Thanks very much Heather. I will convey any further thoughts I have to Scott, since I am in European time zones this week, and he would be more available to you to actually have a conversation, if one is needed. Please have any final issues sorted out with him directly.
From my perspective, eliminating that former indemnity obviously solved the main concern we expressed. Thanks for conveying that to IU. Of course, we also don't have enough insight into the technical program to assess the details of the descriptions of the job and deliverables in that new appendix, so we're leaving that to you. Cordially, Jamie On Aug 22, 2022, at 17:41, Heather Greer Klein <heather@samvera.org> wrote:
ï Hi Jamie and Scott,
We have the requested changes from Indiana University for the agreement to reimburse them for tech lead time -- thank you again for your help with that Jamie! They have questions regarding our preferences for invoicing -- Scott, do you have any preferences for this?
Thank you both!
Heather ----- Heather Greer Klein (she/her/hers) Samvera Community Manager Working from Durham, NC (US Eastern Time Zone), on land traditionally cared for by the Shakori and Eno peoples. Hi Heather, I finally heard back from IUâs General Counsel. See attached for a version of the agreement with the Indemnification clause removed, as requested. They also added the position description as Exhibit A at the end, with reference to the exhibit in paragraph 3. If this looks OK, please go ahead and obtain signature for Samvera / OASIS, and return it to me. I will then get IUâs signature and return the fully-executed copy to you. The lawyer also wanted to know if you have specific requirements for the level of detail on our invoices. Our intent is to invoice on a monthly basis for 33% of Danielâs salary + fringe benefits + 10% overhead. This should come in at about $35K total for the year. Do the invoices need to be itemized, either in terms of hours spent or those three components (salary, fringe, overhead)? Thanks, Jon Jamie just called me, he said to ask to strike it and if they can't, he is happy to talk to them and to draft something. Heather Greer Klein (she/her/hers) Samvera Community Manager Working from Durham, NC (US Eastern Time Zone), on land traditionally cared for by the Shakori and Eno peoples. On Fri, Jul 1, 2022 at 4:28 PM Dunn, Jon William Butcher <jwd@iu.edu> wrote: Hi Heather, I can check back with IUâs lawyer on this. To clarify, is the OASIS attorney requesting to strike paragraph 11 entirely, or replace it with something else? Thanks, Jon I just heard from the OASIS attorney about one part of the agreement they have concerns about: The one possible show-stopper is the indemnification clause in UI's draft paragraph 11, which is unusual for open source development. Under it, Samvera would give an unlimited indemnity to UI for hypothetical third party claims of infringement or otherwise. That might be appropriate to ask commercial software production developers in some cases, but it poses several problems in an open source context: Â It's atypical in open source work because those kinds of chain of title and liability issues are intended to be addressed by the "AS IS" terms, and exculpation of the offerer of the work from any such liability, in Sections 7 and 8 of the Apache 2 License (https://www.apache.org/licenses/LICENSE-2.0). Is it possible that UI's team reviewer is more familiar with commercial than open source licenses? In the latter, the right of every user to use, implement and derive from the licensed work is conditioned upon the exculpatory terms in that license. Â Any work by UI under UI's draft agreement is to be contributed to the project and subject to Apache 2 terms, which will give UI the direct benefit of those exculpations, as the contributor. So there should be no practical exposure to UI for donating the new code increments. (Arguably UI's draft paragraph 12 in part duplicates that protection, but I see no harm in that.) Â Prior work in the Hyrax project also was donated under Apache 2 terms (https://github.com/samvera/hyrax/blob/main/LICENSE), which as a practical matter should rule out such liability for claims. Â Realistically, new code will come from UI, who wishes to retain title and principal credit (per UI's draft paragraph 9, which is fine.) Any errant, unexpected or troll claim made against any new, old or aggregate work would be completely outside Samvera's control -- the Samvera community and foundation did not give rise to the risk. Both Samvera and UI likely are better off relying on the standardized, well-understood "as-is, where-is" clauses, than some uniquely drafted risk arrangement. It also strikes me that, though you would know better than us, this seems likely to be is a low-risk, non-fractious IPR domain, with no expected infringement risks on the horizon. Â In any case, Samvera is a limited-size, nonprofit entity not really in the position to give unlimited indemnities to anyone. We're happy to talk further with the UI folks about these issues, if that would be helpful, but we do not recommend agreeing to the current draft
Please let me know if they want to set up a call, or if they can accept changes to the draft. I know we'll have to finish this up after the holiday weekend. Heather Greer Klein (she/her/hers) Samvera Community Manager Working from Durham, NC (US Eastern Time Zone), on land traditionally cared for by the Shakori and Eno peoples.
<Samvera Hyrax Tech Lead - Agreement - UPDATED.docx>
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