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Working with contractors

Please note:

  • The structure is based around the viewer being a member and wanting to know more about what the public sector licences allow.

  • This section only applies to the use of Licensed Data, including derived data that does not meet the derived data notification criteria for being published on open terms.
  • This section does not apply to the OS OpenData licence terms and products as, although the Member Licences refer to them, they do not apply to their use (including any data either derived from them or datasets that have been accepted as being on terms equivalent to OS OpenData terms) as they are not defined as Licensed Data. But, if your derived data comprises a mixture of data that includes Licenced Data then the terms of the Member Licence will apply.

  • This guidance also only applies to our intellectual property rights and interests and does not supercede any third party IPR (e.g. Royal Mail's, etc.).

Answer: Paid Contractor

Where you have a formal agreement with a third party to provide you with services, your Member Licence allows you share your data with your contractors.

You should note that the extent of use enabled by that licence also apply to the Contractor, so they need to be made aware. This can be achieved by either issuing them with one of the Standard Form Contractor Licences provided by us, or by incorporating all the relevant clauses from that Licence into your own bespoke version.

For more information on the contractor licences please use this link.

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Answer: Unpaid Contractor

Where you are using an unpaid contractor (for example, you are using volunteers) you can use the End User Licence (non-INSPIRE).

This allows the recipient to use the data to interact with the member in support of the delivery of that member’s Core Business.

To see the End User Licences please use this link.

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Answer: You don't need to use a contractor licence if ...

the contractor is working on your premises, have accepted your organisation's terms for on-site working, and are able to access your business systems in the same way as you. In these circumstances, they are regarded as being an ‘employee’ of your organisation.

This means they can have the same access rights as any other member of your organisation, including having access to the facilities available in the public sector members area of our website.

Although they must also be made aware of the terms of your public sector licence, there is no need for them to work under a contractor licence.

See the other answers in this section for other circumstances where you are using contractors.

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Answer: No, members can create their own version ….

and that it can be in either paper or electronic form as a ‘stand-alone’ document, or be appended/incorporated into another document the member has created.

Members should be aware that their obligation is to agree a Contractor Licence fulfilling the requirements set out in clause 2.6.1 of the Member Licence. Members need to be aware, that, in creating their own version, they must ensure that all of the relevant member licence obligations (the terms and conditions) are maintained, including:

  • to only use the data provided by you to the extent described by you (and also being within the use allowed under your Member Licence), which can be in the form of additional appendices to specify what they are;
  • to ensure they acknowledge copyright/database rights as they relate to you, the member;
  • not to sub-license, distribute, sell or make available the Licensed Data to any party other than you, unless you have incorporated that into your licence as part of the extent of use (see note below);
  • to confirm deletion of data from their live system, or destroy/return the data (and any output generated) upon completion/termination/expiry of the licence (although a single copy may be retained as an ‘archived’ copy to support an audit or other regulatory check
  • to ensure the data is not used for your (or their) commercial purposes or financial gain;

Members creating their own licence(s) should always read their Member Licence and Standard Form Contractor Licences to ensure they have incorporated all the relevant sections.

Additionally, if using an electronic form, members will need to have a system to register and capture the recipient’s contractual acceptance of the terms and conditions, including the timeframe, the data provided and for what purpose.

In both paper and electronic form, records should also be retained in accordance with the member’s normal business practice for contracts.

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Answer: The contractor licence aims to clearly set out the responsibilities of the public sector member and their contractors, including respective liabilities.

A number of Members have asked whether they are permitted to delete or vary the liability clauses from the Standard Form Contractor Licence.

The answer is ‘Yes’, since this clause is not required by clause 2.6.1 of the Member Licence.

However, Members should note that clause 11.3 indemnifies the Member (rather than Ordnance Survey) against losses resulting from the Contractor's breach of use of the Licensed Data, and so Members should carefully consider the increased risk to them of deleting or amending clause 11.3.

Members should also be aware that clause 2.6.7 of the Member Licence provides that a Member will be liable for any act or omission of a Contractor.

By way of background, Members have ‘unlimited liability losses relating to Intellectual Property Rights (IPR) infringement (on which 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”, so that if a breach by a Contractor results in a Member being liable to Ordnance Survey 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 Ordnance Survey 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 is for the Member and the Contractor to agree, depending on the nature and value of the work being carried out by the Contractor (see clause 11.4).

A useful starting point when considering the appropriate amount of the cap, is often the estimated total fees which will be payable under the Contractor Licence 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.

For more information on Liabilities, see section 9 of your Member Licence.

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Answer: You do not need to use a Contractor Licence if …

the only data products involved are OS OpenData products, data derived from them or data that has been granted an exemption on OS OpenData terms

The OS OpenData licence allows you to use the OS OpenData datasets in any way and for any purpose.

We simply ask that you acknowledge us with "Contains OSurvey data © Crown Copyright [and database right] [year]".

For more information on OS OpenData

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Answer: They can, provided that the other contractor has entered into a contractor licence with the same member for the same data and …

provided that:

  • the works which each of you is undertaking for the member are related, and
  • the lead contractor
    • does not receive any payment for the supply, and
    • they obtain written confirmation that the other contractor is licensed by the member for the data

Note: there is an alternative way of doing this, where all parties are known at the time when the contractor arrangement is set up.

The member can create their own version of the contractor licence, incorporate the Licensed Data products being used and then describe the scope of the works undertaken by the different contractors. Then the member can get all parties to accept the terms of the one licence.

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Answer: Unfortunately it is not possible to answer this with definitive guidelines ...

because any case would need to be looked at on an individual basis. However, the first step would invariably be to raise any breach with the Member itself, usually at an operational level but 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 Ordnance Survey data, for example, attempting to sell Ordnance Survey datasets to third party 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”.

Members should note that, depending upon circumstances, the relevant Agreement Managers at BIS/Scottish Government would be kept informed and or be involved.

Example scenario:

What happens if a Member’s contractor breaches its Contractor Licence without the Member knowing, such as keeping a copy without their knowledge and using it for other customers, would the Member be in breach of its Member Licence? Who would Ordnance Survey pursue if discovered?

First, we would expect the Member to behave in a professional manner with regards to the appointment and interaction with a Contractor. In addition, the Member must notify us as soon as it suspects any infringement of Ordnance Survey’s IPR, including infringement by any Contractor.

This means, for example, that the Member should use the same degree of care in appointing a Contractor which it would use where appointing a Contractor to handle the Member’s own valuable information. Equally, the Member should take reasonable steps to ensure that the Contractor is continuing to act in accordance with its Contractor Licence, rather than, for example, passing the data over on the Commencement Date and then ceasing to manage the relationship at all.

Note: One specific requirement is that the Member should remind the Contractor, on any termination, of the obligation to delete relevant data (see clause 7.1.1 of the Standard Form Contractor Licence).

In the event of any breach by the Contractor of its Contractor Licence, Ordnance Survey would generally look to work together with the Member to ensure that the Contractor remedies any breach.

In the event that Ordnance Survey needed to seek financial “damages” for any breach, then assuming that the Member had behaved professionally (e.g. 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. (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 Ordnance Survey would have the option of pursuing the Member instead or as well as the Contractor.)

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Answer: For temporary staff (including secondees, interns, students and work experience)

if they have accepted your organisation's terms for on-site working, and are able to access your business systems in the same way as you, they are regarded as being an ‘employee’ of your organisation.

This means they can have the same access rights as any other member of your organisation, including having access to the facilities available in the public sector members area of our website.

Although they must also be made aware of the terms of your public sector licence, there is no need for them to work under a contractor licence.

See the other answers in this section for other circumstances where you are using contractors.

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Answer: 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, which could be:

  • using your own servers,
  • through ‘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.

You are responsible for ensuring that any information you make available, by whatever route they are choosing – 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.

For more information on the contractor licences please use this link.

Please 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 as Public Sector Mapping Agreement or One Scotland Mapping Agreement member are able to grant under the terms of your member licence.

See here for additional guidance on using web mapping services.

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Answer: No - the Contractor Licence is not transferable.

If the contract ends for any reason, then the licence also ends.

Any data issued to / held by the contractor (including any copies made by them) under the contractor licence must be returned to the member or destroyed as required.

Note: an archive copy may be retained by the contractor, for use solely in connection with any query about the works carried out at the time.

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