Web Developers – want to stay out of Court ?
This time, more information from one of our business law specialists, Spencer Laymond, targeted at web developers. He’s written a handy guide entitled
“Web Development Agreements – 7 Steps to Staying out of Court”
Avoiding litigation and staying out of court, does not have to mean elaborate terms and conditions costing significant amounts. Whilst there are some special issues for consideration, such as the limitation of liability provisions, the vast majority of issues will deal with standard contract fundamentals.
What is recommended, is a systematic and logical process to go through the relevant issues and ensure they are properly covered in a binding agreement, or that the web development company understands and accepts the risk.
We’ve set out the main headline points here in an extract from his guide and you can get a full copy by contacting Spencer on 0208 363 4444 – spencer.laymond@Curwens.co.uk.
In this report he looks at 7 of the most common pitfalls where web designers and developers have got themselves into trouble:
1 — But I never agreed to do that, or that, or even that!
One of the most common complaints we hear from firms providing website design or development services is that the client does not understand what they are buying. So where do we draw the line between what must be done for the agreed price, and what is “extra” requiring an additional price?
2 – They don’t like the quality of what we have provided
Complaints as to quality can be one of the most common reasons for litigation. Managing a client’s expectation can often be a challenge. Clients can come with differing levels of knowledge and experience. Bearing this in mind, the web developer will need to ensure they have a robust method in place for demonstrating quality.
3 – I hold my hands up, I am late in delivery, but does this justify non or reduced payment?
The answer to this question will depend on whether the time for delivery is regarded ‘of the essence’ of the contract. If it is, then late delivery will probably be regarded like a guillotine where the late delivery is automatically regarded as a serious breach of the contract.
4 – Can a client withhold payment?
Put simply, a client may certainly have some legal entitlement to withhold payment if they have genuine issues with the services provided. Indeed, if credit terms have been provided, then commercially they hold the purse strings. If a client does not pay, then the onus will be on the web development company to take the necessary actions to enforce their right to be paid.
5 – How do we agree the price to be paid when we can’t agree the scope of the project?
Answering this question is no different in relation to the supply of services in many difficult industries. Pricing can be as much a process of art as a process of science. For simple work, where all the variables that may affect the cost can be calculated and determined in advance it may be possible to charge a fixed fee.
6 – what are the intellectual property rights that are being created and who owns them?
In any website there may be a myriad of intellectual property rights joining it up, however, the key intellectual property right created in a website is copyright. Copyright will be contained within the surface content of the website as well as the background software programming. Other rights include trademarks, database rights, design rights and, to a very limited extent, patents.
7 – will my standard terms and conditions cover other types of services we supply such as hosting services?
It depends. Sometimes they will work, but other times they won’t. On the face of it, providing hosting services will entail the same considerations as any other provision of any other service e.g. price, payment, intellectual property and limitation of liability terms. However, hosting is a specialised service and so there should be a section dealing with the special concepts relating to hosting e.g. upload time.
So, for the web development company that wants to “stay out of court”, they should ensure they have their agreements reviewed by an experienced solicitor. Even if the web development company thinks that its agreements are perfectly adequate, if they have not been tested by someone with the knowledge and experience to give them the official confirmation, then the web development company may still be taking a big risk.
0208 363 4444