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This article is written by Prateek Giri Goswami pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

With the advent of technology and the burgeoning digital world, the current times are a different era in all itself, the digital world has transcended the past conventional methods of reaching the masses. In today’s time, anyone can make their product or services known to millions of people at minimal cost by creating a presence on the internet. Therefore, it becomes imperative to make such a presence on the Internet captivating and to have a website design consultation can become a useful tool. This article will aim to discuss the necessary clauses, terms, and conditions which one needs to keep in mind while drafting a website design consultation agreement.

What is a website designing consultation?

It is a service related to developing a website in accordance with the needs of the client, the qualified personnel assess the business and the overall needs of the client develop an interface of the website in a manner that is more attractive and user friendly and thereby enhances the overall accessibility of the website.

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Benefits of getting website consultation

It’s simple expertise works, if you wish to organize an event, you hire an event management firm similarly when you wish to contrive an online presence by creating a website it would be more viable to hire the person who has the profundity and skillset to create the best version of your organization,s online identity, in such competitive virtual world, it is pivotal to develop your website in accordance with the needs of the users or your prospective clients, if the website is developed by planning all factors for the targeted audience, it will help in accentuating a bigger user base and thereby fulfill the very purpose of creating a website.

What is a Website Consultation Agreement (WCA)?

It is an agreement between a customer and a consultant/consultancy firm acting as an independent contractor/developer, the customer engages the services of the consultancy firm to develop a website in accordance with the terms and conditions of the agreement.

Important clauses to keep in mind while drafting a Website Consultation Agreement

  • Scope of work

It is necessary to define the scope of work that is expected by the developer by the virtue of the agreement, it expressly states that the developer shall develop a website for the client in accordance with the schedule annexed with the agreement, the annexed Schedule will have all the details stating the manner in which the website shall be created. Illustration: the website shall contain the following:

  1. Blue and red colour fonts.
  2. Conspicuously placed logo/trademark and name of the client.
  3. Terms and conditions such as website policy, copyright policy, the privacy policy provided by the client.
  4. Home page, about us, contact us, search engine, FAQs, etc.
  5. Written paragraphs provided by the client. 

  • Some important obligations of the developer under a WCA

  • Design

The developer required to exercise his expertise and knowledge in developing the website, however, primarily the developer shall be obligated to develop the website in accordance with the material provided by the client and his needs the developer role is to create a captivating professional image of the out of the material given by the client, further, it can be added that the developer shall not develop anything that might be viewed as offensive or related in any way to sex or any illegal activities. For example, the website background shall not resemble the Indian Flag or it should not have any logo that is similar to logos, emblems, or names that are prohibited by the virtue of Emblem and Names (Prevention of Improper Use)Act, 1950. Another example can be taken from the recent Myntra logo controversy when a complaint was filed by an activist against Myntra alleging that the logo is offensive towards women and it prompted Myntra to rejig their logo.

  • Progress update

The goal is to develop a website in accordance with the needs of the client, so it will be beneficial for both the parties if the client is completely apprised of the progress that is being in the construction of the website by the developer, this in return will help in negating any misunderstanding and ensure that a mistake is rectified at the outset, while drafting an agreement, it can be inserted that the developer is required to provide progress update report upon request by the client, however, the developer may ask for the extra fee for furnishing such reports as it will consume the time of the developer.

  • Procedure for change 

It is necessary to mention how the demanded changes will be communicated to the developer and if the client is a company then it is pertinent to mention which person will be having the authority to correspond with the developer with the respect to changes in the websites. For example, the parties may agree that upon a written request of recommended changes by the project analyst of the client’s company, the developer shall ensure the changes within 7 days. Furthermore, it can be added that any changes will be subject to additional charges on an hourly basis.

  • Home page and domain name

The website shall have a home page that can be accessed through URL, and it is incumbent upon the developer to register a domain name as requested by the client. For example, the parties can insert a clause that the developer must ensure that a domain is registered in accordance with the general registration policies framed by the Domain Registration Service India.

  • Development phase

The developer shall enable the client to access the website during the development phase of the website, this will ensure transparency and expedite any rectification process that is required as per the demand of the client.

  • Registration with major sites 

The developer shall register the website URL with prominent search engines such as Google, Bing, Web Crawler, and Excite, the developer shall also provide a list of 20 more websites that may be a viable option for the client to register in the future. To create an online presence registration with the most used search engines is pivotal as it is manifest that people usually search for websites on search engines.

  • Delivery of deliverables

Once the website is finalised by the client, the developer is required to hand over all the relevant data of the website to the client, it is pertinent to mention that this clause must be detailed as what will be construed as the relevant data and how and in what format the said relevant data will be transferred. To get the idea about the delivery of deliverable clause is reproduced as: “Upon company’s approval of its final website, or upon the termination of this agreement, whichever occurs earlier, the developer shall deliver to company all code, documentation, reports and other materials developed by a developer in the course of its performance under this agreement and any other items reasonably necessary for the operation of company’s wet) site (other than third party operating system software, third-party networking software, web browsers, and hardware) and all changes and enhancements thereto (the “deliverables”). documentation shall be delivered in printed format and in electronic format. code shall be delivered in electronic format. the transfer of electronic materials shall be accomplished by copying them to floppy disks, 100 megabyte ZIP cartridges, or via File Transfer Protocol (“FTP”). Files will be provided in HTML format, standard word processing Text format, or, if images, as TIFF’s GIFF’S, JPEG’s or Photoshop files. The developer shall maintain its back-ups and one set of the final materials provided to the company for a period of six months after the company’s approval of its final website. if this agreement is terminated prior to final approval, or at the expiration of this six month period, the developer will destroy all of its copies of the company’s website (including all back-ups thereof) and “wipe” all files constituting final or working copies of company’s web site (other than the final copy hosted on developer’s web server and one backup copy thereof) from developer’s computers and back-up materials unless otherwise directed in writing by the company.”

  • Some additional obligations of the developer during the development phase

  • Server hosting

Along with developing the website, it is also the duty of the developer to maintain the optimal functioning of the website till time the website is on the developer`s server and ensure the website is accessible to users the time, the developer is also required to create and maintain the backup of the website once in a week. Some common examples of server hosting are: (1) To ensure optimum functioning of the website by conducting monthly maintenance (ensure that there is no hacking virus, data security, resolving complaints as to the accessibility of the website). (2) Storing back-up of all the data in a safe environment. (3) Implementing modification proposed by the client

  • Transaction logging

The developer is also required to maintain data and analysis of the website traffic with respect to the visited IP addresses, most visited pages, or most clicked links on the website and to provide such analysis to the client when requested. For example, until the website is the developer`s server, the developer shall collect all the relevant data generated by the users and deliver the analysis of the same to the project analyst of the client’s company, the developer shall also provide a secure access link to the project analyst to review the website.

  • Copyright notice

Another mark of credibility and authenticity of a website is the copyright label on every page of the website, therefore the developer must ensure that a conspicuous copyright label such as “© (2021) (client’s name)” is present on every page of the website.

  • Types of compensation 

Generally, the method of compensation for such services of website development is based on an hourly basis, or the developer may ask for one time lump sum at the outset, payment along with the fee for basic services provided by the developer there can also be other additional fees charged by the developer, for example:

  • Basic compensation

This will be the fee charged by the developer for developing the website under the agreement, the client can agree to pay 70% of the fees immediately upon execution of the agreement and the remaining amount can be paid when the approved and final web pages have been constructed and posted live on the internet’s world wide web or at client’s assigned network. To protect the interest of the developer an additional clause can also be added stating the consequences of late fees by the client.

  • Towards future maintenance

Subsequent to delivery of the website by the developer, the client may wish to seek the help of the developer in the management and maintenance of the website for some time, the charges for such additional services of maintenance can also be pre-determined by the parties.

  • Additional changes

Similarly, any additional changes requested by the client that are beyond the scope of the work as agreed by the parties under the agreement, the developer may explicitly define the fees on an hourly basis for the changes requested by the client that was beyond the purview of the scope of work of the developer under the agreement. 

  • Ownership rights

The website development agreement has the essence of work for hire agreements, therefore, it is manifested that the ownership will belong to the client, the website and all other deliverables is deemed to be owned by the client exclusively, however, subsequent to termination of the agreement, if the client request any additional change in the website, the ownership of intellectual property of the said the new change may reside with the developer depending upon the agreement between the parties.

  • Ownership rights of the developer

One of the reasons a person or entity chose to avail the service of a developer is that they have the latest technology and skillset to create a well-articulated professional website, which means the developer has an existing technology that he owns and uses that technology in formulating a whole new website for the client, albeit, the ownership right of the website reside with the client, however, the programming codes or any other software owned by the developer is used in developing the website the owner of the said pre-existing programming codes or software will be retained by the developer.

  • Confidentiality

The client company is supposed to provide material and data to the developer and the website will be intellectual property, therefore, it is pivotal to keep such data/information confidential and the developer must be prohibited to divulge or exploit such data for personal gains.

  • Agreement with employees

Because the confidentiality element is involved, the confidential data must not get transpired beyond the developer and its employees, hence, it is imperative that the confidentiality and other terms of the agreement extend to the developer`s employees who have been assigned to develop the website and the developer must be prohibited to further delegate the developing task to any third party without the prior consent of the client. 

  • Termination and its effect

The agreement shall explicitly state the events of defaults which may lead to termination of the agreement, in the event the agreement is terminated abruptly without following its ordinary course of termination then the consequences of the same must be pre-determined, such as the delivery of all the personal material and data of the client.

  • Time is of essence

In the current times, it is pivotal for every organization to create its presence on the internet as it is a powerful tool to increase the consumer base of the client thereby a conduit to massive revenue generation, therefore, it is appropriate for the parties to acknowledge that the complete the task under the agreement the time is of the essence and it is incumbent upon the developer to strictly adhere to the timeline determined by the parties for the endeavour.

Conclusion 

Like any other agreement, a WCA contains many more other clauses which are similarly important such as explained above including boilerplate clauses, also the representation and warranties must be draft scrupulously to leave no grey area, for further more detailed understanding of WCA it is advisable to peruse few agreements related to website design. 

References

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