A smart blue-green roof requires a smart contract!
Date: August 03, 2022
Modified November 14, 2023
Written by: Noreen Sturris
Reading time: +/- 2 minutes
Date: August 03, 2022
Modified November 14, 2023
Written by: Noreen Sturris
Reading time: +/- 2 minutes
The Netherlands has traditionally fought against water. But now that we are building more and more sustainably, the battle against water is increasingly being transformed into a partnership with water. This can be seen in blue-green roofs. These roofs store rainwater to water the sedum or keep the roof cool in hot periods. Thanks to smart sensors on the roof that are connected to software, it is possible to respond to drought (water retention) or heavy rain (drainage to the sewer).
A smart blue-green roof combines construction and ICT: that calls for good contracts. In this contribution, Noreen Sturris discusses the main contractual concerns in realizing a smart blue-green roof on the basis of a case study.
Client commissions the contractor to construct a smart blue-green roof. The parties agree that the contractor will construct a sedum roof with an underlying crate system for watering the sedum. The contractor will install smart sensors on the roof. The smart sensors are connected to smart software that allows the roof to automatically respond to weather conditions. The contractor is no longer involved once the smart roof is completed.
The contractor makes a commitment to create a smart roof. This includes two aspects:
Both aspects (contracting and ICT) should come together in a contract. Of course, there are more issues that are relevant in the contract. Below we consider three important points for contractors in contracts about smart green-blue roofs.
Include clear maintenance instructions for the sedum in the contract. Include instructions on what a sedum roof is and is not suitable for. For example, may the client install solar panels? To avoid difficulties of proof, include a provision stating that the principal must prove that it has performed proper maintenance (according to the maintenance instructions) and that in the absence of this proof, the contractor's liability for defects in the roof is excluded.
The importance of maintenance instructions follows from a ruling by the Arbitration Council for Construction Disputes. According to the arbitrator, sedum roof vegetation does not in principle need to be maintained (such as watering) if the contractor has not given instructions to do so. In that case, the sedum had decayed due to lack of watering and the contractor was ordered to repair it. These damages are simply preventable with proper maintenance instructions in the contract.
The smart roof can only function if it can communicate with the software. The contractor (in this case) did not develop the software and therefore does not "own" the software. Thus, the contractor itself cannot provide a right to use the software to its client.
In that case, there are two possibilities: the software supplier issues a license directly to the client or the contractor functions as a "conduit" between software supplier and client. This relationship is important, among other things, for the contractual arrangements regarding liability for, among other things, the operation of the software, maintenance, security or fixing a bug in the software.
The roof must be functional for a minimum number of years. To that end, the software is a crucial part of the roof and is (usually) supplied and maintained by an external software supplier. A contractual concern in that context is whether the software license is provided for a definite or indefinite period of time. Also consider the situation if the software supplier goes bankrupt or no longer wishes to support, maintain or secure the software. Proper arrangements can be made for such situations in contracts.
As mentioned, there are more important topics that belong in a contract that brings together Construction & ICT. Paying attention to the content of the contract will prevent future discussions as much as possible. A clear, readable and unambiguous contract benefits all parties involved.
As attorneys for business owners , we understand the importance of staying ahead. Together with us, you will have all the opportunities and risks in sight. Feel free to contact us and get personalized information about our services.