One of the most important parts of any business in 2019 is your website. Even if you do not directly sell products or services through your website, your clients or customers will likely take a look at it before deciding whether or not they want to go with your company. Whether it is a state of the art e-commerce site with integrated applications and media or a simple statement about your company, you will encounter legal issues that need to be addressed through contracts.
This blog post will consider the legal issues that arise when setting up and operating your website, including the specific contracts you may need to draft. Generally speaking, we look at the contract from the perspective of your company hiring the design team. For our designer friends, you will want to look at things from a different perspective.
Website Design Agreements
The first thing you have to figure out is how you are going to design and structure your website. There are many great web design professionals out there to choose from. To make sure that you are both on the same page, a well-designed contract up front will help to avoid future problems.
Your web design contract should spell out, in detail, how your website is going to function and perform according to your unique requirements. Other items to consider include your requirements for any content on the site. Your website will likely need to comply with legal requirements – for example, in California many websites have to comply with access requirements under disability laws as well as data privacy laws, e-commerce laws, and cybersecurity laws. By addressing these issues at the outset, you can avert problems down the road with your designers.
Another thing to think about is how you want to convey your brand and your image on your website. You should explain to your web design team what kind of business you are in, how you see your brand, and why you are creating your website. And of course, it is essential to agree on a budget! Complex website costs money and it helps to consider the complexity of the website together: determine the types of graphics needed, plug-ins, and other website components (from a practical perspective, you will also need to consider your audience and whether they will have the bandwidth needed to display those fancy graphics you spent so much money on!). Designers appreciate the ability to accurately plan the scope of time and materials that will be needed to complete the project – so yours will thank you for being detailed. No one, be it a construction contractor or web designer, appreciates gratuitous change orders.
By now you’ve probably seen this on at least half the websites you encounter, especially the ones that may be used by citizens of the European Union: the (in)famous cookie consent banner. Most of us click through these banners without thinking twice, similar to how we don’t read the small print on our cell phone contracts.
Time and Money
Set a timetable with key milestones and make sure your contract spells it out. You will need to build in requirements for reviewing the progress and give yourself outs if the designer is not performing up to par. One thing to consider: “liquidated damages.” It’s not requiring that they buy you beer or water to make up for lost time. It’s an amount of money that you would get paid if your milestones are not met.
For payment, you can choose fixed-fee or time-and-materials basis. Sometimes a hybrid of both works too. You as a company owner will probably prefer a fixed fee. The designer will prefer the opposite because it is difficult for the designer to anticipate all costs in advance (and they like up front deposits). Spelling out deliverables, milestones, and timelines (see above) can help alleviate these concerns for the designer.You will also want to consider how you will be paid, at what intervals, and a method of dispute resolution for disputed amounts owed.
You’ll want to know your website actually works and that it will not get overloaded when server traffic gets busy. The best way to do that is to spell out in the contract how, why and when the testing will occur. While it may be tempting to conduct your own tests, we have found in our experience that it is more efficient to allow the designer to keep a degree of control over the testing. And testing goes two ways – you not only want to make sure your website works, but also that it is safe from cyber attack.
Make Sure You Own Your Site When it Is Done!!
WE SEE THIS WAY TOO OFTEN!! If you are not careful with your contract, or you accept your web designer’s contract as is, you could lose your ownership rights to some or all of your website. We know it sounds crazy but it’s true. Often, if you do not have an agreement in place, your designer, not your company, will own the copyright and other intellectual property in the website. You need to have your contract spell out that your company, not the designer owns these rights and that the designer assigns any and all rights to you (to the extent feasible). This might be the most important reason why you need a good contract. You also need to make sure that your designer delivers an electronic copy of your website offline for use if you need it. And finally, for complex projects, you will want to make sure that the source code is signed over along with the other items we just mentioned.
Sometimes your designer will use someone else’s intellectual property that the designer has licensed from someone else, or the designer will use their own proprietary tech. In those cases, you need to get a license from the designer and have language in your contract where that license is as broad as humanly possible and the designer agrees to take all necessary steps to protect your right to use licensed content or tech.
What Else Should You Address in Your Contract:
- How and why would the contract be terminated?
- How do you ensure that nothing illegal or obscene ends up on the website?
- What are the designer’s ongoing obligations after completion (think maintenance and tech support)?
- How do you make sure that any content on the website is properly licensed? And exactly what kind of license do you want? How do hold the designer accountable if they goof and put unlicensed content on the website?
- Where do you put your content and how does it display?
- What about updates and bug fixes? For how long is the designer on the hook? Will it cost extra?
- When is this dang website finally going to be done?? 🙂
This list could probably go on for a while, but you get the idea. Consider these issues up front and work with your designer to hash these things out before you get started. Do so and you’ll end up with a great website and a happy designer! Unless your designer just sucks at designing – we can’t help you with that (we hear Yelp is good).