Out-Law / Your Daily Need-To-Know

Information required in a web development deal (checklist)

30 Mar 2005, 3:21 pm

This guide is based on UK law. It was last updated in September 2007.

Is there to be a complete fixed specification at the beginning of the development or is there to be modular development?
Is there to be a design agency involved to prepare a creative specification for the development?
Is there a need for an initial scoping exercise to determine what needs to be done and to enable to developer to provide an accurate quote.

What are the key milestones in the development process? For example:

Acceptance;
Live website; and
Warranty period starts / ends.
Who co-ordinates progress meetings and how frequent will they be?
Are any deliverables/resources required from the client and what are the timescales in which these are required
What happens if the client is late in delivering the content and this affects the completion date (or any interim timescales)?
What happens if you fail to meet the completion date (or any interim timescales)?

Will payment be linked to completed stages of the web site development?
Will payment be over a split percentage payment plan? For example:
- 40% on successful continual operation of the website for [●] days.
Will the client be entitled to withhold payment if you fail to meet any specified performance standards, any target dates identified, or otherwise breach any important terms of the agreement?
Is payment inclusive or exclusive of VAT?

Have your performance obligations been set out sufficiently clearly to avoid any ambiguity for you and the client?
Have you appointed a project manager? Is one needed?
If the client's web site is to be transactional, have all the client's obligations under the E-Commerce Regulations been anticipated in the scope of services?
If the client's web site will collect any personal information from users, does the scope of services anticipate compliance with the Data Protection Act 1998? If the client wishes to make use of cookies on their web site, information will also need to be incorporated for the user on these devices.
Has the issue of accessibility been discussed with the client, and does the scope of services adequately anticipate the work required and current best practice recommendations?
Does the client require training and have you the ability to provide this training?

What content is the client to provide for inclusion in the software?
Does the client have the appropriate permissions and consents to use any content it does not own?
Has the client undertaken that it will not solicit your employees, both during and for an appropriate time after your services have been carried out?

Are you to provide any of the hardware?
If so, what warranties are to be provided (and are you in a position to provide them?)

Is there a requirement for any third party software?
If so, are the required licences and consents available to you/the client, and who will bear the costs/expenses involved in obtaining them?
Who is responsible / liable for the performance of any third party software?
Ensure that any liability or performance service levels for third party software is not inadvertently incorporated into any warranties or indemnities you provide.

Is there to be an on-going commitment to provide services with appropriate service levels? If so, the parties need to agree and document the minimum service level requirements.
Is there going to be any service credits for failure to meet the agreed service levels?

Is title to the content, graphics etc. to remain with you?
Alternatively, is title to pass to the client (and if so, when and for what price?)
Will you retain ownership of some of the underlying technology?

Is the client to take responsibility for acceptance testing?
Who will determine whether the testing has been successful?
Will there be phased acceptance testing?
Is acceptance linked to payment?
Will the client have a right to terminate for any failure to pass the acceptance tests?

Is support and maintenance to be provided?
Is provision of such support and maintenance linked to a warranty period?
If not, will a separate support and maintenance agreement be required?
What is the level of support offered and how is this to be charged?
Consider what will be a realistic time frame in which to:
- (a) respond; and
- (b) fix the problem.

Have you included a warranty to supply the web site free from all known viruses and material defects?
Is there a warranty that the web site will conform to the specification? Will you have an opportunity to resolve any material defects?
Is there a warranty that the web site will not infringe any third party intellectual property rights? If so, is there an indemnity against all losses etc. occurring as a result of such breach?

Is there a warranty that the content supplied by the client will not infringe any third party intellectual property rights? If so, is there an indemnity against all losses etc. occurring as a result of such breach?
Is there a warranty that the client has complied with all legal, financial services and data protection issues?

Specific legal advice should always be obtained in relation to this issue, but examples of provisions commonly agreed include:

You will indemnify the client for any loss, damage or injury suffered by the client as a result of an action brought by a third party for breach of your obligations under the agreement.
You will indemnify the client for claims of infringement of third party intellectual property rights by web site content where you have supplied that content.
You will not be liable for any loss, damages etc. or other claims for compensation arising from any content or instructions supplied by the client.
Your liability should be limited to a stated sum – for example, to the total aggregate fees paid by the client or the level of your insurance.

Examples of provisions which you may consider accepting include:

The client will indemnify you for any loss, damage or injury suffered by you as a result of an action brought by a third party for breach of its obligations under the agreement.
The client will agree to indemnify you for claims of infringement of third party intellectual property rights by web site content where the client has supplied that content.

If you need to sub-contract any element of the services required by the client, the agreement must be flexible enough to allow you to do so.

Are there any specific issues relating to the confidentiality of the relationship with the client, or the work being carried out by you for them?
Do you wish to have any input in relation to any client marketing materials which may mention your relationship, or do you wish the ability to use the client's name in your own marketing materials?