Web design legal and website development contract issues

If you are a website designer, here are some of the web design legal and contract issues which may affect you:

Many legal disputes between website developers and their customers result from the lack of any contract specification or requirements document setting out the description, function and objectives of the proposed website. Customers often have unrealistic expectations of what they are going to get. It’s the web developer’s interest, as well as the customer’s, that this is spelled out in detail in the website design contract.

There should also be clauses which exclude or limit the website developer’s legal liability in case something goes wrong. These need to be carefully drafted to reduce the risk they will fall foul of the Unfair Contract Terms Act. Otherwise they can be struck down by a court. These exclusion or limitation clauses can be useful bargaining chips when negotiating settlement of any dispute.

By default website developers own the copyright in the design of the website. Often customers want ownership to be assigned to them. If the web designer agrees, it’s important to limit this to the client specific work (perhaps "look and feel") and to exclude third party software as well as developer tools and other elements of coding that will be reused on other websites.

Web designers often wish to include a clause entitling them to credit on the finished website.

There are many other areas to cover. These include:

acceptance testing
timetables
clear payment provisions (including perhaps termination for non-payment)
an obligation on the customer to reimburse the web designer ("indemnity") if it gets sued because the client’s content infringes someone’s intellectual property rights
whether there is to be any ongoing support or maintenance of the website and, if so, at what cost.

If you are a web design customer, here are some of the website development legal issues which may affect you:

The designer may present you with a website design / development contract in small print that looks like it’s to be quickly signed but not read or questioned. But it should be checked out.

Does the web designer’s contract say what you are getting for money? Often website design contracts don’t include a specification ie the description, function and objectives of the proposed website. Without this you would have little recourse if the designer produced something very different to what you expected.

Unless the web development contract says otherwise, the website designer keeps ownership of the copyright in the design of the website. This might only come to light at an awkward moment eg when you’re about to sell your business.

While the web developer will insist on keeping the rights to his developer tools or code which he wants to use on other websites, you should get an assignment (ie complete transfer of ownership) of the parts unique to your site eg "look and feel". If not, you should obtain an exclusive license or an undertaking that the developer will not reuse the bespoke element for other customers.

Despite their best efforts, website developers sometimes run out of steam. Ensure that the contract links payment to achievement of milestones by the web designer. Tie the final substantial payment to acceptance testing of the main functionality of the site.

Whoever maintains the site will need access to the source code and it may be necessary to put it into escrow (ie safekeeping by a third party) in case the developer becomes insolvent and you’re left high and dry.

Do you control your domain name? We encounter many domain name disputes where website developers register domains in their own name and refuse to hand them in certain circumstances eg when there is an argument about fees.

The many other areas to consider include:

assurances concerning site quality eg consistent cross-browser appearance and performance
extent of webstats
protection of your confidentiality
an obligation on the designer to reimburse you ("indemnity") if you get sued because the developer has infringed someone else’s intellectual property rights
whether there is to be any ongoing support or maintenance of the website and, if so, at what cost
portability of the website

We can advise on web design legal issues. For a free initial chat and more information about website development contracts, call Adam Taylor of Adlex Solicitors on +44 (0) 207 317 8404 or email.