This month InternetLitigators has been presented with several issues involving website development and design. We represent both web designers and webmasters regularly so our experience and comments on this issue are intended to address both sides of this deal.

Whether you are a Designer or a Webmaster there are a few things that you should always do with regard to your web design agreement.

Put it in Writing

This may seem obvious but we have been presented with many situations where work was done with out any written agreement in place at all or where such an agreement may have existed but was not signed. There are many terms that should be addressed in advance of any work being performed and the written agreement is the best place to do so in order to avoid conflicts and misunderstandings in the future. The process of negotiating the agreement is an excellent way to ensure that the parties each understand what is being promised. Once things go bad, reaching any agreement to terms becomes far more difficult.

Be sure that the agreement is signed by both parties to the agreement. Keep a copy of the agreement for your reference in the event that you should ever need to refer to it during the course of the project or at any time afterwards.

Read it, Understand it, Negotiate it and THEN sign it.

First of all one should understand that it is typical for a designer to provide the form of agreement for web design services. Typically, the designer will have an attorney draft an agreement to specifically address the services that they provide and the terms that they require. As would be expected, when a web designer client hires an attorney to prepare such an agreement, the terms that are included will most likely favor the client, sometimes strongly and sometimes unfairly.

This is particularly true where the agreement is framed as an on-line click through type agreement and as such it is very likely that in most instances it will be looked at with nothing more than a passing glance. An astonishingly high number of agreements we have seen, particularly the ones that appear somewhat informal, are filled with terms that if you as a client read and understood them should send you running.

Therefore, while it may seem to be an obvious point to remind readers to be certain to read any contract before you sign it – it is necessary because it is not uncommon, particularly for smaller projects to have people tell us that they simply didn’t do so and instead relied upon what they were told by the designer. Unfortunately, this is a poor practice for a number of reasons not the least of which is the fact that it is very common for design agreements to contain a standard provision that says (in not so certain terms) that you agree that anything that you have been told in negotiations by the designer is irrelevant to your agreement and that you agree that you are not relying upon any of the statements made to you by the designer and that the written agreement terms are all that matters.

By way of illustration, we recently were provided with an agreement filled with unfair (and in one instance unlawful) provisions. We made numerous significant changes to the agreement for our webmaster client making the agreement fair and forcing the designer to take responsibility for his work and certain problems that could be created by the designer with his work on this particular project. We had essentially created an entirely new agreement that ran in favor of our client. The client provided the agreement back to the designer and we honestly expected the designer to flatly refuse the new terms. To our surprise, the designer signed the agreement including all of our changes – it seemed as though he apparently didn’t bother reading it!

The point is that where there is a term in an agreement that you do not like, do not be afraid to change it. Remember that you are the customer and the designer needs your business. Be certain that you understand the explanation. If the explanation does not make sense do not sign the agreement. If the designer offers an explanation of the term, put it in the agreement or at the very least ask that it be put in another writing.

As a Designer, if a customer makes changes to your standard agreement make sure that you understand the changes and their effect upon the balance of the document before you agree to the changes. It is much better to learn of a basic disagreement in the initial stage before any work is commenced than it is to learn of any disagreement as to contractual terms later.

For Designers or Webmasters, where there is any term that you do not understand hire an Internet attorney to look over the agreement, explain the effect of the term and advise you of any particular concerns.

There are many issues that should be covered in any web design agreement. The issues that should be addressed depend upon the nature of the work to be performed and should be addressed to any specific situation individually. Some important issues to consider for each side of the deal are as follows:

ISSUES FOR DESIGNERS

1 – Payment Terms

Make sure that they are perfectly clear as to what must be paid when and what happens if the payment is not made. Consider requiring payments in stages of completion of the project. Consider conditioning your obligation to provide deliverables upon final payment.

2 – Deliverables

Consider utilizing a development site where you remain in control of the files but your clients can log in and see the progress of your work. Consider the use of php or other server side code to protect any pre-mature copying of your work. Consider imbedding your company name into the files until they are complete.

3 – Client Participation

Make clear what you expect to receive from your client and when. Condition your obligations upon the completion of the client obligations. If your client will be providing copy, your final deliverable dates should be based upon the date that you receive the information that you need. Confirm the date of agreement, receipt of materials and completion in writing.

4 – Copyright

Consider an agreement that any materials provided by the client are provided with all necessary rights to use them. Consider a strong indemnity provision against any third party claim of any lack of such right. Language such as “work for hire” can drastically change the nature of the rights vested in either party. Consult legal counsel in relation to any language that you do not understand.

5 – Arbitration

Consider an arbitration provision that allows any disputes to be handled without the expense and inconvenience of civil litigation.

ISSUES FOR WEBMASTERS

1 – Pay Special Attention to the Payment Terms

Pay special attention to the payment terms. The services provided can be limited, for example, to a number of hours or a number of pages and they can authorize the designer to perform additional work OVER AND ABOVE THE CONTRACT PRICE and bill you for it. Be certain that you understand EXACTLY what the agreement is going to cost you when all is said and done. Any extra work should be subject to your approval only.

2 – Scope of the Assignment

Be certain that your agreement clearly and accurately states what it is that you expect from the designer. Consider specific reference to the number of pages, any special coding (flash etc), any other services that you expect to be included, any promises that have been made by the designer.

3 – Completion Date

Be certain that there is a clearly stated date that you may expect the work to be completed. Watch out for complicated terms that allow the designer to delay the completion indefinitely.

4 – Final Approval

Make sure that before your final payment is due that you have the opportunity to give final approval of the website. Ideally this approval should be given throughout or in stages so that you can remain involved with the project. If the design or any component thereof does not meet your approval PROMPTLY notify the designer of your exact concerns. Be certain that there is no penalty to you or requirement to pay until the site meets your approval and functions the way it is supposed to on your selected web hosting service provider or server.

5 – Copyright Issues

This can be a complicated issue. In general terms, you want to be certain that you own the site that is completed. Rights less than ownership including a license to use the site are limited rights and may not allow you to use the site or all of its components the way that you want and could subject you to additional fees or costs. An unfair license agreement could force you into an ongoing relationship with the designer. Language such as “work for hire” can drastically change the nature of the rights vested in either party. Seek legal advice where you are not absolutely clear as to your specific situation.

About: Jeffrey A. Cohen is a partner in the El Segundo, California office of Cohen & Richardson, LLP. Mr. Cohen can be reached at JCohen [at] InternetLitigators.com. The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information.