Web design and development contracts

Websites come in all shapes and sizes, from one page pure HTML/CSS brochure sites that can be produced and published in minutes, to hugely complex software and database driven web applications that may take years to plan, develop and implement. All commercial web design and development projects should be the subject of some form of written agreement. The agreement that you choose should reflect the complexity of the project and the amount of money and risk involved, as well as business models of the developer and customer.

A typical web design and development agreement will cover some or all of the following issues.

• The design and development process: how is the website specified? Will the developer be required to meet a specific timetable and completion date? Will flexibility be built into the process, taking account of specification changes and/or unforeseen technical challenges? Will agile development methodologies be employed? Can the developer sub-contract any of the development work?
• The customer's obligations: must the customer provide any content or indeed code for the website? If so, precisely what must be provided and when? Is the customer free to provide additional content for incorporation into the website? Will the supply of additional content entail the payment of additional charges? Where the performance of the developer's obligations is dependent upon the customer providing materials or co-operation in a timely fashion, what happens if the materials or co-operation is not so provided.
• Delivery and acceptance: in what form will the website be delivered to the customer? For example, will the source code for all software elements of the site be provided to the customer? Will the developer fully test the website before delivery to the customer? Must the customer then perform its own acceptance tests on the website? What are the consequences of a failure to pass the acceptance tests? What are the consequences of success?
• Intellectual property rights: how will the copyright and other intellectual property rights in the website be treated? Will they be assigned to the customer? Will they be licensed to the customer? Could there be a mixed assignment and licence? And what about third party rights (including rights under open source licences)?
• Warranties: will the developer given any warranties that the website will not infringe others' intellectual property rights? Will any guarantees be given concerning the operation of the site and the presence of defects? Who will be responsible for ensuring the site is legally compliant? And what limitations will be placed upon the scope of the warranties?

These are just some of the issues that need to be a dealt with in a typical web development and design agreement.

Web design agreements and T&Cs

The web design agreements and T&Cs are suitable for use by web designers whose work does not involve significant amounts of software or database development.

Agreements: Each of these three documents is in traditional agreement form: the parties names are at the top and they sign the agreement at the bottom.

T&Cs: These templates are designed to be incorporated into a contracting process where the contractual acceptance (e.g. signature) is in another related document, such as a proposal form, and where the terms and conditions are incorporated by reference (e.g. "by signing this proposal, you agree to the provisions of the attached terms and conditions"). Of the three terms and conditions templates, the balanced one has the greatest flexibility.

The different documents are very similar in substance. The differences lies in the bias of the documents. The balanced documents are even-handed between the interests of the parties, while the pro-designer and pro-customer documents favour one party over the other. The balanced documents are the most flexible.

The Services: The services clause of the web design agreements briefly outlines the services that will be supplied by the designer to the customer. In addition to designing, creating and delivering the website, the designer may have obligations to incorporate content into the website, consult with the customer or keep the customer informed of progress, and provide the customer with some form of access to the website during the course of the design project. One question that will need to be answered is whether the designer is committed to delivering the website to the customer by a specified date.

Customer obligations: Most web design projects involve at least some input from the customer between the agreement of the design specification and the delivery of the website to the customer. The web design agreements include general obligations upon the customer to co-operate with the designer and to provide such documentation and information as may be need by the designer to complete the project. Another customer obligation that you may wish to include in your agreement is making the customer responsible for securing any third party co-operation that is required during the project (e.g. from the customer's third party hosting company or marketing agency).

Delivery and acceptance: The delivery and acceptance section governs such issues as the date by which the website must be delivered to the customer, the necessity (or otherwise) of the customer carrying out acceptance tests to determine whether the website operates as it should, the procedure to follow in the event that the website passes the acceptance tests, and the procedure to follow in the event that it does not. Where the website fails the acceptance tests, the clause may include a remedial period during which the designer must fix the problems.

Third Party Works: Few websites are entirely the work of a single designer. Even the simplest website might include elements - such as stock photographs and contact form scripts - the copyright in which is owned neither by the designer nor the customer. The web design agreement should establish the basis upon which such third party works are to be used by the customer. The designer cannot assign the rights in those works to the customer (the designer does not own the rights) but may be able to secure a direct licence for the customer to use the works, or alternatively may be able to sub-license the customer to use the works.

Intellectual Property Rights: You will need to decide whether the rights in the website are to be assigned or licensed to the customer. The different web design agreements take different approaches to this question. See the individual product descriptions for more information.

Web development agreements and T&Cs

These web development agreements are suitable for use in relation to web design/development contracts involving software/database development.

Agreements: The agreement-style documents are in traditional form, and need to be signed in the traditional manner by each party.

T&Cs: They are designed to be incorporated into a contracting process by reference: that is, the contract will come into force when another document is signed or otherwise agreed, and that other document will incorporate the T&Cs into the contract. T&Cs style documents are used where one party is imposing its standard terms of business on the other party. In other words, there is no scope for negotiation of the legal terms, although there may be scope for negotiation of other matters, such as price.

The web development agreements share a number of clauses with the web design agreement templates. For a discussion of the contents of the sections of the web development agreements titled "The Services", "Customer obligations" and "Delivery and acceptance", see above.

Intellectual Property Rights: The treatment of IP in the web development agreements rests on a distinction between four different categories of rights.

• First, rights in the the design elements of the website. The design elements are defined as the visual appearance of the website (including page layouts, logos, animations, text, video graphics, photographs and other artwork) and the mark-ups and style sheets that are comprised in or generated by the website.
• Second, rights in third party works incorporated into the website. These are, simply, rights in works that are comprised in the website and are owned by a third party.
• Third, rights in works supplied by the customer or on behalf of the customer to the developer.
• Fourth, rights in the software elements of the website. These are defined as all those elements of a website not falling within any of the preceding categories.

Each category of rights is subject to a different treatment under the terms of the web development agreements. Most customers will want their website design to be unique, and accordingly the copyright and other intellectual property rights in the design elements are assigned to the customer. The assignment takes place at the point of acceptance of the website by the customer, and includes all "reversions, revivals, extensions and renewals" of the assigned rights. The software elements, by contrast, are licensed to the customer on a non-exclusive basis, rather than assigned. This is appropriate for most projects, as software will very often be reused in one form or another. You will need to think carefully about the scope of the licence granted. For example, does the customer have the right to re-distribute the software? The appropriate way of dealing with third party rights will depend upon the nature and licensing scheme of the relevant third party work. Some such works should be licensed directly to the customer by the third party licensor, either on standard licensing terms or on terms that have been individually negotiated. Other such works may have been licensed to the developer on such terms that the developer can grant a sub-license of the rights to the customer. The customer is responsible for obtaining appropriate licences of rights in customer works, where required.

Warranties: A set of fairly standard warranties is included with the web development agreements. The developer warranties include assurances that the developer has the authority to enter into the agreement, the developer will use reasonable care and skill in the supply of the services, that the website will not infringe any third party IP rights, and that the website will operate without defects for a specified period (subject to certain limitations). If defects arise during that period, the developer must fix the site without further charge. A set of restrictions on the warranties is also included. For example, the customer may be asked to acknowledge that the website has been designed to work with defined server and browser technologies, and that no assurances are given in relation to other servers/browsers. Further, the customer may be asked to acknowledge that no legal advice has been given by the developer. Many if not most websites can be criticised from a legal point of view, and developers will rarely have the expertise to guarantee legal compliance.