- Can our contractors use their own contractor(s) for some of the work?
Yes they can.
The caveat is that there still needs to be a direct link with the member. This means that those additional (sub) contractors also need to have signed up to a comparable contractor licence with the same member for the same data.
- the works which each of you is undertaking for the member are related, and
- the lead contractor does not receive any payment for any supply to their sub-contractor, and
- the lead contractor obtains written confirmation (for example, a copy of the contractor licence) that the sub-contractor is licensed by the member for the data
Note: As members can create their own version of the contractor licence, an alternative way of doing this (and where all parties are known at the time when the contractor arrangement is set up) is to incorporate all the necessary information into a single document. You can then get all parties to accept the terms of the one licence.
For some examples of contractor arrangements (public sector licensing - and contractors.pptx or web page)
- What are the liability clauses about?
The contractor licence aims to clearly set out the responsibilities of the public sector member and their contractors, including respective liabilities.
By way of background, as part of the Member Licence (Section 9), members have ‘unlimited liability losses relating to Intellectual Property Rights (IPR) infringement (where attention usually focuses), death/personal injury from negligence, fraud, competition law, Confidential Information and Free to Use Data.
In the Standard Form Contractor Licence, the liability position has been “back to backed”.
This means that, if a breach by a contractor results in a member being liable to OS under its Member Licence for IPR infringement (or one of the other “unlimited liability losses”), the contractor’s liability is, like the member’s own liability, uncapped.
The purpose of this is to ensure that if a member were found to be financially liable to OS as a result of a breach by its contractor, the member could recover the full amount from the contractor.
However, the Standard Form Contractor Licence provides for other types of losses, including for example, damage to a member’s own data or systems. For most of these other breaches the liability is capped (at up to £340,000).
The amount of such cap for these other losses is for the member to decide and the contractor to agree to, but depending on the nature and value of the work being carried out by the contractor (see clause 11.4).
For example, a useful starting point when considering the appropriate amount of the cap, is often the estimated total fees payable for the works the Contractor Licence applies to or, if the Contractor Licence is expected to run for several years, it may be more appropriate to cap liability at aggregate annual fees.
If required, the PSMA Member should of course take its own legal advice on this provision.
- Can we delete the liability clauses?
Yes. As you, the member, will be the one issuing the Contractor Licence, you can also decide to delete or vary the liability clauses as they are not required by clause 2.6.1 of the Member Licence.
However, you should also note that clause 11.3 of the Contractor Licence indemnifies you, the member (rather than OS) against losses resulting from your contractor's breach of use of the Licensed Data. As a result, you should carefully consider the increased risk to you of deleting or amending that clause.
You should also be aware that clause 2.6.7 of the Member Licence provides that you, the member, are liable for any act or omission by a contractor.
- What happens in the event of a breach?
Unfortunately, it is not possible to answer this with definitive guidelines because any case needs consideration on an individual basis. However, the first step would invariably be to raise any breach with you, the member. This will usually be at an operational level (i.e. with the Principal Contact or Geographic Liaison Officer) but would be at a more senior level in the case of a serious breach.
Again, explaining what is meant by “serious” breach is also not particularly easy, but it is fair to say that the most serious type of breach would probably be a wilful misuse of OS data, for example, attempting to sell OS datasets to third parties for unlimited commercial exploitation by the third party. However, other less serious breaches, if they continue for a long period of time despite requests for them to cease, may at some stage also become “serious”.
You should note that, depending upon circumstances, the relevant Agreement Managers at BEIS/Scottish Government would be kept informed and or be involved.
What happens if one of your contractors breaches its Contractor Licence without you, the member knowing, such as keeping a copy without your knowledge and using it for other customers - would you be in breach of your Member Licence and who would OS pursue if discovered?
In these circumstances, OS would generally look to work together with you, the member, to ensure that the contractor remedies any breach.
In doing so, we would expect you to be able to demonstrate that you have behaved in a professional manner with regards to the appointment and interaction with a contractor of yours.
This means, for example, that you should use the same degree of care in appointing a contractor that you would use where appointing a contractor to handle your own valuable information.
Equally, you should also have taken reasonable steps to ensure that the Contractor has continued to act in accordance with its Contractor Licence, rather than, for example, passing the data over at the start and then ceasing to manage the relationship at all (i.e. through periodic performance reviews). this includes notifying us as soon as it suspects any infringement of OS’ IPR, including infringement by any contractor (see clause 4.1.3 of the Member Licence).
In the event that OS needed to seek financial damages for any breach, then assuming the above has been followed (e.g. you had not somehow condoned the breach, or failed to report a clear infringement), it is likely that we would seek to recover such damages from the contractor.
Nonetheless, the member should be aware, however, that the member is deemed to be liable for breaches by its contractor (see clause 2.6.7 of the Member Licence), and so OS would have the option of pursuing the member instead or as well as the Contractor.)
- We are terminating a contractor licence, what can the contractor retain?
At the point of termination of the contract, they can only keep an archive copy.
The only use still allowed by the contractor to enable them to respond to a complaint or challenge from a regulator or other third party regarding their use of the data during the period of the contracted works.
They must have either destroyed (and confirmed so) or returned to you all other data collected.
- Do we need to use a contractor licence when using ‘hosted’ services?
Yes - your use of a hosted service may require the use of a contractor licence.
We understand that the way that you may be using 'hosted' (including cloud) services can include:
- using your own servers,
- ‘leasing’ space from a 3rd party supplier (under some form of contract which will have service levels attached) as part of your network,
- using a separate ‘hosted’ service.
In all the above scenarios, you are responsible for ensuring that any information you make available, by whatever route and the extent of that use is within the allowances of your Member Licence.
If you are using an intermediary to provide all (or part) of that 'hosted' service, then you are now using a contractor, so the incorporation of the contractor licence terms into that arrangement is required.
Note: Where you are using a third party web mapping Application Programming Interface (API), the position in respect of licensed data is that it is your responsibility as one of the licensees to determine whether any terms you are signing up to with your chosen third party’s API service are compatible with your licence with us. This included ensuring that those third party terms do not claim more wide-ranging or longer licence rights for the API provider than you are able to grant under the terms of your Member Licence.
See here for additional guidance on using web mapping services.
- Do we need to use a contractor licence with OS OpenData?
No, if the only data products involved are OS OpenData products, data derived from them or data that has been granted an exemption on Open Government Licence (OGL) terms
As a reminder, under the OGL terms, you are able to use the OS OpenData datasets in any way and for any purpose. We simply ask that you appropriately acknowledge the copyright and the source of the data (see the Acknowledgements section).
For more information on OS OpenData licensing and products.