Companies wishing to create or re-vamp their websites must, first of all decide and then agree how the websites should be designed and developed. This should be specified in a website design and development agreement which will ensure that, the company gets what it requires in relation to the website designs and the website hosting. This is achieved by imposing an obligation on the designer to create the website, according to the company’s specifications and the designed/developer is certain to have correct instructions to ensure that the project is delivered on time and in budget and remains profitable.
Below are some key points:
•Ownership of what is developed: The company will want to ensure that if it develops any specific features or applications that differentiate the site or any design or other material, it owns all rights in them. The type. of intellectual property that apply to various website elements are mainly copyright. By law, the first creator of the materials (i.e. the designer or its consultant, sub-contractor etc who created the materials), will be the owner of the copyright in such materials (text, images, music, software, trade mark) unless it has signed an agreement transferring such rights to the company. The company by ensuring that it owns or has the right to exploit the copyright and related rights in all aspects of the web pages (including the overall design, any specially written text or graphics, and the coded version of the pages), can then transfer the website to another designer/developer to complete the project where, for example, the current designer/developer is not performing, use it as leverage to increase the value of its company or seek investment. Intellectual property rights are assets of the company even if they are “intangible” or as I would say very often “invisible”.
In most cases, there is no reason why the designer should not agree to transfer ownership of the IPRs developed specifically for the company, or to license such rights where the designer is not in a position to grant an outright transfer (such as where third party works are included in the site content). However, the designer should ensure that it does not transfer to the company ownership of any intellectual property in any underlying software of the designer not specifically developed for the company but needed to operate the website. In such a case, the designer will grant a licence permitting the company to use the relevant works in the operation of the website. However, the company must be careful to ensure that it obtains all the necessary rights so that it is not restricted in the operation of the website (whether by territory, time or other restrictions).
•Timetable: the company should seek to ensure that the designer is contractually bound to meet key TheBusinessDaily.org milestones, in particular the date for launch of the site and what are the remedies in the event they are not met.
•A budget and payment options: need to be agreed at the outset as costs will vary depending on the complexity of the proposed site, the types of graphics required and so on and this very often will be the first point where a dispute may start between the parties. Payment may be on a fixed-fee or time-and-materials basis (or a combination of both)