Policies Licensing Information
Licensing Information Resources with the University of Oregon Libraries
The Head of Licensing, Grants Administration and Collection Analysis at the University of Oregon Libraries negotiates, amends, and finalizes terms and conditions or licensing agreements for information resources that the Libraries are acquiring, especially those in electronic or digital formats. The information provided on this website will assist vendors, publishers, and resource providers working with the UO Libraries on licensing materials. Please direct questions or concerns about contractual terms and conditions to Dave Fowler, Head, Licensing, Grants Administration and Collection Analysis, 541-346-1839, firstname.lastname@example.org.
The University of Oregon Purchasing and Contracts Office (PCS) must vet all licensing agreements and contracts for information resources of all types, including contracts that accompany the renewal of a resource; contracts that exceed $150,000 for the life of the contract require additional approval and signature from the Oregon Department of Justice. Please understand that our turnaround time is approximately three weeks, but may be longer depending on unique circumstances, or if higher approvals are required.
Please note that "contract" and "license" are used interchangeably.
Whether a contract refers to the UO Libraries as Subscriber, Client, or Licensee, etc., please describe us initially as
the State Of Oregon, Acting By And Through The State Board Of Education On Behalf Of The University Of Oregon [University of Oregon Libraries ] ("Licensee,). . .
Copies of Contacts
Vendors should provide us with an unlocked, editable electronic copy of their contract. The contracts should be in English. Electronic copies enable us to amend contracts easily and forward them quickly to our PCS colleagues. Once amended, we can provide vendors with a redlined contract to enable them to see our changes. Once the UO Libraries and a vendor have agreed to terms, the Libraries will normally send an electronic copy for signature to the vendor. Ink copies can be provided on request, but for our purposes, signed and scanned contracts are considered legal and binding. We expect the vendor to sign and return an executed electronic copy for our files. The Acquisitions Department and PCS both maintain permanent print and/or electronic copies of license agreements. In addition Acquisitions records details of terms and conditions using our electronic resource management system.
The University of Oregon is a tax-exempt public institution. If greater details about this status are required, please contact Dave Fowler, Head, Licensing, Grants Administration and Collection Analysis, 541-346-1839, email@example.com.
Required and Preferred License Terms and Conditions
Listed below are the changes to terms and conditions that the University of Oregon is likely to make to any contract we receive. The UO Libraries will make every effort to work with vendors to negotiate terms that both parties can accept. Several of our terms MUST be included; these are indicated as such. Failure to accept these required terms may force the UO Libraries to decline to purchase a product.
In addition to possible contractual amendments, UO's PCS Office issues general purchasing terms and conditions to guide our acquisitions of library materials. See http://pcs.uoregon.edu/sites/pcs/files/Clean_Final_Policy_072910_ag.pdf.
NOTE: To develop these required terms and conditions, we relied on the documentation available at Yale's Liblicensing site as well as drafts of the Greater Western Library Alliance's License Principles, drafted by Stephen Bosch, University of Arizona.
Archival Rights--see Perpetual Access
We expect to provide remote access to our library users via authentication servers, proxy servers, or similar technology. UO library facilities in Charleston, Portland and future physical locations have the same administrative hierarchy as the Eugene location. These are not distinct campuses. Together these locations with the Eugene location should be considered a single site, with all locations using one of two assigned IP ranges. We cannot accept clauses that limit access by geographic area (i.e., five-mile radius of campus). We do not expect to incur additional charges to cover access to our users at these library facilities.
Authorized and Unauthorized Use
Agreements must not give vendors and publishers broader rights than those that existing intellectual property laws allow. The UO Libraries do not expect to give up rights that were usually granted for print resources or under current copyright laws. Restrictions on fair use are not acceptable.
The UO's authorized users must be allowed to download, print, copy, and email reasonable amounts of content for their individual use. They should be able to utilize information for the purposes of personal, educational, and non-commercial development and for scholarly research as provided for by fair use regulations. Fair use should include scholarly sharing, use for distance education programs, or course information systems (i.e., Blackboard) and the creation of electronic course packs.
UO authors should be allowed to post copies of the final version of any paper included in the licensed content either on a personal Web site, on course-related sites, or on the UO's website, including the UO institutional repository, Scholar's Bank.
The UO Libraries will take reasonable measures to ensure the appropriate use of information resources that we acquire and license. We cannot accept responsibility for the behavior or activities of third parties. However, should unauthorized use occur, the Libraries will cooperate with vendors to avoid recurrence of the unauthorized use. We will take reasonable measures to educate our authorized users about the appropriate use of resources through one of several means:
- Inclusion in publicly accessible catalog record of the license restrictions related to public and staff use
- Publicly available websites that inform users about basic restrictions regarding the use of electronic resources and campus computing resources
- When relevant, direct guidance to users about the appropriate use of electronic resources.
Authorized users must include the University of Oregon's faculty, students, staff, or other persons authorized by or affiliated with the University. The University of Oregon is a state-assisted, public university; our facilities are open to the public, thus we seek to allow on-site access to electronic resources for our walk-in or on-site users. We reserve the right to negotiate future categories of users.
We prefer automatic renewals with anywhere from 60 to 90 days' notice to vendors or publishers if we must cancel a resource. If an automatic renewal is in effect, we do not expect to have to negotiate, amend, and sign a licensing agreement every single year.
Availability of Content
We expect electronic content to be accessible no later than the print equivalent. We expect to know about embargoed materials in advance of purchase. Vendors should notify us if the availability of content for a given resource is delayed.
Breach of Terms
Should a breach occur, the non-breaching party must notify the breaching party in writing. The notice of breach must specify the nature of any purported breaches. We seek to provide the breaching party with 30 days to cure the breach. If the breach is not cured in that time period, the non-breaching party may terminate the contract without further notice. If the University of Oregon is the non-breaching party, we expect to receive a pro-rated refund proportional to the un-expired part of the subscription or the payment for the resource.
We expect electronic resources to work with the most recent versions of available Internet browsers to optimize functionality of a product.
The University of Oregon can agree to keep confidential any and all information and/or documents designated as confidential or proprietary by the other party to the fullest extent permitted by law. As a public institution, the University of Oregon is subject to various public disclosure statutes. Therefore, any contractual provisions regarding confidentiality of license terms must be limited to the extent necessary to comply with Oregon state laws and U.S. federal law when applicable. We agree to notify publishers or vendors when public records requests are made for information a vendor has designated confidential or proprietary within the scope of a particular contract.
Description of Resource
If a vendor does not provide a description of what we are purchasing within a contract, we will add this statement to the contract. When not already integrated into a contract, this description should also:
- explain pricing information in detail including the total purchase costs relative to size, FTE, number of users, number and breakdown of titles, usage. Pricing information should include information about any payment plan, pricing incentives or discounts, archival rights and ownership, the cost and coverage of backfiles, the costs of associated print versions, and other relevant information
- stipulate the time period for access rights governed by the agreement
- describe differences between print and electronic formats as applicable
- provide details about archival rights including the format or mechanism for receiving and/or hosting the archive
- describe any and all software (proprietary or not) that is required for full functionality of a product and that requires additional downloading or maintenance on the part of the UO Libraries
- clarify any cancellation restrictions or limitations. The Libraries' ability to subscribe and/or purchase materials is largely contingent upon the appropriation of funds by the Oregon state legislature. If the necessary funds are not appropriated or need to be reduced in a given fiscal year, we must be able to make necessary cancellations or reductions.
Downtime and Force Majeure
We understand the necessity for force majeure clauses in contracts. We also recognize that vendors must occasionally schedule downtime for maintenance, etc. We expect to be notified of scheduled downtime in advance. Should unforeseen events cause unexpected downtime, we seek announcements about a resource's status as soon possible. We ask that vendors please provide us with assurance about their reasonable efforts to provide continuous service or access. Should the Libraries have to endure unscheduled downtimes caused by natural disasters, failure of vendor or third party networks, etc., please state the recourse we will have at our disposal, including a pro-rated reimbursement, credits, or other compensation.
Any contract or agreement we sign must be governed by the laws of the state of Oregon. If the governance clause cannot be changed to accept Oregon law, then we can decide to remain silent on this term.
If the University of Oregon agrees to any indemnification clauses, the agreement will always be "subject to the constraints of Oregon Constitution, article XI, sec. 7, and Oregon Revised Statutes 30.260, et seq."
For information on the Oregon Constitution, please see: http://www.leg.state.or.us/orcons/orcons.html
The relevant text for ORS 30.260 is at: http://www.leg.state.or.us/ors/030.html
Tort Actions Against Public Bodies
30.260 Definitions for ORS 30.260 to 30.300. As used in ORS 30.260 to 30.300, unless the context requires otherwise:
(1) "Department" means the Oregon Department of Administrative Services.
(2) "Director" means the Director of the Oregon Department of Administrative Services.
(3) "Governing body" means the group or officer in which the controlling authority of any public body is vested.
(4) "Public body" means:
(a) The state and any department, agency, board or commission of the state;
(b) Any city, county, school district or other political subdivision or municipal or public corporation and any instrumentality thereof;
(c) Any intergovernmental agency, department, council, joint board of control created under ORS 190.125 or other like entity which is created under ORS 190.003 to 190.130, and which does not act under the direction and control of any single member government;
(d) Any nonprofit corporation that is organized and existing under ORS chapter 65 and that has only political subdivisions or municipal, quasi-municipal or public corporations in this state as members;
(e) A private child-caring agency, as defined in ORS 418.205, that meets the criteria specified in ORS 278.322 (1)(a) and that receives more than 50 percent of its funding from the state for the purpose of providing residential treatment to children who have been placed in the care and custody of the state or that provides residential treatment to children more than half of whom have been placed in the care and custody of the state; or
(f) A private, nonprofit organization that provides public transportation services if more than 50 percent of the organization's funding for the purpose of providing public transportation services is received from governmental bodies.
(5) "State" means the state or any branch, department, agency, board or commission of the state.
(6) "Local public body" means any public body other than the state.
(7) "Nuclear incident" has the meaning given that term in 42 U.S.C. 2014(q).
(8) "Tort" means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy. [1967 c.627 §1; 1975 c.609 §11; 1977 c.823 §1; 1981 c.109 §1; 1987 c.915 §9; subsections (7) and (8) enacted as 1987 c.705 §6; 1989 c.905 §1; 1989 c.1004 §2; 1993 c.500 §3; 1997 c.215 §4; 2005 c.684 §1; 2005 c.798 §2]
The Libraries need to support instructional use or end-user training. When access to resources is limited by simultaneous users, number of ports, or other factors, we expect provisions for instructional use via a temporary increase in concurrent users, ports, or training passwords at no additional cost.
Interlibrary Loan and Campus Document Delivery
We seek to use electronic information resources to fill interlibrary loan requests from other institutions. We require the ability to fulfill ILL requests using a paper copy. Our preference is to fulfill ILL requests with electronic copies using Ariel or similar software.
IP Address and Simultaneous Users
We expect to provide access for our users via our IP address (128.223.* and 184.171.0-127.*.) or domain name (uoregon.edu). If we must restrict access to a specific number of simultaneous users or ports, the vendor or licensor, not the UO Libraries, must implement, monitor, and otherwise, control the technology that establishes these limits.
Both the UO and vendors with whom we do business should agree to abide by applicable state and federal rules governing Equal Employment Opportunity and Non-Discrimination.
Notification of Changes
We ask that licensors notify us in a timely fashion, generally 60-90 days, if there are any changes to the contracts and/or if there changes in the products we are licensing--removal of significant content, change in user interface, etc.
For any purchase in which we participate, we prefer to own or have guaranteed perpetual access guaranteed to the content we purchase, especially for full-text products. We expect to have continued access to content through the publisher's site, through a third party's site, through the provision of files made available on magnetic tape, CD-ROM, or some other mutually acceptable electronic format. If we do not use our own system for perpetual access, we prefer systems or programs such as LOCKSS for permanent archival preservation and access. We encourage publishers and vendors to participate in archiving their material using their own resources, third parties, or through collaborative efforts of libraries and vendors such as Portico.
The University of Oregon recognizes the need for publishers and vendors to collect usage data for the purposes of product improvement and marketing. However, the collection of such data must not compromise the privacy of individuals and must comply with applicable Oregon state and U.S. federal laws.
The University of Oregon must have the option to use subscription agents of our choice regardless of format.
Tax Compliance Certification:
All contracts with the University of Oregon require the following terms regarding tax compliance certification:
Tax Compliance Certification. [Name of Company] hereby affirms, under penalty of perjury, as provided in ORS 305.385(6), that to the best of [Name of Company]'s knowledge, [Name of Company] is not in violation of any of the tax laws described in ORS 305.380(4). The tax laws described in ORS 305.380(4) are those imposed by ORS 401.792 to 401.816 and ORS chapters 118, 314, 316, 317, 318, 320, 321 and 323; the elderly rental assistance program under ORS 310.630 to 310.706; and local taxes administered by the Department of Revenue under ORS 305.620.
Vendors and publishers frequently ask to see additional information about the specific statutes to which these certification terms refer. These are provided below.
ORS 305: These are the specific statutes from ORS 305, section 385, paragraphs 4 and 6 that are referred to in our tax compliance certification terms.
305.385 Agencies to supply licensee and contractor lists; contents; effect of department determination on taxpayer status of licensee or contractor; rules. (1) Upon request of the Department of Revenue, an agency issuing or renewing a license to conduct a business, trade or profession shall annually, on or before March 1, supply the department with a list of specified licenses issued or renewed by the agency during the preceding calendar year.
(2) Upon request of the department, an agency shall annually, on or before March 1, supply the department with a list of specified persons contracting with the agency to provide goods, services or real estate space to the agency during the preceding calendar year.
(3) The lists required by subsections (1) and (2) of this section shall contain the name, address, Social Security or federal employer identification number of each licensee or provider or such other information as the department may by rule require.
(4)(a) If the department determines that any licensee or provider has neglected or refused to file any return or to pay any tax and that such person has not filed in good faith a petition before the department contesting the tax, and the department has been unable to obtain payment of the tax through other methods of collection, the Director of the Department of Revenue may, notwithstanding ORS 118.525, 314.835 or 314.840 or any similar provision of law, notify the agency and the person in writing.
(b) Upon receipt of such notice, the agency shall refuse to reissue, renew or extend any license, contract or agreement until the agency receives a certificate issued by the department that the person is in good standing with respect to any returns due and taxes payable to the department as of the date of the certificate.
(c) Upon the written request of the director and after a hearing and notice to the licensee as required under any applicable provision of law, the agency shall suspend the persons license if the agency finds that the returns and taxes have not been filed or paid and that the licensee has not filed in good faith a petition before the department contesting the tax and the department has been unable to obtain payment of the tax through other methods of collection. For the purpose of the agency's findings, the written representation to that effect by the department to the agency shall constitute prima facie evidence of the persons failure to file returns or pay the tax. The department shall have the right to intervene in any license suspension proceeding.
(d) Any license suspended under this subsection shall not be reissued or renewed until the agency receives a certificate issued by the department that the licensee is in good standing with respect to any returns due and taxes payable to the department as of the date of the certificate.
(5) The department may enter into an installment payment agreement with a licensee or provider with respect to any unpaid tax, penalty and interest. The agreement shall provide for interest on the outstanding amount at the rate prescribed by ORS 305.220. The department may issue a provisional certificate of good standing pursuant to subsection (4)(b) and (d) of this section which shall remain in effect so long as the licensee or provider fully complies with the terms of the installment agreement. Failure by the licensee or provider to fully comply with the terms of the installment agreement shall render the agreement and the provisional certificate of good standing null and void, unless the department determines that the failure was due to reasonable cause. If the department determines that the failure was not due to reasonable cause, the total amount of the tax, penalty and interest shall be immediately due and payable, and the department shall notify any affected agency that the licensee or provider is not in good standing. The agency shall then take appropriate action under subsection (4)(b) and (d) of this section.
(6) No contract or other agreement for the purpose of providing goods, services or real estate space to any agency shall be entered into, renewed or extended with any person, unless the person certifies in writing, under penalty of perjury, that the person is, to the best of the persons knowledge, not in violation of any tax laws described in ORS 305.380 (4).
To see the entire section of ORS 305 Chapter 305 Administration of Revenue and Tax Laws; Appeals, go to: http://www.leg.state.or.us/ors/305.html
To find additional information related to tax compliance certification, see below:
ORS 401.792 through ORS 401.816: This section refers to taxes imposed for Emergency Communications (i.e., 911 calls) and the use of the proceeds on these taxes. See: http://www.leg.state.or.us/ors/401.html.
ORS 310.630 through 310.706: This section outlines the eligibility guidelines for elderly rental assistance. See: http://www.leg.state.or.us/ors/310.html.
ORS 310.620: This section deals with the collection and distribution of local taxes on income and sales; costs; court review of determinations and orders; appeals. See: http://www.leg.state.or.us/ors/310.html.
Our tax compliance certification clause also makes reference to these ORS chapters.
ORS chapter 118 Inheritance Tax http://www.leg.state.or.us/ors/118.html
ORS chapter 314 Taxes Imposed Upon or Measured by Net Income
ORS chapter 316 Personal Income Tax http://www.leg.state.or.us/ors/316.html
ORS chapter 317 Corporation Excise Tax http://www.leg.state.or.us/ors/317.html
ORS chapter 318 Corporation Income Tax http://www.leg.state.or.us/ors/318.html
ORS chapter 320 Miscellaneous Taxes http://www.leg.state.or.us/ors/320.html
ORS chapter 321 Timber and Forestland Taxation http://www.leg.state.or.us/ors/321.html
ORS chapter 323 Cigarettes and Tobacco Products http://www.leg.state.or.us/ors/323.html
We expect agreements to include mutual rights to terminate for just cause. Each party should expect there to be reasonable due process and compensation.
When a contract refers to UCITA, then the UO will add references to clarify that no provision of UCITA (or any other law that attempts to restrict fair use) shall have any bearing on the license agreement.
The publisher or vendor must provide statistics on the use of the product. We prefer COUNTER- compliant statistics. See http://www.projectcounter.org/code_practice.html. Looking toward the future, we see the need for vendors and publishers to support and participate in NISO's Standardized Usage Statistics Harvesting Initiative (SUSHI). The SUSHI Initiative advocates for a standard model for machine to machine automation of statistics harvesting.
Withdrawal or loss of content, especially if found in the print equivalent, is not acceptable. We prefer that there to be an escape clause allowing us to cancel a product and/or receive financial compensation if content changes significantly or is otherwise no longer useful, especially in the case of electronic only subscriptions. Compensation or reimbursement should be proportional to the value of the discontinued content, pro-rated for the balance of the contract term. We will negotiate appropriate compensation but the following is acceptable:
- a credit memo applied to the subsequent year renewal
- additional content as a suitable replacement
- a cash refund.
Embargoes on the electronic content, especially when the electronic subscription replaces the print, are not acceptable.