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Linking to other content, websites, documents, and the like, is a common website practice that is used by many companies. When considering linking, it is essential that the parties in a website development transaction put in place the proper controls to ensure that the linking is done without violating another party’s intellectual property or other rights.
■ The parties should know, ahead of time, what consents are required for any links that the company wants to have on the website and who is responsible for obtaining the consents.
■ If the developer is responsible for obtaining the appropriate consents, there should be a point at which these are turned over to the company for its permanent records.
■ The parties should determine what notices or disclaimers should appear on the screen when one of the links is activated.
Since much of the website development work might be done on the company premises, it is sometimes thought appropriate to have the website developer carry the same type of insurances that other nonemployees who work on the company premises are required to obtain—and possibly to furnish appropriate proofs of the existence of that insurance. Many standard website development agreements do not include insurance provisions, and because many website developers are solo practitioners or work for small companies, it may be difficult to ensure that such insurance coverage is obtained. Regardless, it is an important topic that should be part of a company’s diligence process in selecting an appropriate developer.
Reports, Records, and Audits
It is common in website development agreements to have a reporting structure and to require that the developer maintain records associated with the services provided pursuant to the website development agreement.
■ Consider what reports or records the website developer should create and provide to the company.
■ Is the website developer authorized to incur expenses that the company will reimburse?
■ What records are required for expense reimbursement and what should the audit rights be?
A company may require a website developer to train company employees on either the use of the website or how to make minor adjustments or minor content additions or deletions to the website. Details with respect to the training should be included in the website development agreement in some form—either as part of the main terms and conditions or as a separate training exhibit. The same is true for any instruction manuals or similar documents that the website developer may be expected to leave with the company for minor changes to the site. In some cases, it is appropriate to require that the developer provide a troubleshooting manual, which should be periodically reviewed by the company and subject to the same testing and acceptance procedures as the website itself.
Additional Provisions to Consider
■ Disputes. Many website development agreements contain a form of alternative or informal dispute resolution.
■ Trademarks. In many website development transactions, the developer will be provided with the company’s manual or a set of requirements on the proper use of the company’s trademarks and instructed that those specifications should always be followed. If that is the case and if there are requirements with respect to use of the company’s intellectual property, consider also adding a process for how the developer’s work be reviewed from time to time to ensure the proper use of the company’s intellectual property.
■ Copyright. Website development agreements frequently contain a process to ensure that the developer does not use anyone else’s copyrighted material inappropriately. Further, the agreement typically describes the developer’s obligations with respect to assigning to the company the copyrights to anything created for the company.
While website development agreements will contain many of the same provisions found in other information technology professional services agreements, there are several critical areas that cannot be missed. These types of agreements can get very complicated as companies develop increasingly sophisticated websites and use cut-ting-edge and untested technology. While the provisions discussed in this chapter are essential, it is also important to include the common provisions found in other information technology agreements such as force majeure provisions, notice requirements, modification and assignment restrictions, and the like. It is also important to recognize that many website development agreements are really “combination” agreements involving the development of the website and other matters. These might include hosting, colocation, maintenance, and e-commerce services. In those types of combination transactions, it is important to avoid getting lost in the weeds and ensure that, while the other portion of the deal might be critical, the website development portion should not be lost and the provisions summarized in this chapter should be considered.