Our client had spent considerable time negotiating complex intellectual property rights clauses with a subcontractor. We spent half a day resolving the situation.
Context and Challenge
Our client was a prime contractor, responsible for delivering a DFID-funded project in Africa. Negotiations over the intellectual property rights clauses had gone on for months. Unable to break the deadlock, our client asked us for help. As our client was the prime contractor to their own client – DFID – we had to be mindful of the rights that DFID had under the head contract. Whatever obligations our client had agreed to in respect of the intellectual property rights clauses in the head contract the same obligations had to be mirrored in the subcontract.
Process and Insight
We analysed the contract that our client was negotiating with the subcontractor as well as the contract that our client had entered into with DFID. Our focus, of course, was on the intellectual property rights clauses. We also listened to our client to understand what work the subcontractor would be doing so that we could take a legal and commercial view on risk and the degree of importance that we needed to attach to the intellectual property rights clauses.
Having done the analysis, we concluded that the client had been taking an overly cautious approach in their negotiations. We advised the client that the intellectual property rights clauses that they had included in their standard subcontract agreement could be modified in line with the wishes of the subcontractor while still giving them the protection that the client needed. We amended the intellectual property rights clauses and sent them back to the client with a covering email to send to their subcontractor.
The subcontractor accepted the intellectual property rights clauses that we amended so that the client and subcontractor could then sign their contract and move forwards. After months of deadlock, we were able to spend half a day finding a solution so that the parties could move forwards with their project.