Vol. 8 No. 6 June 1989

CADD Alert: The Owner Wants Your Disks!

A new issue is looming on the horizon. If you have not already been faced with a demand that you deliver your plans and specifications in machine readable form, you probably will be in the near future. As the use of CADD becomes more and more widespread, you can expect both the frequency and the intensity of this demand to increase. You need to be prepared to respond in a reasonable way.

How are other architects and engineers responding? Some are refusing. This may not always be a viable option. Others are simply handing over their tapes or disks and hoping for the best. This is seldom a viable option. Still others are seeking protections against the new risks this practice has introduced. This is an option you might consider.

THINKING IT THROUGH

The owner sees access to your tapes or disks as an extraordinary convenience, if not a right. They can facilitate decisionmaking about occupancy and use of the project, and, properly indexed and cross-referenced, they ean greatly enhance the accessability of design information and data. Having paid you to prepare your documents in machine readable form, why should these benefits be withheld?

Some owners may also harbor the notion that your tapes or disks can be used as a handy short-cut to the transfer of the project to another professional in the event your relationship should somehow sour--that they may prove cost-effective in planning future extensions to the existing project, and that they might even be useful in the design and construction of a similar structure on another site. There may be little interest on your client's part in being disabused of these notions. There is great interest on yours in seeing to it that this objective is met.

From your point of view, there is always a danger that, once your project documentation is out of your hands, it will be modified by someone else. CADD elevates this danger to a flash point. Design documents printed from altered tapes or disks have the appearance of perfection, and they are likely to be assumed to be perfect. You would not want to retain the risk that these documents might actually be used to build something any more than you would want to encourage a group of preschoolers to live it up with a generous supply of matches.

SEARCHING FOR A SOLUTION

The owner needs to be warned of the risks involved, and you need to be protected against them. You are going to have to address the business, professional, and legal implications with candor. Only then can you reach a reasonable understanding as to where the risks inherent in what the owner is asking you to do appropriately belong. The place to reflect that understanding is in your agreement for professional services.

Before you even start, ask yourself if your client has the financial wherewithal to stand behind a loss caused by the misappropriation of your design. If not, go no further. If so, you are likely to need the assistance of counsel to prepare an indemnification provision appropriate to the situation at hand. The following composite sample may help to clarify some of the issues involved:

It is understood and agreed that the calculations, drawings, and specifications prepared pursuant to this Agreement, whether in hard copy or machine readable form, are instruments of professional service intended for one-time use in the construction of this project. They are and shall remain the property of the Architect/Engineer. The Owner may retain copies, including copies stored on magnetic tape or disk, for information and reference in connection with the occupancy and use of the project.

Because of the possibility that information and data delivered in machine readable form may be altered, whether inadvertently or otherwise, the Architect/Engineer reserves the right to retain the original tapes/disks and to remove from copies provided to the Owner all identification reflecting the involvement of the Architect/Engineer in their preparation. The Architect/Engineer also reserves the right to retain hard copy originals of all project documentation delivered to the Owner in machine readable form, which originals shall be referred to and shall govern in the event of any inconsistency between the two.

The Owner understands that the automated conversion of information and data from the system and format used by the Architect/Engineer to an alternate system or form at cannot be accomplished without the introduction of inexactitudes, anomalies, and errors. In the event project documentation provided to the Owner in machine readable form is so converted, the Owner agrees to assume all risks associated therewith and, to the fullest extent permitted by law, to hold harmless and indemnify the Architect/Engineer from and against all claims, liabilities, losses, damages, and costs, including but not limited to attorney's fees, arising therefrom or in connection therewith.

The Owner recognizes that changes or modifications to the Architect/Engineer's instruments of professional service introduced by anyone other than the Architect/Engineer may result in adverse consequences which the Architect/Engineer can neither predict nor control. Therefore, and in consideration of the Architect/Engineer's agreement to deliver its instruments of professional service in machine readable form, the Owner agrees, to the fullest extent permitted by law, to hold harmless and indemnify the Architect/Engineer from and against all claims, liabilities, losses, damages, and costs, including but not limited to attorney's fees, arising out of or in any way connected with the modification, misinterpretation, misuse, or reuse by others of the machine readable information and data provided by the Architect/Engineer under this Agreement. The foregoing indemnification applies, without limitation, to any use of the project documentation on other projects, for additions to this project, or for completion of this project by others, excepting only such use as may be authorized, in writing, by the Architect/Engineer.

Consult your attorney. You will want to refine the language of this provision and adapt it to the specific circumstances to which you wish to respond. It may be necessary to integrate it with the ownership of documents, termination, and record documents provisions of your agreement, for example. Perhaps more importantly, indemnification in any form raises legal issues which are extremely complex, and the laws of the various states with respect to their enforceability are not uniform. As a general rule, the courts look with disfavor on such provisions, and you will want to seek the advice of counsel on how best to construct the protections you need. Your purpose is to enhance the probability that they will be enforced.