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COMMUNET Home

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COMMUNET  September 1996, Week 2

COMMUNET September 1996, Week 2

Subject:

FYI: suggestions for commercial website developer/client contract (foward)

From:

[log in to unmask]

Date:

Tue, 10 Sep 1996 22:02:08 -0500 (EST)

Content-Type:

TEXT/PLAIN

Parts/Attachments:

Parts/Attachments

TEXT/PLAIN (258 lines)

From:	IN%"[log in to unmask]"  9-SEP-1996 23:10:19.56
To:	IN%"[log in to unmask]"
CC:	
Subj:	Net Results, 10 Sept. 96 (2)

Return-path: <[log in to unmask]>
Received: from it.silverquick.com (mail.omegaweb.co.uk)
Date: Mon, 09 Sep 1996 22:38:29 -0700
From: [log in to unmask]
Subject: Net Results, 10 Sept. 96 (2)


***** 3) PUTTING IT IN WRITING: WEB SITE CONTRACTS AND LEGAL ISSUES

     Many Net Results readers either are in the business of creating 
Web sites or are potential buyers of Web development services. So I 
thought you might appreciate this article, republished with permission 
from The Computer Law Observer, a free e-zine available by e-mail.


============================================================
August, 1996     The Computer Law Observer     Issue No. 19           
============================================================
The Computer Law Observer is distributed monthly for free by
Challenge Communications. To subscribe or unsubscribe, simply 
send an e-mail request to [log in to unmask] Re-posting is 
prohibited without permission. Copyright 1996 by Challenge 
Communications.
------------------------------------------------------------

 ++++++++++++++++++++++++++++++++++++++++++++++
               UNDER CONSTRUCTION
        Negotiating Website Agreements
 ++++++++++++++++++++++++++++++++++++++++++++++
            by William S. Galkin, Esq.
                (biography at end)

     At one extreme of the cyber-spectrum, a website can serve as a 
mere low cost billboard -- hoping to catch the attention of passersby. 
At the other, a website can be a multi-dimensional business outlet, 
capable of servicing numerous customers with a great variety of goods 
and services. Most websites will fall somewhere in the great middle.

     There are many issues that website developers and their clients 
might want to consider when negotiating a website development 
agreement. A number of issues are discussed below. For the purpose of 
this article, it is assumed that the developer will also provide the 
server for housing the website. 

     How concerned the parties should be regarding any particular issue 
will often depend upon where on the spectrum a website lies. Some of 
the issues discussed will be of more concern to developers -- and 
others to their clients. However, during any negotiation, it is useful 
for each side to understand the other's concerns. At the end of the 
day, a good agreement is one that anticipates and resolves disputes -- 
before they arise.

*** OWNERSHIP

     A website is composed primarily of text, programming codes and 
graphics. Who owns the copyrightable work product of the developer? 
Most developers will have the status of independent contractors. Under 
U.S. copyright law, independent contractors are the owners of 
copyrightable work they create, unless there is a written "work-for-
hire" agreement. The developer might want to reuse some or all of the 
elements in future projects, and therefore, would want to retain the 
ownership.

     On the other hand, the client might want ownership to prevent such 
reuse. Additionally, the developer might be using graphics created 
prior to the current project. In such a case, a "work-for-hire" 
agreement would not be enough to place ownership of such graphics with 
the client. Rather, the developer would need to transfer the rights 
through an assignment agreement.

*** CONTROL

     Often, the developer will house the website on the developer's 
server. The developer will thereby be maintaining the site and will be 
responsible for adding or changing the content of the site, when 
requested by the client. By doing so, the developer could be accused of 
assisting the client in the perpetuation of a crime or causing damage 
to a third party, such as where there is copyright infringement, 
defamation, or obscenity. Therefore, the developer will want the right 
to delete or refuse to add certain problematic content. 

     Additionally, if the client is not paying the maintenance fees, 
the developer will want the right to close down the site. These rights 
need to be clearly spelled out so that the developer cannot be sued by 
the client for lost profits and other damages when exercising these 
rights. Additionally, a developer cannot always be aware of the 
potential liability posed by certain content, therefore the developer 
might also want the client to indemnify the developer against any such 
liability.

*** ACCEPTANCE

     Creating a website is like having custom software developed. 
Therefore, it is best if the agreement contains specifications as to 
the desired appearance, components and functionality of the website. 
Prior to final payments being made, the client will want to perform 
some acceptance tests to verify that the site was designed correctly. 
The process whereby the developer and client agree on the specifics of 
the acceptance testing usually serves to educate both parties as to 
what the client expects and what the developer is capable of 
delivering.

*** RESPONSE TIME

     When a web page opens slowly, it has the same effect as slow 
service in a restaurant -- customers will not come back. There are many 
factors that can cause this slow response. Some are under the control 
of the developer, such as how the site is designed and the technology 
used on the server. Clients can require that those elements under the 
control of the developer should result in pre-defined acceptable 
response times, while taking into account factors that the developer 
cannot control.

*** MAINTENANCE

     Where the developer is maintaining the site, the client will want 
to know that changes to the site that the client requests will be made 
in a reasonable amount of time. Furthermore, links in a site, which 
will bring a visitor to other relevant sites, need to be reviewed and 
updated otherwise they become dead. Finding a lot of dead links at a 
site is like going to a restaurant and finding that they are all out of 
a lot of things you want to order. The parties need to agree who is 
responsible for keeping the links current.

*** CLIENT PUBLICITY

     After a developer works hard and creates a great new site, it will 
usually want to place a link on at least the home page identifying the 
developer in order to attract new clients. What if the client says that 
it does not want the developer's name to appear anywhere on the site? 
To avoid this problem, the developer should have this right of 
publicity set forth in the agreement. This right can be more valuable 
to the developer than the actual fee received from the client.

*** DEVELOPER PUBLICITY

     Putting up a website does not mean anything unless people know it 
is there. Various levels of effort can be expended to publicize a new 
website. For instance, there can be minimal effort exerted merely 
notifying search engines of the new website. On the other hand, 
substantial time can go into making sure that the site is indexed on 
the search engines in a manner likely to be found by the desired 
customers. Clients should understand what level of publicity, if any, 
the developer is providing.

*** BACKUP

     The client will want to make sure that the developer is regularly 
backing up the site, so that if the developer's server crashes, the 
site can quickly be installed on another server. Furthermore, the 
client will want possession of a current backup copy so that if the 
client decides to move to a different server, the client does not have 
to wait for the developer to deliver a disk. This is especially 
important where the reason for the client changing servers is as a 
result of a dispute with the developer. 

*** NON-COMPETITION AND CONFIDENTIALITY

     In some instances, a developer may have earned a reputation for 
developing websites for a particular industry. In such a case, a client 
knows that the developer might create a site for one of the client's 
competitors. In other cases, a client might be introducing the 
developer to a new industry. In such a case, the client might want to 
restrict the developer for a reasonable amount of time from creating 
sites for the client's competitors. This can be accomplished through 
non-competition and confidentiality provisions.

*** SOLICITING EMPLOYEES

     In the course of a long and expensive project, it might occur to a 
client to simply terminate the development agreement and hire away one 
of the developer's key employees to complete the work. Developers can 
contractually restrict the client from doing so.

*** LIABILITY

     When a company depends on its website for a large portion of its 
business, then it can incur large losses when things do not go right. 
Developers can contractually shield themselves from liability for such 
losses. 

*** LAW & JURISDICTION

     Cyberspace poses problems for courts to decide which state law to 
apply and in which state a party can be sued. To avoid spending a lot 
of time and money resolving these issues, the parties should resolve 
these issues in advance in the agreement.

     Not all issues can be anticipated and covered in a website 
development agreement, especially given the speed at which the 
technology is changing. Nevertheless, both parties are best served when 
important issues are resolved early on. 


ABOUT THE AUTHOR: 

Mr. Galkin can be reached for comments or questions 
about the topic discussed in this article as follows: 
  E- MAIL:   [log in to unmask]
  TELEPHONE: 410-356-8853/FAX:410-356-8804
  MAIL:      10451 Mill Run Circle, Suite 400
             Owings Mills, Maryland 21117.

     Mr. Galkin is an attorney in private practice. He is also the 
adjunct professor of Computer Law at the University of Maryland School 
of Law. He is a graduate of New York University School of Law and has 
concentrated his private practice on intellectual property, computer 
and technology law issues since 1986. He represents small startup, mid-
sized and large companies, across the U.S. and internationally, dealing 
with a wide range of legal issues associated with computers and 
technology, such as developing, marketing and protecting software, 
purchasing and selling complex computer systems, launching and 
operating a variety of online business ventures, and trademark and 
copyright issues. 

[HMK deleted Rosetta Prone story for forward]

If someone else wants to receive "Net Results," have
them send a message to:
[log in to unmask]
In the body of the message, they should type:
join abnews <e-mail address here>

If you want to stop receiving "Net Results," send a 
message to:
[log in to unmask]
In the body of the message type:
leave abnews <your e-mail address>

------------------------------

Al Bredenberg Creative Services provides consultation, 
concept, copy, and design for advertising, the Internet, 
and direct marketing. Al Bredenberg is on the World-
Wide Web at http://www.copywriter.com and can 
be reached by e-mail at [log in to unmask]

SilverQuick Communications provides e-mail 
autoresponders, electronic newsletters, and other 
e-mail services. To find out how SilverQuick can help 
you get the word out, send any message to 
[log in to unmask] or visit 
http://www.silverquick.com on the Web.

Copyright 1996, Alfred R. Bredenberg
********************* [log in to unmask] ***********************
               Al Bredenberg Creative Services
 Direct Mail - Ads - Net Marketing - Consultation - BTB & Tech
   Author, "The Small Business Guide to Internet Marketing"
  For free excerpt, send any message to [log in to unmask]
***************** http://www.copywriter.com *******************

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