Technology &
Internet Law

Tips for Instructing Website Designers & Developers

A reputable designer should have a set of standard terms and you should check they are fair and contain some basic provisions:

• Check that you are getting a fixed-price fee deal unless you want to be signing an opened ended cheque;
• If you have a fixed price contract with a specification of what you will get for your money, also make sure you agree how the designer will charge for extras. Agreeing a specification sets boundaries and makes sure that you do not pay too much and yet the designer can fairly get paid for extra work not agreed at the outset;
• A specification of what will be done for you should be agreed in simple lay terms (e.g. "the ecommerce facility will operate so that it rejects orders when the goods are out of stock"). A specification in technical jargon or involving a complex site should otherwise be reviewed by someone with the technical knowledge to be able to check the resultant site will appear and function in the way it should. With larger projects it is sensible to have the specification prepared for you by a suitably qualified and experienced IT consultant;
• Agree what service standards you should reasonably expect - how often you will get updates, when the project milestones will each be completed, whether time really is of the essence (leaving you entitled to withdraw if milestones are not achieved (not to be used unless it is absolutely necessary and if used, build in reasonable time margins to be fair to the designer)), etc.;
• You may well also want to agree on-going support and maintenance for after the site is up and running, including response times and so on. If so, you should negotiate detailed written terms for this service;
• The designer should warrant that the site will function on the main browsers (e.g. Microsoft Explorer Version 4.0 upwards and Netscape Version 4.0 upwards) although you have to accept that designers cannot guarantee "functionality" on all browsers nor things like visual appearance being consistent on all systems;
• Bearing in mind that unless you agree to the contrary copyright in all material produced by the designer will remain his/her copyright and that you might want to be free to upgrade the site (either yourself or using another company in future), you should consider agreeing that you will get copyright. Expect to pay a little more for this (not a lot) but it is well worth it. Get the designer to waive his/her moral rights (the right to be credited with the work and not to have it subjected to derogatory treatment). Ideally, agree that copyright and all relevant intellectual property rights will pass to you automatically as the work is created. The designer may say that it will only pass when all money due under the contract has been paid. Whilst that is a sensible thing from a designer's point of view and may appear fair, too often you and the designer may fall out leaving you unhappy and wanting to withhold a little money to cover genuine losses and if you do so, no matter how fairly, you never acquire copyright;
• For substantial projects where it is likely that you will be paying in instalments by reference to milestones, make sure that all rights in material produced up to the relevant milestone pass to your company when the invoice for that particular instalment has been paid.  This way, if you later fall out on subsequent problems over the web site, you can at least salvage a significant part of the site and have someone else work on it if necessary.
• Also get a warranty that the designer own the copyright in all material he/she produces and that you will have a perpetual royalty-free licence to use any material which may not be own by the designer and that all material may be used by you for any purpose whatsoever. The warranty should also confirm that the material is free of all third party intellectual property rights. It is not unheard of for a disreputable designer to simply copy element of other sites or even the entire look and feel of a site including software.  Again, for substantial projects, specify what third party software will be used, when it will be included in the development (within particular milestones) so that the licence applies effective from payment of the invoice for the particular milestone.

Another desired warranty is that the site will function in accordance with the specification (subject to agreed qualifications regarding different "platforms" used);

All warranties should all be backed up by an indemnity in your favour (stated to be "on a full indemnity basis") against any costs claims and liabilities arising from any breach of warranty;

Make sure the designer has to supply you with written consent from any company to which he/she creates a link before linking to another site.

Last but not least, you need to weigh up the ability of the designer to compensate you for breaches of contract.  As a general rule, you should insist on insurance, for substantial projects, you should inspect the insurance to make sure it covers what you need it to cover to protect your interests in the event of a problem occurring.

Most designers are decent people trying to earn a living but it is important that both parties understand what is expected of them. Each case differs and there may be good reason why some of these terms cannot be agreed by the designer but you should take advice at that stage. As this article is general by its nature it should not be taken as advice and is not an exhaustive list of issues to consider, so you must not rely on it without taking independent advice.

NEED TO KNOW MORE?

For further information on ecommerce, contact Maitland Kalton or call us on +44 (0)20 7278 1817

Kaltons Solicitors, Suite 302, Spitfire Studios, 63-71 Collier Street, London, N1 9BE. Telephone +44 (0)20 7278 1817; Fax: +44 (0)207 278 1835.

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