Web design and development agreement

We created this web design and development agreement to provide maximum flexibility for web developers. It may be used in relation to a wide range of project types and technology types. For example, the agreement takes account of the possibilities that the developer may be using third party (including open source) software to create the website and/or that the developer may be using its own framework code in the website.

The template comes in three versions: a basic version, a standard version and a premium version. Each of the documents may be adapted to balance the interests of the parties, or to favour the interests of one party over the interests of the other party.

One of the key issues in any web development agreement is the treatment of intellectual property rights. Three different clauses are provided to cover the treatment of these rights. First, the intellectual property rights may be assigned to the customer, subject to a carve-out for rights owned by third parties and the customer's own materials. Second, these rights may be licensed to the customer. Third, the rights may be subject to a mixed assignment and licence. In each case third party rights and customer rights are subject to separate treatment.

The standard and premium versions include a straightforward acceptance testing provision. This sets out a procedure to help the parties to determine whether the website produced by the developer meets the agreed specification.

This document is almost the same in substance (but not in form) as our terms and conditions-style web design and development document.

This document forms part of our web design and development pack.

The content list from the premium web design and development agreement is set out below. Certain clauses are omitted from the shorter versions.

DATE

PARTIES

BACKGROUND

AGREEMENT

1. Definitions
2. Term
3. Development Services
4. Set Up Services
5. Acceptance procedure
6. Additional Development Services
7. Second Party obligations
8. Second Party Materials
9. Intellectual Property Rights
10. Reversion of assignments and licences
11. First Party Credit
12. Representatives
13. Management
14. Change control
15. Charges
16. Expenses
17. Timesheets
18. Payments
19. Confidentiality obligations
20. Publicity
21. Data protection
22. Warranties
23. Acknowledgements and warranty limitations
24. Indemnities
25. Limitations and exclusions of liability
26. Force Majeure Event
27. Termination
28. Effects of termination
29. Non-solicitation of personnel
30. Notices
31. Subcontracting
32. Assignment
33. No waivers
34. Severability
35. Third party rights
36. Variation
37. Entire agreement
38. Export control
39. Counterparts
40. Law and jurisdiction
41. Interpretation

EXECUTION

SCHEDULE 1 (WEB DESIGN AND DEVELOPMENT PARTICULARS)

1. Specification of Website
2. Rights in Website to be assigned
3. Second Party Materials
4. Third Party Materials
5. Set Up Services
6. Timetable
7. Financial provisions
8. Representatives

SCHEDULE 2 (FORM OF CCN)

1. Introduction
2. Change details
3. Impact of Change
4. Agreement to Change

What rights do the client and the development agency have to cancel the contract where the other has misbehaved?

A flexible "termination for cause" provision is included. You may choose whether to allow the parties to terminate in the event of any breach of contract, or only when there is a "material breach" of contract. You may also choose whether, where a breach is remediable, the party in breach will have an opportunity to rectify the breach before termination.

Where you have decided that single breaches will only be termination events where they are material, there is an option to provide for termination in the event of "persistent" breaching of the contract.

How does the document protect me from illegal content supplied by customers for incorporation into a site?

Although this is more of a problem for web hosts than web developers, developers can find themselves liable as a result of unlawful materials supplied by customers. To ameliorate this issue, the template includes a prohibition on the supply of unlawful materials by the customer, and in the longer versions an optional indemnity which may be used to protect the developer in the event of a breach of that prohibition.

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A copy of this web design and development agreement is included in the following pack:

• Web design and development pack (all versions of the document are included in this pack)