NEC X9 hands the Client ownership of the Contractor's rights in its design material for the works, unless the Scope says otherwise. Without it, the Contractor normally keeps ownership and the Client has a right to use the design for stated purposes.
X9 is available in the NEC4 ECC, ECS, Professional Service Contract and Professional Service Subcontract, but not the term contracts. In NEC3 it appeared in the Professional Service Contract only, not the ECC. It's one of the NEC secondary Options most often overlooked until a Client wants to reuse or change a design.
Use right or ownership?
| Core clause 22.1 | Option X9 | |
|---|---|---|
| What the Client gets | A right to use and copy the design | Ownership of the rights over the material |
| Purpose limit | Building, using, altering or demolishing these works, unless the Scope changes this, plus others it states | No purpose limit unless the Scope says otherwise |
| Can the Contractor reuse it? | Yes, generally, since it keeps ownership | Not freely, once the rights have passed. Read any carve-out in the Scope |
| Paperwork | None needed | The Contractor provides the documents that transfer the rights |
The practical question for a Client is whether a use right is enough. If it wants to use the design on a second site, license it to others or sell it, the 22.1 right may not reach that far. X9, or specific wording in the Scope, closes the gap.
How the rights move down the chain
X9 only works if the Contractor actually owns what it's transferring. Much design sits with Subcontractors or specialist designers, so the Contractor has to obtain equivalent rights from them. In the NEC4 subcontract text, the rights flow to the Contractor, who may pass them to the Client, and the Subcontractor has to get matching rights from any Subsubcontractor. The Subcontractor can also be asked to obtain other rights the Subcontract Scope names, such as licences for third party software.
If an early subcontract doesn't include these terms, the Contractor can be left in breach with no way of complying. Check this at procurement, along with back-to-back subcontract terms.
A worked example
A fictional example. A water company lets a pumping station contract and plans to build five more to the same design. Under the core clause alone, it can use and alter the design for this station. Repeating it elsewhere needs extra wording in the Scope.
It selects X9 and adds a carve-out to the Scope: the Contractor keeps the rights in its standard temporary works details and its proprietary control software, and the Client gets a licence to use those on the pumping station only. Everything else transfers. The Contractor's design consultant, appointed under a subcontract, has the same terms and signs the transfer documents at handover.
Without that carve-out, the Contractor could unintentionally give away design details it uses on every job.
What to check
- Tender stage: have you priced the value of what's being given up? A specialist contractor may treat its design as a business asset.
- Scope: does it list exclusions clearly, including pre-existing material?
- Other Options: X10 has its own rules about ownership of the Information Model. X15 lets the Contractor use its own material elsewhere, subject to limits. Read these with X9 so that they don't conflict.
- Handover: who collects the signed documents, and when? They're easy to forget once the job is complete. Include them in the Scope's requirements for Completion if they matter.
- Timing of ownership: X9 doesn't set a payment link. If you want rights to transfer only on payment, a Z clause would be needed.
Design liability is a separate question. Owning the design doesn't change who is responsible for it. See the Contractor's design. Note too that NEC3 ECC contracts handled any transfer through additional conditions, so a template carried over from NEC3 may need rewriting.
Related guides
- NEC Secondary Options: X, Y, W and Z Clauses Explained
- X10: Information Modelling
- X11: Termination by the Client
- X12: Multiparty Collaboration
- X7: Delay Damages
- X8: Undertakings to the Client or Others
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This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.