Website Development Contracts

Websites

Following the rapid development of the internet and the world wide web over the last 20 years or so, websites have become an essential part of most serious businesses. A website is now often the first port of call for prospective clients or consumers when searching for new products or services. Comfort and ease of access now save consumers a great deal of time, for example, when shopping for books or CDs. Comparing prices or locating hard to find items has become a simple task, and consumers can now buy things from Australia or Japan with a few clicks of a mouse and some credit or debit card information. All this is possible through the availability of websites, and all forward-thinking businesses, and indeed individuals, will fully appreciate that having an attractive, easy to navigate website could play a pivotal role in gaining them an advantage over their competitors. Having a suitable domain name, and writing the website in a suitable language are key issues, but there are many facets to a website that should be dealt with as far as a contract for a website between a client and a developer is concerned. Some of these facets will now be addressed.

Website specification

Although individual requirements for a website will vary dramatically, the website developer will usually be responsible for the technical aspects of a website, such as formatting and inserting links. The client will usually provide the content, that is, information which the website should contain, such as text or pictures. All of this should be detailed in the specification, which should provide a more definite description of the developer’s contractual obligations. The specification might include some of the following features:

Browser compatibility – will the website be displayed correctly in different browsers?
Hosting and bandwidth – where will the website be hosted, and who by?
Search engines – what terms will be reserved to increase the website’s listing in search results?
Security – how will customers’ personal data be protected and will data encryption be of a sufficient standard?
Maintenance – how will improvements, modifications and other developments be implemented to keep abreast of technological change, and who has responsibility for these?

This list is far from exhaustive, but gives an idea of some of the issues which ought to be expressed clearly in a contractual specification. Additionally, the specification should also have measures in place to deal with future legal changes, such as changes to consumer protection law or data protection.

Terms in a website development contract

A website development contract should contain express terms setting out the client’s and the developer’s rights and obligations. Ownership of intellectual property rights in the content should be clearly specified, along with warranties, liability for defects, dispute resolution clauses, and so on. Statutory terms in the Supply of Goods and Services Act 1982 will also be implied, unless excluded by the parties in line with the Unfair Contract Terms Act 1977, though this is unlikely. A website developer will probably be under an implied duty to repair any errors which come to light after the website and its content have been accepted by the client (see, for example, Saphena Computing Ltd v Allied Collection Agencies Ltd [1995] for an analogous approach regarding software development contracts). The developer will also be under an implied duty not to use material that infringes third party intellectual property rights (see Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2003]).

‘Feature-creep’

Brief mention ought to be given to the phenomenon known as feature-creep. This is where during the development of a website the client wants more or different features to be added. Consequently, it is essential for a website development contract to contain provisions for such an eventuality. The impact of modifications should be tested first to ensure that there are no problems, and the modifications should be precisely defined. Good practice is to keep a record of all work done, which will also assist in clarifying costs. Failing to adequately specify what precise work is to be done and for what cost could ultimately prove financially catastrophic (see Psychometric Services Ltd v Merant International Ltd [2002]).

Website maintenance

Websites generally require ongoing maintenance. They frequently contain errors in the source code or with HTML links. Additionally, information such as prices will have to be updated from time to time. Maintenance will usually be dealt with in a separate maintenance agreement. If there is no agreement, the website developer will be under an implied obligation to correct errors which they are responsible for within a reasonable time. Since reasonableness is difficult to determine, it is better to have maintenance terms defined expressly in a contract. The contract could cover matters such as upgrading the website and its underlying software, redesigns, and modifying content.

Domain name

The developer may renew the domain name, but the client may want to ensure that this is done timely so that the domain name isn’t lost. Alternatively, the client can register and renew the domain name itself, which should hopefully avoid any problems. Domain names should be chosen carefully, bearing in mind potential future expansion or diversification (see World Wide Fund for Nature v World Wrestling Entertainment Federation Inc [2002] regarding the domain name www.wwf.com).


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