Wed 20 Apr 2016

Legal template for contracting

Edward Abraham Public Seen by 376

We develop software for government agencies. What I want from this policy is a succinct few clauses that can be put into contracts. Often contracting is a hurried and delicate process, and a well worded official template really helps. In the draft there is an example licence, but the policy should also include a legal template that covers the main issues.


Richard Best Wed 20 Apr 2016

As a lawyer who deals with these issues, I think this is a good idea.


Finlay Thompson Wed 20 Apr 2016

The advantage of a template is that it facilitates good contracting, and simplifies negotiating.

For example, the the GMC Form 2 SERVICES contract template is very useful for entering into small service contracts. Also, it includes in Schedule 2 a simple intellectual property section (Section 12).

Ideally we would have a Licence template with a small number (one digit) of options. The template should be supported with clear guidelines on selecting the option. Then, it could be referenced easily, and everyone would know where they stood.


Edward Abraham Wed 20 Apr 2016

For reference, the IP section from the GMC Form 2 is below:

12. Intellectual Property Rights

Ownership of Intellectual Property Rights
12.1 Pre-existing Intellectual Property Rights remain the property of their current owner.
12.2 New Intellectual Property Rights in the Deliverables become the property of the Buyer when they are created.
12.3 The Supplier grants to the Buyer (as The Crown) a perpetual, non-exclusive, worldwide and royalty-free licence to use, for any purpose, all Intellectual Property Rights in the Deliverables that are not owned by the Buyer. This licence includes the right to use, copy, modify and distribute the Deliverables.

Supplier indemnity
12.4 The Supplier warrants that it is legally entitled to do the things stated in clause 12.3 with the Intellectual Property Rights in the Deliverables.
12.5 The Supplier warrants that Pre-existing and New Intellectual Property Rights provided by the Supplier and incorporated in the Services and Deliverables do not infringe the Intellectual Property Rights of any third party.
12.6 The Supplier indemnifies the Buyer (as The Crown) in respect of any expenses, damage or liability incurred by the Buyer or The Crown in connection with any third party claim that the delivery of the Services or Deliverables to the Buyer or the Buyer's or The Crown’s use of them, infringes a third party's rights. This indemnity is not subject to any limitation or cap on liability that may be stated elsewhere in this Contract.


Vic Thu 21 Apr 2016

Hi Ed, I am completely new to this whole consultation process and may be missing the mark here - spoken with my NZRise hat on. Since we worked with both the Government Legal Network (via DIA/GCIO's office) after the disastrous IP clauses issued by DIA late in 2015, and with the work done on the MBIE Procurement Reference Group to specifically focus adoption of those clauses you have posted on this thread I have had no NZRise members complain about Govt Procurement contracts attempting to deviate. To provide context there had been 1-2 contracts per quarter prior.

Equally the Guidance notes for NZGoal also provide strong IP treatment guidelines, including that the supplier can commercialise their own IP.

Happy to assist with refining wording or clarifying specifically to reflect Open Source vs other IP license models if that is where you are heading with this. Vic.


Edward Abraham Thu 21 Apr 2016

Thanks for pointing this out @vic. It seems like the place to give example clauses for open source licensing, that can be slotted into the GMC. Hopefully @camfindlay1 can take you up on the offer to refine the wording.

Note that I also started a related thread about the ICT procurement policy, which would also need to be modified if open source licensing was to be promoted within government, so that there is consistency across these documents.


Danyl Strype Mon 25 Apr 2016

I think it's worth noting that a complete software project often contains three things, each of which needs to be addressed in the procurement contact when a public agency is commissioning new software with the intention that it will become an open source project:
* source code - covered by copyright law (needs to be under a free code software license)
* interface artwork, and manuals/ documentation - covered by copyright law (needs to be under CC or another open content license)
* names and logos - covered by trademark law (needs to be registered as a trademark to prevent commercial capture)


Cam Findlay Wed 3 Aug 2016

@vic @edwardabraham - you may want to chime in on the guidance notes (just starting the process on this now) around procurement and open source.

See the new thread https://www.loomio.org/d/aQ2xHfcI/guidance-notes-nzgoal-software-extension-and-intellectual-property-rights-in-ict-contracts