The complexity of a website agreement depends upon the nature of the website. A website may be a low-cost billboard, or it may be a multi-dimensional business outlet, capable of servicing numerous customers. It may be, like most websites, somewhere in the middle.
Who
Owns the Product? Most
developers will have the status of independent contractors. Under U.S. copyright
law, independent contractors are the owners of copyrightable work they create.
The developer might want to reuse some or all of the elements in future
projects, and therefore, would want to retain the ownership. On the other hand,
the client might want ownership to prevent such reuse. Additionally, the
developer might be using graphics created prior to the current project. These
issues need to be considered by both developer and client.
Who
Controls the Website? Often,
the developer will house the website on the developer's server, maintaining the
site and bearing the responsibility for adding or changing the content of the
site, when requested by the client. This may raise questions regarding liability
to third parties, or possibly cause potential liability for defamation or
copyright infringement. Therefore, the developer will want the right to delete
or refuse to add certain problematic content. These issues need to be clearly
set forth so that the developer cannot be sued by the client for lost profits
and other damages as a result of this control (including the possibility of
shutting down the site}.
When
is the Website Accepted?
Creating
a website is like having custom software developed. Therefore, it is best if the
agreement contains specifications as to the appearance, components and
functionality of the website. Prior to final payments being made, the client
will want to perform some acceptance tests to verify that the site was designed
correctly. It is important that specifications be spelled out in advance,
perhaps in a separate form.
What
About Website Response Time?T
here are many factors that can cause slow website response. Some are under the
control of the developer, such as how the site is designed and the technology
used on the server. Clients may require that those elements under the control of
the developer should result in pre-defined acceptable response times, while
taking into account factors that the developer cannot control.
Who
Maintains the Site? Where
the developer is maintaining the site, the client will want to know that changes
to the site that the client requests will be made in a reasonable amount of
time. Furthermore, the parties must agree on who is responsible for updating
links in a site, and for how much.
Developer
and Client Publicity.
The developer should have the right of publicity set forth in the agreement.
That is, will the developer have the right to place its name or logo and link on
the client’s site? This right can be more valuable to the developer than the
actual fee received from the client. On the other hand, who will be responsible
for notifying and indexing search engines concerning the site? Both the
developer and client prior to beginning work should understand the level of this
effort.
Will
the Developer be Responsible for Back-up? The
client will probably want the developer to regularly back up the site, so that
if the developer's server crashes, the site can quickly be installed on another
server. Furthermore, the client will want possession of a current backup copy so
that if the client decides to move to a different server, the client does not
have to wait for the developer to deliver a disk.
Who
is Liable? When a
company depends on its website for a large portion of its business, then it can
incur large losses when things do not go right. Developers can contractually
shield themselves from liability for such losses.