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.
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.
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.