Electronic data transfer - client and architect agreement

Risk management for electronic data transfer

The basic principle of risk management is that liability for the risk should lie with the party best able to control the risk. In the case of transfer of digital drawings, or other electronic data, the risk should lie with the recipient or user of the information as they are in a position to control the risk through their use of the documents or through their arrangements with other users.

Firstly, if the recipient does not want to accept any of this type of risk they need not use the process of electronic transfer.

Secondly, the recipients should check for viruses, ascertain the effect of different software and hardware, and compensate for any errors that may have crept in.

Thirdly, when drawings are amended it is possible to make it clear that the amended drawings are not original construction documents. A preventative measure to minimise confusion is to omit your title block from digital drawings that leave your office. Drawings cannot then appear to be originals unless there is fraud on the part of the recipient. Refer further information in Acumen note Digital transfer considerations. It should be noted that with this approach it may become more difficult to assert your authorship of the document and therefore the moral rights and copyright in the original information.

The best approach to manage this issue is to clearly set out the requirements for the provision of digital files at the commencement of the project (including in the brief and relevant tender documentation) and have agreements in place between the parties involved that expressly incorporate these requirements to ensure that the transfer of risk to the recipient is understood and that all necessary procedures can be followed. It is also recommended that for projects which involve Building Information Modelling (BIM) deliverables, the required format of deliverables should also be communicated within the Employers Information Requirements (EIR) document prepared by the client so that they can then be confirmed in the corresponding BIM Execution Plan (BEP).

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Agreements

Agreements need to cover risk allocation on at least two fronts. Problems for the owner can arise if there are unforeseen consequences flowing from the information transfer. This applies particularly during construction where contractors ask for drawings in electronic form. The contractor's relationship with the architect or the client's consultant is less straightforward where there is no direct contractual relationship between the contractor and the architect or client's consultant. In such situations, if there are problems, the contractor will probably first look to the owner as the person with whom it has a (building) contract. In turn, the owner is then likely to look to the architect for a remedy, whether during or after the building contract is complete, and any assistance provided by the architect should be managed under the agreement between the architect and the owner (as the client).

Client and architect agreement

The first issue to cover by agreement is that between the architect and client, so that the client both understands and acknowledges the risks inherent in electronic transfer of information. The Institute's Client and Architect Agreement 2019 refers in clause F.3 (Electronic Data Transfer) to this matter:

The Client agrees that:

1. the Architect may issue data electronically to all parties involved in the Project
2. the Architect is not responsible for the accuracy, completeness or any contamination of electronically transmitted data
3. the cost of preparing or converting digital data is to be reimbursed by the Client, as set out in Item 3.

Additional wording can be included in the agreement to confirm that the client agrees that electronic transfer of information to any other party is both desirable and anticipated. To address the provision of data transfer to third parties other than the client, the following is a suitable clause to add as a special condition in Schedule C of the Institute's Client and Architect Agreement 2019:

Data transfer to third parties

Without limiting clause F.3, the Client acknowledges that data transferred by electronic means by the Architect is more useable than data transferred by other methods but that it does involve some risk. The Client agrees that the Architect has no greater liability for documents and information transferred electronically than the Architect has for documents and information transferred on paper or other physical media.

Without limiting clause F.3 or the foregoing, the Client acknowledges and agrees that prior to the Architect issuing data in electronic form to other parties engaged by the Client in relation to the Project, including but not limited to specialist secondary and subconsultants and the Client's contractor, the Architect may require the proposed recipient of such data to first execute and deliver a transfer agreement in a form required by the Architect.

If a form of transfer agreement is to be included in the contract, then the sample form in Acumen note entitled 'Electronic data transfer – third-party agreement' can be used as that form.

When express provisions not included or transfer agreements not provided

It is always best practice to include an express provision in contracts with clients which clearly sets out the parties' rights and obligations where data is provided to the client electronically, and to obtain executed transfer agreements from all relevant recipients. Where such an express provision has not been included or transfer agreements have not been provided, a secondary risk minimisation tool which could be considered is to include a statement with all digital transfers which requires the recipient to agree to a set of conditions regarding the use and transfer of the data contained within the digital files prior to proceeding with opening and accessing the data, and clearly states that the recipient is deemed to accept such conditions upon opening and accessing the data. However, this kind of 'deemed acceptance' approach is not a substitute for appropriately drafted contractual clauses and transfer agreements.

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