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The Legal Aspects of Web Design — Caveat Emptor
by William Szczepanek

Article 13: May 22, 2008

In a time long, long ago, a handshake was all that was needed to establish a working relationship.  That level of trust was so strong that to break it was to damage your credibility beyond repair.  In the time of snake oil salesmen, the smart people knew who to avoid and who they could trust.  A couple of hundred years later, the sharks are out to make a killing and caveat emptor; “Let the buyer beware” are the words of the day.

So, to the rescue come the lawyers who with their contracts and quarter-hour legal fees tame the land and make it safe for all to do business in an ethical manner, except understanding their legal mumbo jumbo for one side often requires another lawyer to get involved for the other side.  And, so it goes in this great land of ours.

Only today it is also complicated by caveat venditor, “Let the seller beware”, where the seller of products of services must also be careful.  Now, we’re so busy being careful it becomes hard to make money, or do a good job.  Who can you trust? Along comes Snake Oil Web Design Company, who promises to get your custom Web site up and running in less than an hour for no cost.  All you have to do is sign on the dotted line and read the fine print, if your monitor will display print that small.

That explains why so many people go to their friends to get help.  Joe has done a website.  I can trust him to do a good job.  Or, they decide to do it themselves since they can’t trust anyone.  But, these two options can have negative effects far greater than the costs of legal counsel.

When first starting a Web design business most people don’t feel they need to use a contract.  Sometimes they feel that getting paid up front first will alleviate the need, or they feel that if they ask someone to sign a contract, they will think that they are not to be trusted, or the contract will scare them away. In dealing with large companies a contract is essential if only for the fact that employees come and go and having some legal papers outlining the commitment can protect both sides.

All of the above may be true, but if a customer tells you that they don’t want to work with a contract, then my advice would be to avoid doing work for them.  Contracts should not be viewed as a device to protect one side from the other, but more as a mechanism to enable both sides to work together and better understand the project at hand.  A contract goes hand-in-hand with the documentation to initially define the project.  The contract will include the specifications for the work in such a way as to not allow one side to forget what was agreed to. So, contracts are a way of getting both sides to agree and understand, and will alleviate unnecessary worry later on when the customer, says, “I thought the website was to have 12 pages.” You can show them that they agreed to 11 pages.  At this point you have a way of either making more money, or establishing some additional rapport by saying, “With our current design, an additional page will not be a significant extra cost, but some extra time will be necessary.”

One of the most important aspects of a contract is to limit the number of drafts that will need to be reviewed and changed.  Two rounds are typical, but if clients want more, then it’s an easy thing to revise in the contract up front.  The importance is that the client understands that they will not be able to make changes forever.  It will encourage them to review and think about the design on each iteration of the testing cycle.  The initial contract should also spell out the fact that maintenance of the site is contained in a separate maintenance contract.

The contract is also the most effective way of outlining the payment terms.  Upon signing the contract it is usual to get all expenses paid for domain name acquisition and hosting along with a predetermined down payment.  For small projects this can typically be 50% of the project cost.  For larger projects it can be broken into a few milestones.  Final payment is usually made before the final, approved site is uploaded.  This gives both the client and the designer an incentive to complete the project.

Regarding intellectual property, copyrights and trademarks, it is important to point out to clients that anything that is put on their website is their responsibility.  The must be sure that all copyright issues are addressed.  Many people assume that they can copy text and pictures from another website just because they can do it or that a copyright notice is not present.  Nothing could be further from the truth.  If it’s not yours, get approval to show it on your site.  Internet copyright law is being revised and updated often as the industry matures and grows.  This is an area where an intellectual property attorney can be very helpful.

Sample contracts for Web design work are commonly available on the Internet. Your attorney should be familiar with electronic media and intellectual property law. You should be in agreement with your attorney on the content of the standard contact and he/she should be involved in any changes that can possibly be misconstrued.

In the end the presence of a contract can help all to sleep better.