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Displaying Fore-site - Drafting Web Site Development Contracts |
Whether you are taking your first tentative steps into the brave new world of e-commerce or are already an established player in the "real" commercial world, owning your own web site has become a must. |
Your web site may be a simple one: a virtual business card promoting your offline "cred". Alternatively your chosen site may be something more elaborate: an interactive platform designed to facilitate online transactions. |
Whatever the chosen form of your site, when contracting with a web developer to create it, regard must be had to far more than the site's aesthetic appeal. The complexity of the web development agreement will hinge on the complexity of your chosen web site. However, the following issues will be relevant across the board. |
Design quality and delivery |
Your web site will be viewed by a diverse audience using a variety of servers, network connections and technologies. This will affect the appearance and performance of your site and must be taken into account when drafting an agreement with the web developer. |
To avoid image variations and slow download speeds, the agreement should specify the format and maximum size of any graphics used. |
The agreement should also include a guarantee that the site will be able to be viewed on older web browsers. |
Content ownership |
The web developer will own the content of your web site, including any text, graphics, photos, and programming codes, which he/she has created. Rights to the content of the site should be assigned to you in the agreement. |
The developer may also need to obtain licences to use certain software or include third party content in your site. The developer should warrant in the agreement that the appropriate licences have been obtained and indemnify you against any third party rights, which may be infringed. |
The developer's licences and content rights should be assigned to you in perpetuity so that you have control over future maintenance and development of the site. |
Artistic and editorial control |
To ensure that your finished web site looks exactly as you want, specify in the contract that you are to have complete artistic and editorial control. |
Site Maintenance and Up-date |
If your web site is to be worthwhile, it must be regularly up-dated and maintained. Be sure to indicate in the web development agreement, who is responsible for maintenance and content up-date and who will bear the cost of both. |
Developer Recognition |
Often the developer will want to include in your site, a credit line and link to their business web site. You should specify in the contract the prominence, if any, to be given to the developer. |
Non compete |
You may wish to prevent the developer from recreating web sites of a similar appearance to yours. If so, a non-compete clause, which details factors contributing to the appearance of your web site such as graphics and layout must be included in the agreement. |
Confidential information |
When creating your web site, the web developer will often have access to your confidential information. The agreement should prohibit the developer from disclosing this information. |
Web site back up |
If the server on which your web site is hosted shuts down, you may lose valuable business. You should specify in the agreement procedures for backing up the web site so that in the event of a web server crash it may be quickly reinstalled on another server. |
Acceptance Testing Provisions |
You should not accept the web site as a finished product until you have had the opportunity to rigorously test that it works. The nature of these tests should be specified in the web development agreement. |
Termination |
You must outline in the agreement the circumstances under which you can terminate the web development agreement. |
Payment |
Given the unpredictable nature of web site design, avoid paying up-front for your web site. Allow for payments to be made in instalments as the developer completes specific stages of the site. |
Conclusion |
The above list is by no means exhaustive. When engaging a web developer, careful consideration should be given to the specific nature of your chosen web site and any further issues which may arise. Seek legal advice to ensure that all bases have been covered. Clark McNamara Lawyers have a specialised E-Commerce Law Group equipped with the expertise to advise on web site development agreements and the specific legal challenges brought by the new net-focussed millennium. |
