33.5.1 All of the IP licences granted by the Contractor should be perpetual, irrevocable and sub-licensable so that they survive termination of the Contract enabling the Authority or its nominated third party to continue providing the Services post termination. The survivorship clause, (Clause 24.7.3 (Continuing Obligations)) should make it clear that the IP clauses survive termination of the Contract.
33.5.2 In respect of other IPR central to the Project such as third party software licences, the Contractor should ensure that the Authority is either entitled to a novation of such licences or has the right to obtain a licence of such software at commercial rates. It is for the Contractor to ensure that any licence it (or its sub-contractors) enters into reflects these requirements. If the Contractor is unable to ensure that the Authority will have the benefit of all necessary IPR, it must indemnify the Authority against any costs incurred due to such non-availability. For example, if the Contractor chooses to use proprietary software, it must bear the risk if the owner will not agree to licence such software to the Authority or replacement Contractor. Similarly, the Contractor must bear the risk of the owner of the relevant IPR being prevented from licensing such IPR to the Authority or replacement Contractor due to trade restrictions imposed by its Government. If the Contractor does not want to bear such risks, it should find alternative IPR which is capable of being licensed to the Authority.
33.5.3 In addition to ensuring that the Authority has the right to use IPR required to continue the provision of the Service (e.g. on expiry, early termination or Authority Step-In), arrangements should wherever possible, be put in place to ensure that the Authority has immediate access to IPR and any information required to operate it. This is particularly relevant where the Authority only has a licence of critical IP because even where a licence is perpetual and irrevocable, the licence may still be terminated if the licensor becomes insolvent. In order to guard against the risk of insolvency of the licensor, source codes of software that form part of the IPR that is licensed to the Authority should be held in escrow by an independent party (e.g. the National Computer Centre) so that they can be accessed if the licensor becomes insolvent. The Contract should also provide for the Contractor to back up and store data securely.
33.5.4 It should be noted that an additional or new service provider will need access to IPR in advance of the Expiry Date (or any earlier termination) for the commencement of its service contract in order to acquaint itself with the Service and allow a smooth handover and such access rights should be negotiated in advance, rather than left to be resolved on termination.