Website design involves the development of the content, graphics and technical design of a website. There is a design and substantive content element. The graphics design may involve the evolution of an existing design and the creation of something new. In some cases, the designer may use existing proprietary software while developing new site-specific software.
The commissioner/website owner should define the designer’s obligations. It should deal with their relationship and interaction with the software developer, it this is another person or business. A project plan is usually desirable. It will set and benchmark timing and payment issues. The customers may retain editorial control over the key aspects of the design.
The agreement should seek to define the other deliverables in terms of documents, files, manuals, materials etc. The website specification will usually provide for audio, visual and text content.
The website designers may initially generate a general visual graphic style and description of features. The designer may be obliged to provide particulars of coding to allow the creation and /or development of the site.
Once the initial design has been completed, the website owner may engage third parties to provide the routine / less bespoke pages on the basis of the design. Further elements which are more sophisticated or require new functionality may be the subject work or a further design agreement.
Content may be in the form of written text, graphics, video, film, sounds or a combination. It may be streamed over the Internet. The agreement should provide for the scope, the method of delivery, the platform, method of use, digital media service to be provided. The customers may be obliged to cooperate and provide content branding and materials. Provisions on data protection and confidentiality are likely to apply
Completion of Design Phase
The designer’s work should be capable of being measured against the specification. Given the nature of design, this may be difficult due to the subjective elements. It may be difficult to lay down objective tests as to satisfactory compliance.
Ideally, the website owner would make acceptance of the delivered work subject to being satisfied with it. This is unlikely to be commercially acceptable to the designer.
The plan for the project specifications commonly evolve. The initial specifications may be far removed from what is finally desired or delivered. To a significant extent, a process may be involved. The commissioner will wish to ensure the project is specified in so much detail as possible.
The process is likely to involve ongoing consultation, meetings, submissions, approvals, disapprovals and requests for modifications. This may involve a variation of the original specification or may be within its scope. The parties may dispute the matter in the circumstances.
The design may be based on fixed price. If there are variations or unexpected issues for which the designer is not responsible, there may be variations in the price in accordance with a mechanism. As with design and development work in other sectors, there is significant possibility for the scope of job to creep. This is particularly so, if its scope is insufficiently defined from the outers.
Issues of fair remuneration may arise where the design process is ongoing and interactive, involving proposals which may be rejected or involve a request for modifications. The price may be based on time spent, but subject to limits, controls and a cap.
If there are delays in the work or elements of the work being available, there may be provision for fixed sum compensation, perhaps at a daily rate.
Websites involve multi-layers of pages with navigation, together with hypertext links. Internal navigational features must be designed. The features involve moving from page to page and are central to the user’s experience of the website. Navigational designs may involve flowcharts and logical links defining how navigation through the successive pages and elements of the site will appear.
Intellectual property is central to website design and development. The general issues in relation to software, general literary and artistic copyright that are discussed in other chapters arise. Many features and general elements will not be subject to copyright. Questions of copying and originality may arise if specific features are the subject of another’s copyright
The relevant rights must be acquired and delivered in the relevant elements of the design. The software and hardware and associated right required to develop and use the website must be acquired. Many software products are standard. Further licences would be required for their use beyond the terms of the standard licenses.
The developer’s warranties are unlikely to be unconditional. They may provide for compliance with standards of due care and industry standards. The developer is likely to warrant the lawful use of intellectual property.
The commissioner will wish to acquire the intelectual property in the completed websites. Some third party rights may be available by way of licence only.
There may be an existing design which has been completed by a designer. The design documentation and software should be held. These may be incorporated into the specification for development.
The ultimate objective is to provide a functioning website. A working e-commerce site may be required. The functional specification may provide for a technical infrastructure design and a website navigation map.
Standards of performance may be defined. If the provider has not designed and developed, it may give qualified undertakings or none at all.
There may be obligations in terms of availability, response time. Undertakings may be excluded in relation to areas outside the expertise of the support provider.
The agreement may provide for a fixed-price or a time basis. A time basis will generally incorporate a fixed hourly or periodic rate, with or without a cap.
In the case of a fixed-price contract, the deliverable must be reasonably well defined. All features and functionalities and requirements should be specified.In both cases, periodic payments are likely to be required at key stages.
Where the price is charged on a time basis, greater risk is borne by the commissioner. The basis may be the only one available, where the deliverable elements are less clearly defined. The commissioner may seek to agree, binding estimates or ceilings as the work evolves and it becomes possible to define elements.
The scope of the work should be defined insofar as possible. It should identify the deliverable and have a corresponding or price or pricing mechanism.
The commissioner will wish to achieve the relevant object, within time and budget. A timeframe should be defined. The resources to be employed by the contractor may be specified. This may involve key personnel with the relevant skills.
There may be obligations for ongoing progress reporting and meetings. The purpose is to review address the development of the project and deal with difficulties that may be encountered.
A notorious problem in complex projects is that of scope creep. The default position is that no change in the defined specification is permissible without consent of both parties. Contract clauses may provide however for a variation and change, with a corresponding adjustment on the delivery timeline and cost.
The timing of the completion of the projects will often be of practical importance. There may be an obligation to provide tha website by a certain date. More commonly, there will be a timetable with key elements to be completed by certain specified dates. The willingness of the contractor to agree the dates may depend on the extent to which the specification has evolved.
The intermediate milestones dates may be required to be achieved, independently of the final delivery date. There may be separate testing, delivery and acceptance in reliant on the various phases of the project. Payment may become due on testing and acceptance, following the relevant milestone date.
If the scope of the project changes beyond the specification, the contractor may require the delivery dates to moved forward, if this is necessary to meet the changes and will seek additional payments for further or new work done. Review procedures may be provided to validate whether and to what extent that customer variations and reviews are allowed and if so the effect on time and cost.
In some cases, the customer may have incurred significant investment in anticipation of the site being ready. In these cases, liquidated damages may be payable by the contractor, if the relevant dates are not met. The clauses must not be penalties. They must be a genuine pre-estimate of loss in circumstances where the obligation to be met by the set date, is not met
The general principles of contract law apply to breach of contract. Limitations of liability may be incorporated. There may be caps on recoverable damages. There may be shortened timeframes within which claims must be made. So-called consequential loss is likely to be excluded.
Consequential loss may be, in principle be recoverable in the absence of limitation clauses in many cases. In many cases, the contractor will be actually or be deemed to be aware of the circumstances and kinds of loss for the commissioner which may arise from breach.
The contract should define the quality of what is to be provided. The commissioner will wish to have a functioning website. It may be required to substantially comply with the functional specification. The obligation may be to provide a website which substantially meets the functional requirements. The customer/commissioner may require a higher more absolute standard.
Provision should be made for testing and accepting what is to be delivered. There may be an acceptance test within a specified period of notice of completion. The commissioner will wish to ensure that testing is relative to and effective for verifying the functional specification required. The nature of the tests may be defined. The contract may provide that if the deliverables are not rejected within a certain period that they are deemed accepted
There is an implied obligation by statute and common law to perform services with reasonable care and skill. The level of care and skill to be provided may be specified or confirmed. The required standard to be met may refer to defined processes or methodology or industry standards.
There may be warranties in relation to the quality of the final product. The contractor may warrant that the website will meet the acceptance tests. There may be warranties regarding its quality and functionality in accordance with defined parameters.
Third Party IP
A website development contract will commonly involve software owned by third parties. The key element of the contract may be the integration of third-party software into the customer’s website. There may be warranties in relation to the right to use of such intellectual property rights.
The contractor must have the appropriate licence to use the software. The contractor may be in a position to obtain the required software licences on terms that are not available to the public generally
An indemnity may be given in respect of third parties’ intellectual property rights. The consequence of breach of rights may be severe in that infringements may be restrained and caps and limitations may be placed on the indemnity.
Other Services and Service Providers
The contract may require that additional services be provided. This may include matters such as training personnel. It is quite common for errors or problems to develop. Accordingly, some post completion warranty and support are likely to be required.
The development contract may be accompanied by a contract which provides for website support and maintenance services. The agreement may deal with hosting. In some cases, this may include the further development of the website and changes to deal with the customer requirements.
As with any significant project, the designer or developer may subcontract certain elements to others. Consent may be required to subcontracting. The prior approval of the terms of the subcontract may be subject to approval. This may raise issues of confidentiality and data protection. The designer may be obliged to ensure confidentiality obligations are procured from third parties.
An app or application is commonly the evolution of a programme that is aimed specifically at smartphones and tablets. Apps typically operate on platforms or devices. The main categories are the Apple’s iPhone, iPad or iPod, and Android devices.
An app may be contracted to be developed in much the same way as the website. It must be commissioned, scoped and developed. The customer/commissioner is likely to have a significant impact in the case of an app for the purpose of promoting its particular business. The customer may supply copyright material for content and branding.
There may be provisions for the development of the app in conjunction with the customer. The basic technical requirements for the app might be specified. It might be required that it is to be supported, on particular identified platforms through which it will be distributed.
The developer may prepare a specification as an initial step, with a timetable, proposal and fee structure. This is usually subject to customer’s approval. There may be amendments to the specification. Where this occurs under the contract, an acceptance test must be provided.
The parties may appoint a project team to interact through meetings and other communications for the development of the app. There may be timetables. The agreement should provide for acceptance testing procedures and the procedures and criteria for passing the test.