Website Design Disputes
Why Do You Need A Website Design And Development Agreement?
Disputes usually arise in relation to website design when either the agreement between the parties has not been drafted adequately or there is no agreement in place at all setting out the expectations and obligations of the parties. Whilst this does not preclude a claim being made by one party against the other, it does make it more difficult to prove what was actually agreed and much will be left to the courts to decipher the terms of the contract from the communications between the parties.
The objective of a website design and development agreement is to ensure that the customer gets the website that it wants by imposing an obligation on the designer to create the site according to the customer’s specifications. It is very risky to proceed without setting out in detail what the parties involved in the venture are expecting to achieve from the relationship. A clearly defined site specification gives the designer a complete picture of the customer’s requirements, ensuring that those requirements are realistic, and can be met within the timescale and for the fees agreed.
Therefore, it is essential that the parties enter into a website design and development agreement detailing all of the customer’s requirements and specifications at the outset of the project, to avoid (as far as is reasonably possible) any disputes arising in the future.
If you are already in dispute with your website designer, or a client if you are a website designer, we can help you. Call us now on 02477 981545
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Common Website Disputes
The most common website disputes that we deal with at Kumari Hart Solicitors involve the customer being dissatisfied with the quality, functionality and/or performance of the final version of the website. Or there are quality issues during the development process leading to a breakdown of the relationship between the parties. This inevitably leads to the customer refusing to make any further payments and the designer threatening to take the customer to court to recover the balance outstanding, which can equate to thousands of pounds in some cases.
In such a case the first port of call will be to review the design and development agreement to ascertain what the parties have agreed. Upon review of this we will assess whether there has been a breach of contract by either party, the extent of the breach and what the potential remedy or remedies would be.
If there is no such agreement, we will have to look at other communications between the parties such as emails, meeting notes and notes of telephone conversations detailing the customer’s requirements. However, without anything in writing this is where things become difficult as the recollection of one party may not match the recollection of the other.
What should Be Included Within A Website Design and Development Agreement?
Therefore, the first step is to ensure that there is a clear and unequivocal agreement in place; the website design and development agreement. As this is the defining document when it comes to establishing the fundamental nature of the contract between the parties, it is important that it contains the following key provisions:
- The customer’s requirements and specifications for its website in terms of functionality, performance, any visible content which the designer is to provide and any legal requirements to which the customer is subject. A clear explanation should be provided by the customer regarding the nature of its business, branding and target audience, and its reasons for creating/updating the website, so that the designer understands what may suit the customer’s stipulations.
- Timetable. The agreement should set out the key milestones such as the date for the launch of the site. Provision should also be made for the parties to review the quality of what is produced and to monitor progress, and details of any appropriate remedies should be stated, such as liquidated damages (i.e. a pre-determined amount to be paid in respect of failures or delays in performance), where sufficient quality is not being achieved or where the project timetable is no longer attainable.
- Payment may be on a fixed-fee or time-and-materials basis (or a combination of both). A fixed fee will be payable by instalments on successful completion of contractual milestones.
- Acceptance tests. The customer should ensure that it is satisfied that the website performs on the servers in accordance with the it’s functional and performance specifications and can deal with anticipated usage levels. In addition, the customer may want to conduct some pilot tests to assess user’s reactions to the site.
- Intellectual Property Rights of the site and its contents. The designer will be the first owner of the copyright and other intellectual property rights in the design of the web pages and the software unless it has executed a written transfer of such rights in favour of the customer. This quite often comes as an unpleasant surprise to customers! The customer should therefore ensure that it owns or has the right to exploit the copyright and related rights in all aspects of the web pages (including the overall design, any specially written text or graphics, and the coded version of the pages), so that it can transfer the website to another designer to complete the project where, for example, there is a dispute with the current designer.
- Termination. The parties should ensure that the circumstances in which termination of the agreement may take place are set out in detail and the consequences of termination are sufficiently covered within the agreement.
This is by no means an exhaustive list of all the issues you need to be aware of when entering into a website design and development agreement. Each case will depend very much upon the individual requirements of the customer and obligations of the designer. At Kumari Hart Solicitors we can advise upon the drafting of an agreement to ensure it meets all of your requirements. We also have experience in dealing with disputes that arise in these situations and can provide invaluable advice and assistance in resolving them.