Instructions: C106™–2022, Digital Data Licensing Agreement

Synopsis. 

AIA Document C106™–2022 provides a licensing agreement for two parties who otherwise have no existing licensing agreement relating to the use and transmission of Digital Data. Some or all of the Digital Data may be subject to copyright protection, such as the Architect’s or a Consultant’s Instruments of Service. C106 allows a Transmitting Party (1) to grant a Receiving Party a limited non-exclusive license for the Receiving Party’s use of Digital Data on a specific project, (2) to set forth procedures for transmitting the data, and (3) to place restrictions on the license granted. C106 provides for the Receiving Party to compensate the Transmitting Party for the Receiving Party’s use of the Digital Data. 

Parties that have previously executed AIA agreements for design services or construction, such as AIA Documents B101™–2017, Standard Form of Agreement Between Owner and Architect; C101™–2017, Standard Form of Agreement Between Architect and Consultant, or an agreement that incorporates A201™–2017, General Conditions of the Contract for Construction, have already entered into licensing agreements pursuant to the provisions in those agreements. To establish protocols for the transmission of Digital Data, including Building Information Models, or to restrict the usage rights permitted in those agreements, parties should consider completing one of the AIA’s Building Information Modeling exhibits, such as AIA Document E201™–2022, BIM Exhibit for Sharing Models with Project Participants, Where Model Versions May be Enumerated as a Contract Document or E202™–2022, BIM Exhibit for Sharing Models with Project Participants, Where Model Versions May Not be Enumerated as a Contract Document, and incorporating it by reference into their pre-existing agreements.

For all document details, see the summary »

Changes from the Previous Version. 

AIA Document C106–2022 is the successor document to C106–2013. The most significant change is that C106–2022 includes a selection choice in Section 3.1 related to the use and reliance of Digital Data. Further, in addition to other minor language changes, C106-2022 contains updated language regarding termination of the Agreement. Specifically, the final clause above the signature lines now states that the Agreement terminates one year from the date of the Agreement, unless the parties change the termination date. 

Completing C106–2022.

Cover Page

Date. The date represents the date the Agreement becomes effective. It may be the date an original oral agreement was reached, the date the Agreement was originally submitted to the Transmitting Party or the Receiving Party, the date authorizing action was taken or the date of actual execution. Digital Data should not be transmitted prior to the effective date of the Agreement. 

Parties. Parties to this Agreement should be identified using the full address and legal name under which the Agreement is to be executed, including a designation of the legal status of both parties (sole proprietorship, partnership, joint venture, unincorporated association, limited partnership or corporation [general, limited liability, close or professional], etc.). Telephone numbers, and electronic addresses to which Digital Data can be transmitted, should also be stated.

Project. Describe the Project by including (1) the official name or title of the facility, and (2) the location or address, if known.

Digital Data. Describe the Digital Data that the parties intend to be covered within the scope of the Agreement. Digital Data can be a broadly applicable term, however, the terms of this agreement may only apply to certain types, or limited subsets, of Digital Data (i.e. electronic versions of the Architect’s Instruments of Service). Accordingly, this section allows the parties to specifically identify the Digital Data for purposes of this agreement.

Article 1   General Provisions

  • 1.2 It is important to note that this agreement is not intended to establish any other contractual relationship between the parties except for the specific purpose of licensing the use of Digital Data for use on the Project. 
  • 1.3 Confidential Digital Data is a subset of Digital Data that the Transmitting Party has identified as “confidential.” The Transmitting Party may make such identifications in the subject line of an e-mail message attaching a file containing Confidential Digital Data, or may embed the identification in the file itself. Designating Digital Data as “confidential” allows the parties to protect different types of sensitive business information or practices, as well as intellectual property, from disclosure or use beyond that required in furtherance of the Project.

Article 2   Transmission of Digital Data

  • 2.1 AIA Document C106 conveys a nonexclusive limited license to use Digital Data in accordance with the terms and conditions set forth in the agreement. C106 is not an agreement for the sale or assignment of any rights in the Digital Data or in the software used to generate it. To use the software used to generate the Digital Data, the Receiving Party must possess a license from the software provider. 
  • 2.3 Because Digital Data may be subject to copyright protection or considered confidential or business proprietary, AIA Document C106 requires that the Transmitting Party identify itself as having the right to transmit Digital Data or Confidential Digital Data to the Receiving Party. Therefore, the Transmitting Party warrants that it is the copyright owner, or has permission from the copyright owner to transmit Digital Data, or is authorized to transmit Confidential Digital Data for its use on the Project.
  • 2.4.1 Due to the potential for damages that might arise from the disclosure or subsequent use of Confidential Digital Data, the Receiving Party agrees to keep such information confidential and not to disclose it other than in certain circumstances outlined in Section 2.4.1. These circumstances include situations where the Receiving Party is compelled by lawful court order or other similar compulsory legal process to disclose the Confidential Digital Data. Section 2.4.1 also permits disclosure to others on the project so they may perform their work or services, so long as they are subject to the same disclosure restrictions set forth in this agreement.

Article 3   License Conditions

In this section the parties should identify all rights or restrictions relating to the Receiving Party’s use of the Digital Data, as well as requirements for data format, transmission method or other conditions on data to be transmitted. 

  • 3.1 The selection in Section 3.1 is new in 2022. If the parties intend that the Digital Data will be used for the Receiving Party’s information only, then the parties can select the first box (§ 3.1.1). If, however, the parties intend that there will be permitted uses for, and potentially some reliance on, the Digital Data, then they can select the second check box (§ 3.1.2) and describe the terms, permitted uses, and other conditions related to the Digital Data.

Article 4   Licensing Fee or Other Compensation

Digital Data may contain valuable intellectual property for which the Transmitting Party may be entitled to compensation. There may also be costs associated with the preparation or transmittal of the Digital Data for which the Transmitting Party should be compensated. This section provides a space where the parties can set forth agreed-upon compensation and reimbursement. 

Executing the Agreement

The persons executing the Agreement should indicate the capacity in which they are acting (i.e., president, secretary, partner, etc.) and the authority under which they are executing the Agreement. Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached.

Notes.

Termination. C106-2022 contains updated language regarding termination of the Agreement. Specifically, the final clause above the signature lines now states that the Agreement terminates one year from the date of the Agreement, unless the parties change the termination date.

Modifications. Particularly with respect to professional or contractor licensing laws, building codes, taxes, monetary and interest charges, arbitration, indemnification, format and font size, AIA Contract Documents may require modification to comply with state or local laws. Users are encouraged to consult an attorney before completing or modifying a document.

Reproductions. This document is a copyrighted work and may not be reproduced or excerpted from without the express written permission of the AIA. There is no implied permission to reproduce this document, nor does membership in The American Institute of Architects confer any further rights to reproduce this document. For more information, see the document footer and the AIA Contract Documents® Terms of Service.

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