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What are the Basic Objectives of the Website and the Development Agreement?

This is perhaps the heart of the website development agreement. It should describe and define exactly what the parties intend to develop. The language of the agreement should be as specific and detailed as possible. The following factors are essential considerations for any website development agreement:

■ The specifications for the website are commonly attached to the website development agreement as an exhibit. This may take the form of a statement of work (SOW), which is sometimes a single statement and is sometimes a series of statements that evolves as additional features or capabilities are added. If your company anticipates a series of SOWs, ensure that the agreement includes a process for developing and approving those SOWs and for including them as exhibits to the agreement. It is important to describe in the agreement or in an exhibit to the agreement what technology, and equipment, each party must supply to the other in order for the website to meet the specifications.

■ Website development agreements commonly include a detailed process for changing or amending the specifications and the SOWs. This is often done in the form of change orders that must meet certain requirements, such as being in writing and issued only by authorized persons. A change management process is essential if changes to specifications and SOWs are anticipated.

■ The parties must understand ahead of time the extent to which the new website is to be based on another website. For example, the website may need to have at least the same capabilities as the websites of major competitors. If that is the case, the competitors’ websites would be listed in the contract.

■ Each website development agreement will specifically state the functions that are required. These are often listed in the specifications, SOWs, or other attachments to the agreement. For example, in many website development transactions, there are certain search, indexing, linking, expansion, and maintenance requirements. In addition, the specifications and SOWs will also include specific required features and a description of those features. These may include requirements with respect to tool bars, buttons, online forms, graphics, and music capabilities (a separate legal issue such as music copyrights and the permissions necessary to use music on a website is a complex legal issue). Another feature the company may want to consider specifying is a maximum download time, or some stated rate of speed; the graphics and other features of the website may have to be matched against that requirement.

■ Maintenance and updating requirements are frequently included in website development agreements, either in the terms and conditions or in an attached maintenance and support agreement. The maintenance and updating requirements frequently address the following topics:

  • - Tire extent to which periodic updates to the website are to be provided by the developer.
  • - Requirements for when updates can occur (e.g., once a month, limited to two hours unless additional compensation is agreed to).
  • - A requirement that the developer provide training and a manual to company personnel who will do most of the updating and routine maintenance of the site content.

■ Certain programs, facilities, and rights of access will be granted by the company to the developer. In order for the developer to accomplish the desired objectives, the company will probably have to grant the developer access to various facilities and programs of the company. It is generally recommended that the company be as specific and detailed about the access or other items that it will provide to the developer as it is for the things that it expects from the developer. Problems in this area often result in finger pointing (i.e., the developer claiming that it did not meet the timetables because the company did not allow the developer sufficient access to company computers). The times and procedures for responses and participation by the company should be as detailed and specific as those for the developer.

■ If the existing website is to continue in use, has it been audited to be sure everything remains appropriate to the new site, including links, copyright issues, trademark issues, terms of use, privacy, and all other aspects of the website? The company should consider the extent to which it will warrant to the developer that anything that the company authorizes the developer to use from the company’s existing website is free of legal and other problems.

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