BuildLaw Issue 34 December 2018 | Page 28

heightened and the potential upside to be gained by adopting a prudent approach is greater.
When incorporating technologically complex elements into a project, owners and developers should also consider:
- Requiring designers to warrant that the advanced systems will be fit for purpose for additional protection against undesirable design outcomes. To avoid dispute, developers should take care to ensure that the purpose of the system is clearly and consistently specified.
- Ensuring intellectual property provisions cover novel materials, systems and processes. Traditional IP licences granted by contractors to developers should be reviewed to ensure they cover all IP required to operate, maintain and (if required) modify the materials and systems. Parties should also consider whether a full transfer of IP ownership is desirable in lieu of a licence - for example, to protect against any licence becoming invalid in the event of contractor insolvency.
- The allocation of liability for the provision and use of data. Developers should consider who is best placed to carry the data related risks, such as the use of inaccurate data, data corruption and cyber-attacks. Any contract should also detail the permissible uses of commercially sensitive and/or personal data and expressly require compliance with all applicable data privacy laws.
- The availability and adequacy of insurance to cover risks created by new technologies and which party is to pay for it. Embedded systems may not be covered by traditional CAR and PII insurances and developers should review insurances carefully to determine whether additional specific insurances are required.
Build it better - in pieces?
Innovation is not confined to the end product of the development process. Leisure and hospitality projects are deploying modular and off-site construction processes in order to obtain time and cost savings. Such processes range from fully finished components or pods (for example,