3 Master Agreements and Amendments

Desired Result

Frequently in eresource contracting you are dealing with longstanding contractual relationships and contracts that have renewed repeatedly and evolved over many renegotiations.  This can result in a messy tangle of interrelated documents, which can lead to practical complications in eresource management.  Generally these longstanding contractual relationships can be to your advantage, as you can leverage prior negotiations and carry forward previously negotiated terms without having to reinvent the wheel each renewal cycle.  You want, however, to clearly identify what terms apply to each product, and to clearly identify when prior documents are being incorporated into a renegotiated contract.

Essentials of the Law

Any contract can include other documents by “incorporation by reference.” Incorporating by reference simply means that when Document A refers to Document B and signals the parties’ intent to incorporate its terms in their agreement, the terms of Document B are included in Document A and are binding on its parties, as if they were part of the same document.  Imagine, for example, that the base terms, the “master agreement,” for a particular product were negotiated in 2020, and that you negotiated an amendment to that contract in 2023 that covers user data privacy terms.  For 2024 you are renewing the contract for this product.  You could, in this situation, negotiate an amendment to the 2020 contract that says, effectively, “all terms of the 2020 agreement and the 2023 amendment are extended through December 31st, 2024.”  Similarly, many eresource contracts are extended to new products that are licensed from the same vendor.  For example, you are adding an ebook collection to your collections when you already have several other ebook collections through the same vendor and platform.  In that situation frequently there is not a new contract negotiated, but the order form for the new ebook collection will specify that the terms of the master agreement will apply to this content in addition to the business terms specified in the order form.  This is a form of incorporation by reference.

Desired Language

There is no standard model language that we can provide for these situations, since they will be highly dependent on the specific documents involved.  Below, however is an example of how you may see this presented.

This License Agreement between [vendor] (“Licensor”) and Licensee incorporates the following documents:

• This License Details page including Attachment 1: Licensee and Participating Institutions Information;

• The Product Terms;

• and the General Terms and Conditions.^[1]

  In this example, the “License Details,” “Attachment 1,” and the “Product Terms” all refer to sections of the document that has been presented for review and negotiation, but the “General Terms and Conditions” are either a separate negotiated document or terms that are available on the vendor’s website.

Tricks and Traps

Specificity

For every product you want a clear statement of what terms apply to that purchase.  This means that for an order form adding a product into an existing agreement, you want a clear statement that the terms of a specific, clearly identified agreement will apply, along with any applicable amendments or addenda.  You should resist vague statements about the terms, such as “By signing this License Agreement (“Agreement”), you agree to license the Service under the previously executed terms and conditions on file.”  While this may seem easier at the time, it is likely to result in confusion in the future about which terms apply: Were the terms on file at the time of that purchase the terms from the 2022 database purchase or the 2023 ebook collection? Had the amendment that we negotiated in mid-2022 taken effect yet, and does the amendment apply to this purchase or not?  These are generally answerable questions as long as you have good recordkeeping practices, but you can save yourself a lot of future time by instead including that “the terms of the Database Agreement dated August 22nd, 2022 shall apply.”  Generally identifying an Agreement by name and effective date provides enough specificity to correctly identify the document.  Some vendors also use internal document numbers to identify specific agreements, and using those numbers can also be helpful in keeping track of which agreement applies.^[2]  The other thing to keep track of is to be sure that your specificity doesn’t leave out any important addenda or amendments.

What if there isn’t a contract at all?

Some vendors will not require a written license agreement at all, or will not have one ready to go.  The best practice when this occurs is to have a model license agreement with your preferred terms ready, which you can ask the vendor to sign.  This ensures that terms that are important to your institution are covered.  Alternately, you can ask the vendor to agree to the Shared E-Resource Understanding (SERU).^[3]  SERU is a NISO best practice which the vendor and the library can agree to, which provides a standard set of mutually agreeable terms, without needing to sign a contract.  If you would like to use SERU, your library and the vendor should both sign up for the SERU registry.  You can also check the SERU registry in advance, to see if a potential vendor is already registered with SERU.

Some vendors will not have a license that they require you to sign, but will still attach terms and conditions to use of the licensed content via a click-through agreement or by linking to an online agreement in a purchase order, order form, or invoice.  Workflows in your acquisition process should look for these and route them to licensing, even when your institution has not actually been asked to sign them.  A click-through license can form a binding and enforceable contract when it is sufficiently conspicuous and is affirmatively agreed to (such as by clicking an “I agree” check-box).^[4]  Many click-through agreements will include terms that you cannot or should not agree to.  If presented with a click-through agreement, you can ask the vendor to provide a version of the license agreement for negotiation and signature, or provide your own standard agreement.  If you do this, then you should ensure that the final negotiated agreement includes a strong merger and/or anti-clickthrough clause,^[5] so that it is clear that the negotiated terms take precedence over any other vendor terms.

If a vendor truly does not require a license, meaning that they do not require a signed agreement and also do not have terms elsewhere that apply (or that they believe apply) to use of the content, then it may or may not be acceptable to your institution to proceed without a formal, written license.  Without a written agreement in place the contract terms will have to be inferred from the parties’ conduct, and may also be shaped by state laws that set default terms in cases where express terms are not present.  Standard contractual warranties will apply, as will statutory copyright exceptions (for example, interlibrary loan is permitted to the extent covered by section 108).  Terms that are not reflected in statutory requirements, however, (such as, for example, allocation of responsibility for accessibility accommodations), will not be addressed.  Your institution may have contracting requirements that require negotiating a license in these circumstances, and ideally you should have a policy in place for when a contract is required.  If your institution permits purchasing without having a signed agreement in place, then you should still have an internal understanding of what terms will apply to the content.^[6]

Importance and Risk

It is obviously important to be able to identify what terms apply to any given eresource.  Ambiguity in the governing terms risks confusion for library staff and end users.