Checklist for the Negotiation of Internet Subscriptions

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Below are a sampling of issues that should be addressed in the negotiation of Internet subscriptions from legal and law related publishers.

Ask to see the license agreement. Some vendors will provide an order form for the product without providing full disclosure about the underlying rights and responsibilities of each party.

Most license agreements are one-sided, providing all of the protections to the vendor and putting all the liability on the purchaser. For example, most agreements do not acknowledge that the vendor has an obligation to the purchaser if the Web site or some of the data becomes unavailable for a prolonged period of time. Negotiate for a reduction in price or an extension of the contract to compensate for the lost access.

Who controls the Web site? If the vendor does not have direct control of the Web site or the data, you will find yourself in endless rounds of finger pointing and triangulation.

Who is responsible for notifying you if the Web site becomes unavailable? According to most contracts, no one. Usually you find this out when you start getting a series of calls from frustrated researchers. Although no vendor has trouble finding you if you have an invoice that is past due, vendors have not yet recognized that the digital tools they are using could be used to improve customer service. If a Web site goes down or a critical update does not get loaded on the Web site, vendors should disseminate important "alerts" for you to pass on to your users.

Password management. If you are negotiating a site license, you need to determine if you will be required to manage individual passwords for every possible user. Some vendors will allow access to anyone from your organization by validating the IP address of your server. Others will still require a password and still others will require that you establish a second password for those wanting to access the site from home or while traveling. You will need to determine whether you will be charged additional fees for adding these "off-site" passwords.

Cancellation. While most vendors allow you to cancel at the end of the term by simply opting not to pay the renewal invoice, others require advance notice of intent to cancel. One vendor's contract renews automatically in annual increments unless you affirmatively cancel the contract in writing within 30-day window before the renewal date. Other contracts can be canceled at will by the vendor if it believes someone at your organization has violated the license. Such clauses may also call for the forfeiture of any prepayments you may have made for the balance of the contract term.

Usage statistics. At a minimum, vendors should be able to provide basic usage statistics such as the number of times a site was accessed during a given period. If there are several subscriptions at the Web site, it would be helpful to have the "hits" broken down for each title subscribed to. This is particularly helpful when it is time to renew the license. In the event that a vendor will not provide usage statistics, it may be possible for your IT staff to generate reports that may be helpful in understanding the volume of usage of particular sites.

Authorized users. Make sure the contract is not unnecessarily restrictive. You need to decide who needs to be included in the definition of an "authorized user." If you negotiate a contract for a practice group of 30 lawyers, you need to account for access by non-laywer support staff who may need to be able to retrieve documents on behalf of the attorneys.

Content. Have the vendor clarify how the content or functionality of the Web site compares with the print and/or CD-ROM you have purchased in the past. If all the data are not included, negotiate for a price reduction or the continuation of a substitute product for free.

Can you cancel other products? Make sure the price quote is not contingent on your continued subscription to other related products. Some vendors are still trying to protect their subscriber base for existing products by slipping clauses that commit you to continue your existing print subscriptions.

Will your users adapt? Sometimes end users are resistant to change and may want to stick with an old product with a familiar interface. Request test passwords that will allow the end user to try the product before you sign the contract.

Jean O'Grady
Wilmer Cutler and Pickering, Washington, DC
[originally published in PLL Perspectives (Spring 1999: 9), updated Spring 2011]