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Contracting to Build a Web Site? 
Ask These Six Questions First

1. Who owns the creative material and software?

Web sites usually consist of both creative material and software, so who owns the material that makes up a Web site? That depends on the type of contract you negotiate. U.S. copyright law provides that the creator of a work automatically holds the exclusive copyright to it. Therefore, the only way that copyright may be transferred to a customer is in writing as part of assigned contract. You really need to understand each of the pieces of your Web site. Specify in your agreement who will own and control each element, including:

• text, graphics, audio, and video files provided by you (which may have talent rights involved)
• third-party photos and other creative material
• software created by the developer
• software created by third parties
• HTML, CGI, and other coding

   

Often business owners are not technically savvy, and may not even know what questions to ask the developer. It's critical to get the input of everyone within your company, including marketing and technical people, who can contribute to a better understanding of both the needs being addressed by the Web site and what the developer is saying.

After the site is properly fleshed out and the parties have a true understanding, the contract should go into sufficient detail to describe and formalize that understanding. Details should include:

• deliverables, deadlines, acceptance criteria, payment amounts and milestones
• proprietary or third-party software being added to the project
• any additional services which are desired or available from the developer, such as hosting, ongoing maintenance of the site and its software
• advertising /PR services for the site or your company as a whole

3. How will the site be maintained after it is created?

Maintenance encompasses a whole litany of possible services, including:

• minor or major content updates
• troubleshooting and solving technical problems
• hardware service and support
• installation of update software components

In addition, because the developer may carry a number of clients, priority can be an issue. Make sure that the agreement states which requests will be given high priority and that the developer tells you what response time your company can expect.

4. How long before saying "so long?"

• How long is this project or relationship to continue, and under what circumstances might it end earlier than planned?
• What happens after termination? For instance, who owns the material already created for the Web site?
• What has to be paid?

5. How can I safeguard my company's confidential information?

To do the best job of creating a Web site, the developer and the business owner need to understand each other's products and services. It's essential that each be obligated to keep the information confidential, and only use it for the furthering of the business relationship. At the same time there need to be limitations on those restrictions. Let the developer know how long your information must be kept confidential, and include a provision that states that material in the public domain or that has been independently developed or legitimately received from outside your company will not be considered confidential.

6. Who is responsible?

It would be unfair for your company to ask the developer to accept responsibility if the annual report photos you've provided for your site could not be legally transmitted over the Internet. At the same time, the developer should not require your company to investigate every line of programming code to make sure it was not copied from another software company. Therefore, both the business owner and the developer should probably warrant that the materials it provides do not infringe upon any third party's rights.

Copyright © 2000-2005 Jonathan Ezor. All rights reserved.