Nowadays most businesses use the World wide web in some manner to perform their everyday transactions.  For example, a lot of companies trade by selling their products and / or services via their own website.  Whist in fact trading on the web can raise a multitude of legal problems, in this article we are particularly searching at some of the issues which arise and how to steer clear of them when a third party developer is commissioned to design and develop a website. Development of a web site If a enterprise has sufficient IT capability it perhaps able to develop it is own internet site in-home.  Nevertheless, in most circumstances, companies look to instruct an external specialist to generate an world wide web presence. 

If a third party developer is to be utilised, it is vital that a written contract is in place which governs the terms of the instruction.  Several developers will have their own terms and conditions which, of course, will be biased in their favour.  For that reason, it is quite critical prior to commissioning a consultant to develop a site that the terms and conditions upon which you contract are reviewed really carefully.  Outlined below are some of the widespread pitfalls in commissioning the development of a internet site and how finest to stay away from them:

&gt Ownership of intellectual property 

Copyright is a form of intellectual property and will subsist in site content and the underlying website programming. To have complete freedom to do whatever you like with your web site and its content you will need to own that copyright. Under UK copyright law, the author of a work is the owner of the copyright subsisting in that function. Even so, if the author of the copyright function is an employee, the employer is the owner of the copyright.  Consequently, if it is your employee who has created a internet site, the problem of ownership of copyright does not arise.  However, where an external consultant is commissioned to develop a website, unless otherwise contracted, it is the consultant who will own the copyright in the function.  In order to make certain that you own all the copyright, the contract upon which the developer is commissioned ought to contain a provision assigning all copyright and other intellectual property subsisting in the web site and its contents to you. 

Ultimately the ideal position to be in is to own all the copyright and other intellectual property in the website and its content.  However, in reality not all site developers will agree to this, particularly if they have included particular code underlying the website which they will want to re-use in the style of other websites or if the web site incorporates third party software. In those circumstances, a much less satisfactory option is for the developer to assign all intellectual property rights in the unique look and feel of the internet site to you and to grant you an irrevocable non-exclusive licence to use the other code.

It is advisable to include a provision in the contract which ensures that you can assign all your rights in the web site to third parties. This could be appropriate if you are taking into consideration the sale of your enterprise sometime in the future.  You ought to also make certain that your intellectual property rights in any supplies supplied to the developer are protected and that the developer is under obligations of confidentiality.

It is also a good notion to ensure that the contract contains a warranty which gives that all intellectual property subsisting in the internet site and its content will not infringe the rights of any third party. You ought to also ask for an indemnity from the developer that will cover all your expenses in the event that your use of the web site results in you obtaining sued for infringement of a third party’s intellectual property rights. 

&gt Domain Name 

It is crucial that you own the domain name at which your web site will be situated.  Usually it is the web site developer who registers your domain name and they may possibly register it in their name instead of yours.  You should make certain that the domain name is registered in your name and that the contract clearly states that you own the domain name.

&gt Agree a specification

Usually disputes arise since the internet site developers fail to meet the customer’s expectations.  For instance, problems often arise in relation to the time frame with which the website was delivered or the website does not look, function or contain what is required and/or expected.  It is therefore crucial that a detailed specification for the work to be carried out is agreed prior to commencement of the function so that each party knows the requirements and objectives. 

&gt Payment 

Yet another obvious cause of dispute is in relation to payment. Contemplate if payment is on a fixed fee basis or if it is based on time spent and supplies.  Problems can arise if the developer considers certain work falls outside any figure which was originally estimated or agreed.  1 way to support avoiding problems regarding payment is to ensure that the contract gives for staged payments which are linked to achieving certain milestones within particular time scales and acceptance testing procedures.  Before the last payment is produced there ought to be a final acceptance which ensures the web site meets with the agreed specification.

&gt Hosting, support and maintenance 

For a website to be accessible via the Web it need to be hosted on a server.  For the majority of businesses, their internet sites are hosted by a third party service provider, despite the fact that some companies can host their own website.  In addition, companies could also contract with a third party to maintain and supply support for their site.

If the web site developer is to host, maintain and/or support your site you will require to contemplate the basis upon which those specific services are to be provided and provisions dealing with these extra services can be included in the site development contract. Nonetheless, you can also enter into separate contracts dealing specifically with the provision of those services.

So far as hosting your site, it is crucial to make sure that your provider contracts to offer your needed levels of service.  Of particular importance is the requirement for server uptimes and the provision of sufficient bandwidth to successfully operate your web site. 

You need to also guarantee that the contract offers that if you choose to alter your provider you are able to move your internet site.

In order to protect your position, the contract should provide you with access to the source code for the internet site.  This can be completed by offering that the developer puts the source code in escrow to be held by a third party.  An escrow agreement can offer for the release of the code to you in certain circumstances such as in the event of a dispute arising or if the developer goes out of business.

&gt Conclusion 

As with most commercial transactions, when commissioning the development of a internet site it is critical to get a excellent contract in location.  Don’t just accept the site developer’s terms and conditions.  Take time to review and negotiate the terms under which the web site is becoming developed and supplied to you. 

It is advisable to acquire guidance from a solicitor specialising in information technologies – in the long run this guidance could save you a lot of wasted time and income. 

 

By Kirsten Toft

 

Copyright Assignment