Web Design Agreements

By Jeffrey Cohen

This month Internet Litigators has been presented with several issues involving website development and design. We represent both designers and webmasters regularly so our experience and comments on this issue are intended to address both sides of this deal. While the examples here are presented from the website owner's point of view, a good agreement protects both parties.

 
Put it in Writing
 
 This may seem obvious but we have been presented with many situations when work was done without a written agreement, or an agreement existed but was never signed. The process of negotiating the agreement is an excellent way to ensure that all parties involved understand what is being promised.
 
 Be sure that the agreement is signed by all parties. Keep a copy for your reference in the event that you should ever need it during the course of the project or at any time afterwards.
 
 
Read, Understand, Negotiate and THEN Sign
 
 Typically, the designer provides the form of agreement for Web
 design services, usually drafted by an attorney. As would be expected, when a designer hires an attorney to prepare such an agreement, the terms will most likely favor the designer — sometimes strongly and sometimes unfairly. An astonishingly high number of agreements we have seen, particularly those that appear somewhat informal are filled with terms that should send a website owner running.
 
 It is not uncommon — particularly for smaller projects — to have people tell us that they simply didn’t read the agreement and instead relied upon what they were told by the designer. This is a poor practice for a number of reasons, not the least of which is the fact that many design agreements contain a standard provision stating that anything you have been told in negotiations by the designer is irrelevant — 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 significant changes for our webmaster client, making the agreement fair and forcing the designer to take responsibility for his work. We expected the designer to flatly refuse the new terms but, to our surprise the designer signed the agreement including all of our changes — it seemed as though he didn’t bother reading it!
 
 The point is that when there is a term in an agreement that you do not like, don’t be afraid to make a change. Remember that you are the customer and the designer needs your business. If a sticking point arises, 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 ask that it be put in another writing.
 
 Below are five important issues to consider for every webmaster entering into a design agreement:
 
 
Issues For Web Professionals
 
 1 – The Payment Terms
 Pay special attention to the payment terms. The services provided can be limited, for example, to a number of hours or pages. The terms can authorize the designer to perform additional work over and above the contract price and bill you for it. 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 you expect from the designer. Consider specific references to the number of pages, any special coding (flash etc), services that you expect to be included and any promises that have been made by the designer.
 
 3 – Completion Date
 Define a clearly stated completion date. Watch out for complicated terms that allow the designer to delay completion indefinitely.
 
 4 – Final Approval
 Make sure that before final payment is due that you have the opportunity for final approval of the website. Ideally, this approval should be given throughout or in stages so that you 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 hosting provider or server.
 
 5 – Copyright
 This can be a complicated issue. In general terms, you want to be certain that you own the completed site. 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 when you are not absolutely clear as to your specific situation.
 
 

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Read more from Jeff Cohen on Web Design Agreements for Web Designers

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 About the Author: Jeffrey Cohen is a Partner in the Law offices of Chapman, Glucksman & Dean in Los Angeles, California. He chairs the firm’s Internet & Technology Practice Group and represents Internet companies nationwide on all business law issues. He is also the director of InternetLitigators. This article neither constitutes legal advice nor creates an attorney client privilege with the reader.