QUT request – American Society of Mechanical Engineering. (ASME)

Template for consideration of amendments to CAUL licences.

The CEIRC committee has agreed that a template for all suggested amendments to CAUL licences be used.

Given the varying forms in which comments on licences are received,the following simple template will be used to ensure that all the necessary information is captured up-front in request for changes. It does put the onus on the requester to specify clearly which bit is a potential problem, and why, and what is the preferred form to replace it. This is not usually necessary for the common clauses, particularly those for which we have CAUL-preferred options, but for the various odd bits which come through.

The idea for this format comes from a comments matrix from MinterEllison Negotiating multiparty research agreements.

Collating comments in a matrix is simpler logistically rather than allowing each party to mark up their comments in each draft of the agreement. Use of a comments matrix also helps all of the parties to understand and accommodate each stakeholder's concerns and motivations, as it requires a collaborator to justify any proposed changes. Following an update of any CEIRC licence, Datasets Coordinators are advised through the list. Note: the proposal will be linked from the CAUL website, alongside the licence to which it refers.

Publisher (licensor) / American Society of Mechanical Engineering. (ASME)
Product / ASME Package 2 - All Transactional Journals Plus Applied Mechanical Reviews via ASME Digital Library; ASME Archive; ASME Ebook Collection
URL of licence
(or full copy attached) /
Clause
(include clause number and full wording) /

12.Indemnification

Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney’s fees, which arise from any alleged breach of such indemnifying party’s representations and warranties made under this Agreement, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party’s expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of the agreement
Issue
(why is change requested/required) / We have received advice from our Legal Officer Eliza Boddington that QUT’s insurance coverage would not cover the mutual indemnity clause 12 because our cover excludes “hold harmless” provisions.
Suggested change (proposed wording – please check for already-approved options) / QUT wishes to request an amendment to the licence to delete the words “allegedly” and “hold the other harmless” from the Clause.
Rationale or Justification / The QUT Legal Officer advises:
“....It means that if QUT allegedly breaches a warranty or representation it makes under the Agreement, and a third party suffers loss or damage because of that breach, QUT must indemnify and hold harmless ASME for that loss or damage (and vice versa).QUT’s liability insurance will extend cover under an indemnity provision to QUT (for any personal or property loss or damage) to the extent that QUT is liable, however the policy excludes “hold harmless” provisions. As you know, when you indemnify a party you effectively protect them against loss or injury or compensate them in the event of something happening whereby they suffer loss. If you agree to hold the other party harmless (in addition to indemnifying them in this case) it generally means you will not seek to sue or blame them for claims of liability arising as a result of your actions or actions of a third party.
The representations and warranties for QUT appear to be contained in Clause 11 C. of the Licence.
Therefore, ideally we should seek to delete the words “allegedly” and “hold the other harmless” from the Clause.“
Importance
(High/ Moderate/ Low)
High: cannot sign licence unless this clause is changed
Moderate:
(please show level of importance)
Low:
(please show level of importance) / High
Party suggesting change / QUT

Send this form to the CAUL Executive officer at

Diane Costello

7 April, 2008, updated 1 December, 2008

Colleen Cleary,

QUT,

18 October 2011

CAUL Template for Consideration of Changes to CAUL/CEIRC licences