We helped a technology supplier with a major software licensing problem:
Our client had brought new sites into scope for a large, multi-site public sector customer, without a formal contract variation and without the requisite extension to software licences to cover the new sites.
After informal discussions to extend software licences to cover the new sites, the software provider demanded licence fees for new sites plus back payments (and threatened to tell customer that the sites were unlicensed).
We recommended an early dispute resolution approach, which ultimately:
helped the supplier stand up to the provider; and
enabled supplier to push the dispute into long grass for 18 months and to manage relationship with customer.
Using early dispute resolution, we analysed legal and factual position, and the wider context, to determine the strength of our client’s position and strategy. We then:
developed strategy with supplier to meet objective of delaying progress;
focussed on provider’s failure to invoke (correctly) the dispute resolution process;
took advantage of provider’s lack of focus on key issues;
enabled our client to manage staged escalation to senior management, rather than reacting to the provider’s demands; and
enabled supplier to manage communications to customer.
This resulted in:
A negotiated settlement
At a time to suit to our client, some 2 years after problem arose
The use of liquidated damages as a sole remedy for contractor delay is a well-established mechanism in the construction industry. It is designed to provide certainty for both employer and contractor in relation to the financial effects of the contractor’s culpable delay. The employer does not need to prove its loss caused by the contractor’s late completion, and the contractor knows the exact financial implications of its own actions, therefore giving both sides the certainty that they require in this scenario. Unfortunately, for a period of time recently, the Court of Appeal threw the liquidated damages mechanism into some considerable doubt in circumstances where the Contractor’s employment under the contract has been terminated.
A round up of recent employment news including the latest on furlough; mandatory vaccinations for care home workers; government consultation on flexible working; Right to Work checks; pregnancy loss policies; and case update.