Sharing CAD Files: Risk Management Tips
By Jonathan C. Shoemaker and John P. Williams
Lee & McShane, PC│Washington, DC
As professionals who understand the value of their own work product, architects inherently recognize that the decision to share CAD files requires careful consideration. It is not uncommon, however, for owners and contractors to press the architect to share its CAD files “for the good of the project” and to streamline the preparation of coordination drawings, shop drawings, and other submittals, while ignoring the fact that sharing CAD files can carry considerable legal risk. This article identifies some of the risks faced by sharing CAD files and offers some guidance on how to minimize your legal risks when doing so.
The risks in sharing CAD files take several forms. First, there is risk that the transmission of the CAD files could create an uninsurable warranty obligation on the part of the architect. Second, there is risk that information in the CAD files (but not in the Contract Documents) may be misinterpreted and/or misused by the recipient of the information. Third, there is risk that the CAD files could contain a virus, or some other malware, which infects/corrupts the recipient’s computer systems.
To guard against these risks, the prudent architect insists on a stand-alone written agreement setting out the terms of the transfer of CAD files. The transfer document should be structured as a waiver and release agreement aimed at shifting any future risk arising from the use (or misuse) of the CAD files. Furthermore, the transfer agreement should place restrictions on the recipient’s use of the files, as well as address various issues unique to digitally stored information.
The CAD transfer agreement should contain precise language disclaiming all warranties regarding the information on the files. Depending on the jurisdiction, the transfer of the CAD files may be considered a sale of goods that is subject to a set of implied warranties traditionally only associated with merchants. To avoid any unintended warranties regarding the CAD files, it is vital that the agreement be carefully drafted to properly disclaim all warranties applicable to the CAD transfer.
The CAD transfer agreement should also impose an affirmative obligation on the recipient to shield the architect from any and all claims and liabilities arising from the recipient’s use of the CAD files. Moreover, because each CAD file is unique to the project for which it was created, the agreement should expressly bar the recipient from using the CAD files on any other project or retransmitting the files to a third-party without the architect’s authorization. Given the ease with which digital files can be modified, the architect must be protected should its client (or a third-party) shortcut the construction process, either through the misuse of the CAD files on the project or through the improper repurposing of the architect’s design for use on another project.
Finally, the transfer agreement should also stipulate that the architect does not guarantee the quality of the electronic files. For example, the agreement should specify that the architect is not responsible for the security of the data, and shall be held harmless from losses stemming from computer viruses or corrupted files. Similarly, the recipient party should bear any costs associated with converting the CAD files into a usable format. Simply put, the transfer agreement should reflect that an architect is a design professional, not a computer programmer.
While sharing CAD files may seem innocuous, the risks faced by architects are real. While the practice tips discussed in this article provide a general foundation, an effective CAD transfer agreement should address for these risks, and others (e.g., copyright and insurance), to protect the architect before any CAD files are shared.
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