the Subscribers and or its Authorized Users. Identity of specifics users shall not be provided to any third party (Mutual Performance Obligations, 2000).

In order to accomplish this, suggest that Subscriber negotiate a Notice of "Click-Through" License Terms or Other Means of Passive Assent on AAS’ Order Form or in an appendix requiring Authorized Users to agree to terms relating to the use of the Licensed Materials before gaining access.

Also, consider including “knowingly unauthorized use” as the Subscriber should only be responsible for unauthorized use that they intentionally permit, not for misuse of the materials over which they have no control.

The Subscriber may not utilize The BAS database for commercial purposes, including, but not limited to the sale of materials, fee-for-service use of the database, or bulk reproduction or distribution of materials in any form; nor may the Subscriber impose special charges on Authorized Users for use of the database beyond reasonable printing or administrative costs.

As indicted in most licensing agreements, AAS prohibits the Subscriber from using the licensed materials for commercial purposes and or as a revenue generating information source.

Suggest Subscriber consider negotiating inclusion of a statement clarifying copy fees and internal charge backs, or other Subscriber internal accounting practices, are not prohibited.

Furthermore, under no circumstances may the Subscriber (a) remove, obscure, or modify any copyright or other notices included in the materials; or (b) use materials in a manner that would infringe the copyright therein.

This clause prohibits Subscriber from presenting the information as the Subscriber’s by deleting any logos or copyright imprints thereby protecting AAS’ intellectual property.

No change.

The Subscriber shall use reasonable efforts to protect the database from any use that is not permitted under this Agreement, and shall notify the AAS of any such use of which it learns or is notified. In the event of violation of the User Rules, the Subscriber agrees to consider the imposition of further restrictions on access to, and downloading and printing from, the database.

Standard clause defining responsibilities toward protecting the database from unauthorized access. Requires notification to AAS of any discovered infringements and the consideration by the Subscriber to tighten security measures if violations occur.

Suggest Subscriber negotiate inclusion of a reciprocal statement that AAS is responsible for maintaining a secure database and if there is a breach, AAS is responsible and will reimburse Subscriber for lost service (Mutual Performance Obligations, 2000).

AAS and the Subscriber shall from time to time consult on the establishment of further measures to inform Authorized Users of the availability of the database and of the user rules.

Allows for future discussions between AAS and the Subscriber on how to notify users of changes in the database and authorized use.

No change.

The Subscriber is responsible for establishing and maintaining hardware and Internet access to provide access to, and to transmit the BAS database to Authorized Users. The Subscriber understands that Internet browser software is required to access the database.

Defines Subscriber’s responsibility to provide their Authorized Users the hardware and internet connection to access to the database.

As this paragraph only details the Subscriber’s responsibilities, suggest negotiating a common Licensor Obligation statement that AAS shall be responsible for the costs of converting the Materials into digital form and available at one or more remote sites.

In addition, consider adding that AAS shall:

·        Support defined by method and time frame

·        Train of Subscriber staff

·        Comply with the American with Disabilities Act (Licensor Performance Obligations, 2000).

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3. Terms and Fees

The particular division of responsibility will vary, but the parties should clearly and specifically set forth in the contract any allocation of costs they agreed to during the negotiations.

A new subscription will become effective on the first day of the month following receipt of the order form, this agreement, and the subscription payment, and will be in effect for twelve months as of that date.

Defines the commencement and length of the license agreement.

Suggest adding clarification on the term receipt, electronic or hard copy.

The subscription and this agreement will remain in effect thereafter for successive years so long as annual subscription fees are paid.

This paragraph outlines renewal terms.

No change.

Either party may terminate this agreement, effective on the next renewal date, by at least 30 days written notice to the other party.

The paragraph defines method and timing to alert the other party of termination of the agreement and states that each party has the right to terminate the agreement at the end of the contractual term with written notice.

Suggest adding to the termination notice the correct office or department within each company to where to send the notice and clarifying the term written notice as electronic or hard copy.

The annual fee for this subscription will vary by the size of the institution, participation in consortia, and other criteria established by the AAS, as published in the current Subscription Fee Schedule.

Standard fee structure statement.

No change as it is good practice to have the fee schedule in a separate document.

Fees may be raised or lowered by written notice to the Subscriber, given at least three months before the renewal date.

Subscription renewals must be paid on or before the renewal date or the subscription will be cancelled.

This is a standard statement defining change or renewal timeframes must be in at least 90 days prior to the expiration of the current term

No change as it meets the suggested Renewal clauses in the Model License Agreement (Renewal, 2000).

The Subscriber shall be responsible for all costs associated with establishing access to the BAS database, including but not limited to any telecommunications or other charges imposed by carriers, proprietary network operators and Internet access providers, or licenses for browser software, if any.

Standard statement that clarifies the Subscriber’s responsibility to establish and pay for all the necessary configurations and access methods in order to provide access to their users.

No change.

The Subscriber shall also be responsible for all costs associated with printing from the database, and for any taxes relating to the Subscriber's or Authorized Users' use of the database.

Standard statement that clarifies the Subscriber’s responsibility to pay for any printing costs and all taxes associated with establishing the access methods for the Subscriber and for users.

No change.

4. Copyright

The BAS and its contents are subject to copyright, database protection, and other rights of the publisher (AAS), under the laws of the United States and the country of use. The Subscriber is allowed the "fair use" of all information for non-commercial, educational, instructional, and scientific purposes by Authorized Users.

Fair Use: An affirmative defense to copyright infringement set forth in Section 107 of the Copyright Act of 1976 (17 U.S.C. § 107) that allows certain persons or entities to use, access, copy, distribute, remix, publicly perform, or publicly display limited portions of protected material for certain purposes. Under the fair use doctrine, such parties may be able to use the protected work without having to receive the copyright owner’s permission to use or access that material, or without having to pay the owner for that use or access (License Vocabulary, 2007).

It is important that the agreement identify with specificity the uses that will be made by Authorized Users of the licensed materials. This clause includes many common uses of digital information under Fair Use.

Suggest Subscriber consider negotiating clarification of use in regards to: Electronic Reserves, Education and Teaching, password- or proxy-protected hyperlinks from AAS’ Web page(s) or Web site(s) to the Licensed Materials, Caching, and Scholarly Sharing. However the language must be broad enough as usage methods will change over the life of the contract and limitations may promote misinterpretation or misunderstandings (Authorized Use of Licensed Materials, 2000).

The Subscriber acknowledges that it has no claim to ownership by reason of its use of or access to the BAS.

Clarifies the Subscriber cannot assert the material in the database as its own.

No change.

Recompiling, copying, publication or republication of data beyond "fair use," in any form or medium whatsoever, may be done only with specific written permission from AAS.

Clarifies that beyond Fair Use, the Subscriber must obtain written approval from AAS to reproduce material from the database.

No change.

5. Access to the Database

In the event of a material breach of this Agreement by the Subscriber, which breach is not cured within 30 days notice by AAS that such breach has occurred, the Subscriber shall immediately cease using the product and this Agreement shall terminate.

Material breach: A material breach is a failure to perform an obligation under an agreement that destroys the contract’s value, excuses an aggrieved party’s further performance under the contract, and gives the aggrieved party a cause of action for breach of contract (Terms, 2006).

This clause states that if information from the database is used in an unapproved manner or an unauthorized user on the Subscriber’s end accesses the database, the Subscriber must remedy the situation as soon as discovered otherwise AAS will terminate the contract.

No change.

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7. Representations and Warranties

(a) AAS has made and will make good faith efforts to ensure that The BAS is complete and accurate. However, the AAS does not warrant completeness or accuracy, and does not warrant that the Subscriber's use of the BAS will be uninterrupted or error-free, or that the results obtained will be useful or will satisfy the user's requirements.

Warranty: A party’s assurance or guaranty that a fact upon which the other party relies really is true, such that the relying party does not have to discover that fact for himself. A party that grants a warranty effectively indemnifies the other party from harm or loss if the warranty is not honored.

This clause states that the information AAS provides is not guaranteed, or warranted, to be flawless, useful or satisfying to the Subscriber nor that the Subscriber’s access will be uninterrupted.

It is in the interest of both AAS and Subscriber that the agreement provides adequate details concerning the performance obligations of AAS. Although AAS is unlikely to guarantee uninterrupted service, Subscribers should expect AAS to agree to take adequate steps to make service interruptions less likely and negotiate standard language such as:

·        Have adequate backup servers in the event the main server crashes

·        Have appropriate hardware to handle a minimum number of simultaneous users

·        Designate downtime exceeding certain specified amounts as unreasonable or unacceptable

·        Provide that subscription rates will be adjusted or rebates granted for unreasonable interruptions in service.

·        Ensure the quality and quantity of the licensed materials is maintained throughout the life of the license agreement. (Licensor Performance Obligations, 2000)

Suggest adding a Force Majeure clause to cover performance failures of either party due to an event outside their control party and only if the failure could not be avoided by the exercise of due diligence by that party (Standard License Agreement, 2008).

(b) AAS warrants that it is entitled to grant the licenses outlined in this agreement, but makes no other warranties or representations of any kind, expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose.

This clause affirms that AAS has the authority to grant the licenses as outlined in the agreement. If AAS did not have permission to license, the Subscriber could be exposed to significant liability to the actual holder of the rights to the information.

As in the previous clause, AAS makes no claim the information will be of any value to the Subscriber.

Although AAS may not agree to the terms, the Subscriber can attempt to negotiate indemnities under which each party agrees to pay any damages and costs of litigation involved from a breach of its warranties (Indemnities, 2000).

(c) The Subscriber will be permitted to access The BAS at any time. The AAS will not be liable for any delay, down time, or other failure of performance, but will use reasonable efforts to correct any performance problem brought to its attention.

Service is provided 24/7 but AAS is not liable for delays due to downtime.

Suggest that AAS maintain wording “reasonable efforts to correct any performance problems”.

Suggest Subscriber negotiate defined service maintenance times and if AAS fails to repair the issue in a reasonable time, AAS shall reimburse a proportional amount of the total fees.

Suggest adding that both parties will ensure the confidentiality of user data. (Performance Obligations, 2006).

(d) AAS will not be responsible for incidental, consequential, or any other damages arising out of or in connection with the service or materials provided hereunder.

AAS is not responsible for any consequence that may arise by using is its service or information.

Suggest that Subscriber negotiate that AAS must notify Subscribers immediately of any detected virus implanted in or breach of its software.

(e) The AAS makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. The AAS further expressly disclaims any warranty or representation to Authorized Users, or to any third party.

Holds AAS harmless for any viruses or breaches to the database.

As above.

(f) The Subscriber shall be responsible for all claims, costs, demands, expenses, and liabilities, including reasonable attorney's fees, resulting from:

(i) Breach of this Agreement by the Subscriber; and

(ii) The Subscriber's negligent use of the Database, if directed by a Court of Law.

Subscriber is responsible for all legal costs incurred by the Subscriber when any dispute is brought against AAS.

Suggest Subscribers should review their options with legal counsel. The review may result in negotiating a mediation and or Alternative Dispute Resolution ("ADR") clause that can either suggest or mandate alternatives to litigation, at least as a first choice to resolve a dispute (Governing Law; Dispute Resolution, 2000).

(g) The Subscriber represents and warrants that it is providing no IP addresses to AAS that pertain to any campus other than those listed or indicated in this Agreement, or for which access has otherwise been agreed in writing by the AAS.

Subscriber states has only provided valid, Authorized User access addresses as previously defined in the agreement.

No change.

(h) The BAS database is provided on an "as is" basis, and the AAS disclaims any and all other warranties, conditions, or representations (express, implied, oral, or written), relating to the database or any part thereof, including, without limitation, any and all implied warranties of quality, performance, compatibility, merchantability or fitness for a particular purpose.

Most agreements will include this standard, boilerplate disclaimer of any guarantees other than those expressly included in the agreement. In many cases, such disclaimers are acceptable. Some states, however, have passed statutes prohibiting limitations of liability for harm arising from the use of a product or service.

AAS states that The BAS is purchased as represented and any other verbal or implied warranties or performance guarantees are not valid, only those outlined within the agreement are valid.

Suggest Subscriber review this clause with legal counsel to ensure it is applicable in their jurisdiction.

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8. Miscellaneous

(a) This agreement constitutes the entire agreement of the parties and supersedes any prior communication between the parties with respect to the subject matter hereof. It may be amended only by a written instrument signed by both parties.

Commonly included to ensure verbal agreements are included in writing and any previous contracts are null and void with the execution of this contract.

No change.

(b) The Subscriber may not assign or transfer rights under this agreement.

This states that the Subscriber may not transfer the agreement to another person or entity.

In the event of merger or take over of either party by an unknown entity, suggest the Subscriber negotiate terms be written that neither party may assign the agreement, except to a subsidiary or purchaser, without prior written consent of the other, except when the new entity guarantees performance and assumes all obligations such as in mergers or acquisitions (Assignment, 2000).