DRAFTING A WEBSITE DEVELOPMENT AGREEMENT

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Introduction: The number of websites are increasing day by day in various fields of use like in corporate, Government, educational institutions etc. The popularity of World Wide Web (www.) has grown up since its day of inception and internet has become an essential part in the life of common people. The websites developed by various service providers make it user friendly so that it could be accessed by any basic computer literate individual. Website development involve highly technical knowledge and the Website developers try to develop user friendly website in such a manner so that the readers can get maximum information about a particular section of the organisation who own the concerned website. A website cannot be defined so easily in a continually changing internet environment; however, Susan A. Dunn provides a definition of website as follows:

“A website is a collection of files stored on a file server that is accessible to users of the World Wide Web, a network of servers and information available on the Internet. This collection of files can include HTML (Hypertext Mark-up Language) descriptions of visible pages, scripts to generate HTML pages on the fly, supporting server-based software and data files and, most recently, downloadable programs to execute on the user's computer”.

Websites have different functions and can be used in various manners which entirely depend on the vision and objective of the owner of the website. Websites may be either static or dynamic and the entire features of a website and its usability completely depend on the technical expertise of the web developer.

Website developer: There are most predominant terminologies which common web users are acquainted with are- Web Developer and Web Designer. Web developers play the role in the construction of a web site/webpage; he/she will enable the web site with appropriate tool to make it usable by users according to the need and objective of the website. Web designer’s functions as interior decorators; they are dealing with the aesthetic aspects of a website. Persons having expertise in Java, JQuery, HTML, HTML5, CSS, CSS3, Web Programming Skills, E-Commerce, Teamwork, Verbal Communication, cross-browser compatibility, Web User Interface Design, Security Principles, Object-Oriented Design, Web Services (REST/SOAP), Multimedia Content Development, API's etc. is eligible to be a web developer.

Functions of Web developers: The functions of web developers are wide and diverse as-

{C}·         {C}Development of webpage for the client as per requirement of the client;

{C}·         {C}Designing of webpage and related graphics;

{C}·         {C}Registration of domain name for the client;

{C}·         {C}Promotion of client’s website on the internet;

{C}·         {C}Provide extensive tracking data of the website’s usage by the  public;

{C}·         {C}Write down custom programs which offer improved interactivity to the users who visit the website;

{C}·         {C}Maintenance of the client’s website;

{C}·         {C}In an effort to the combined development and hosting purpose, the developer may also provide technical support, training, and documentation to the client.

Important agreements between Website developer and Client: The most important agreement between a website developer and client may be:

{C}1.      {C}Agreement for website development.

{C}2.      {C}Agreement for website hosting.

{C}3.      {C}Agreement for maintenance of website.

Clauses need to be incorporated: For the purpose of website development agreement the following clauses may be necessary:

{C}1.      {C}Recital: This clause must include:

{C}i)                    {C}Introduction of the parties and their registered offices;

{C}ii)                  {C}Objective of the agreement must be clearly defined;

{C}iii)                {C}Details of work should be given briefly.

{C}2.      {C}Definition: This clause should include:

{C}i)                    {C}Definitions of terminologies related to work must be given;

{C}ii)                  {C}Terminologies like Website, Webpage, Programming languages and also othr technical terms etc.

{C}3.      {C}Scope of the work: This clause need to include:

{C}i)                    {C}The purpose of website and  target readers group must be explained;

{C}ii)                  {C}Technical and other specifications of the website need to be addressed;

{C}iii)                {C}Extent of website accessibility of the users’ needs to be defined.

{C}4.      {C}Demonstration: Exhibition of the web site at public forum whether allowed or not such kind of declaration need to be included.

{C}5.      {C}Amendment: The type and mode of communication between the parties regarding changes in the specification of website and web design need to be addressed under this clause.

{C}6.      {C}Details of website design: This clause includes:

{C}i)                    {C}The language of the webpage structure should be HTML;

{C}ii)                  {C}The graphics may be either in JPEG or GIF format;

{C}iii)                {C}Materials provided by the client should be mentioned clearly;

{C}iv)                {C}Common gateway interfaces (CGI) and Server “plug in” need to be included in order to enhance user interactive interface.

{C}7.      {C}Website hosting responsibility: Web hosting is an important function of a developer. Often, it is seen that expertly designed web sites are not easily accessible on the internet. Performance of the website is also related with this hosting issue or more specifically server hosting issue. Maintenance of the webpage, back up of data and service interruptions due to poor net connectivity must be taken care of the developer side and proper warranty of such services need to be included in the agreement.

{C}8.      {C}Compensation/indemnity: In case of faulty performance of the web site the compensation amount need to be decided either by mutual discussion or by any procedure as determined by the parties to the contract.

{C}9.      {C}Confidentiality: The project of web site development should be treated as confidential and any information regarding such project should not come out in public or other competitors as long as the period needs to be decided by the concerned parties to the contract.

{C}10.  {C}Ownership and rights: This clause need to include:

{C}i)                    {C}Ownership of the work product (website) by the client;

{C}ii)                  {C}Vesting of rights by the developer to the client but with exception of any pre-existing work;

{C}iii)                {C}In case of any pre-existing work for which the developer cannot grant rights to the client; the developer must disclose to the client: a) the nature of the pre-existing work, b) the owner of the work product, c) any restriction or royalty applicable upon the usage of such work, and d) source of developer’s authority to employ the pre-existing work in the preparation of the present work;

{C}iv)                {C}In the performance of the present work the developer need to agree with the terms that he will not violate any IP rights like trademark, copyright, patent rights etc. of any third party.

{C}11.  {C}Representation and warranties by the developer: This clause should include the following terms for the benefit of the client:

{C}i)                    {C}Non-conflict of interest with any third party and the developer should declare that it is not under any obligation or restriction for the performance of the service under agreement;

{C}ii)                  {C}The developer need to declare the ownership of the entire intellectual property rights of the work performed under the agreement;

{C}iii)                {C}The developer need to comply that the work performed by it under the agreement include a) professional diligence of the developer, b) the work will be performed according to the scope of work provided by the client, c) the website must be attributed with all the necessary specification and functions as mentioned in the agreement;

{C}iv)                {C}The developer will be responsible to repair any malfunctioning of the website under agreement.

{C}12.  {C}Representation and warranties by the client: this clause should include the following terms:

{C}i)                    {C}Declaration need to be made by the client regarding its competency and authority to enter into the contract;

{C}ii)                  {C}Declaration by the client to remit all the prices regarding the agreement to the developer;

{C}iii)                {C}Declaration to maintain the confidentiality of the agreement need to be observed by both parties.

{C}13.  {C}Consideration: Cost of website creation, website hosting, maintenance of website and other expenses occurred towards the fulfilment the agreement needs to be decided by the parties.

{C}14.  {C}Term and termination: The term of the agreement should mention about the effective date of the agreement and the period up to which such agreement is valid. The termination clause should include the conditions under which the agreement will be voidable by both parties; and also the notice period of termination of the contract.

{C}15.  {C}Force Majeure: Here, it needs to mention that, non-performance of contract for any cause which is beyond the control of any parties to the contract what will be the fate of the contract need to be decided by both the parties.

{C}16.  {C}Service of notice: Mode and address of service of notice to both the parties must be mentioned in detail.

{C}17.  {C}Time of performance: Time is the essence of performance for both the parties and that must be specifically mentioned in the agreement.

{C}18.  {C}Jurisdiction and disputes: The statutory provisions must be mentioned in this clause and also need to mention the competent Court where the aggrieved party can file a suit for seeking judicial remedy of any legal dispute between the parties.

{C}19.  {C}Severability: If any provision in the agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the concerned agreement.

 

{C}20.  {C}Schedule: Signature of Parties to the contract and witnesses need to be recorded.