Information required in a web development agreement: Checklist

This guide is based on UK law. It was last updated in April 2005.

1. Specification

• Is there to be a complete fixed specification at the beginning of the development or is there to be modular development?

2. Implementation plan

• Is there a timetable for performance of the obligations?
• Who co-ordinates progress meetings and how frequent will they be?
• Are any deliverables/resources required from the client and what are the timescales in which these are required
• What happens if the client is late in delivering the content and this affects the completion date (or any interim timescales)?
• What happens if you fail to meet the completion date (or any interim timescales)?

3. Price and payment plan

• Will payment be linked to completed stages of the web site development?
• Will the client be entitled to withhold payment if you fail to meet any specified performance standards, any target dates identified, or otherwise breach any important terms of the agreement?
• Is payment inclusive or exclusive of VAT ?

4. Your obligations

• Have your performance obligations been set out sufficiently clearly to avoid any ambiguity for you and the client?
• If the client's web site is to be transactional, have all the client's obligations under the E-Commerce Regulations been anticipated in the scope of services?
• If the client's web site will collect any personal information from users, does the scope of services anticipate compliance with the Data Protection Act 1998? If the client wishes to make use of cookies on their web site, information will also need to be incorporated for the user on these devices.
• Has the issue of accessibility been discussed with the client, and does the scope of services adequately anticipate the work required and current best practice recommendations?

5. Obligations of client

• What content is the client to provide for inclusion in the software?
• Does the client have the appropriate permissions and consents to use any content it does not own?
• Has the client undertaken that it will not solicit your employees, both during and for an appropriate time after your services have been carried out?

6. Hardware

• Are you to provide any of the hardware?
• If so, what warranties are to be provided (and are you in a position to provide them?)

7. Required third party software

• Is there a requirement for any third party software?
• If so, are the required licences and consents available to you/the client, and who will bear the costs/expenses involved in obtaining them?

8. Service levels

• Is there to be an on-going commitment to provide services with appropriate service levels? If so, the parties need to agree and document the minimum service level requirements.

9. Intellectual property

• Is title to the content, graphics etc. to remain with you?
• Alternatively, is title to pass to the client (and if so, when and for what price?)
• Will you retain ownership of some of the underlying technology?

10. Installation and acceptance tests

• Is the client to take responsibility for acceptance testing?
• Will there be phased acceptance testing?
• Is acceptance linked to payment?
• Will the client have a right to terminate for any failure to pass the acceptance tests?

11. Support and maintenance

• Is support and maintenance to be provided?
• Is provision of such support and maintenance linked to a warranty period?
• If not, will a separate support and maintenance agreement be required?
• What is the level of support offered and how is this to be charged?

12. Warranties from you

• Have you included a warranty to supply the web site free from material defects?
• Is there a warranty that the web site will conform to the specification? Will you have an opportunity to resolve any material defects?
• Is there a warranty that the web site will not infringe any third party intellectual property rights? If so, is there an indemnity against all losses etc. occurring as a result of such breach?

13. Warranties from client

• Is there a warranty that the content supplied by the client will not infringe any third party intellectual property rights? If so, is there an indemnity against all losses etc. occurring as a result of such breach?
• Is there a warranty that the client has complied with all legal, financial services and data protection issues?

14. Warranty period

• What length of warranty period is to be offered?

15. Your liability / indemnities

Specific legal advice should always be obtained in relation to this issue, but examples of provisions commonly agreed include:

• You will indemnify the client for any loss, damage or injury suffered by the client as a result of an action brought by a third party for breach of your obligations under the agreement.
• You will indemnify the client for claims of infringement of third party intellectual property rights by web site content where you have supplied that content.
• You will not be liable for any loss, damages etc. or other claims for compensation arising from any content or instructions supplied by the client.
• Your liability should be limited to a stated sum – for example, to the total aggregate fees paid by the client or the level of your insurance.

16. Client's liability / indemnities

Examples of provisions which you may consider accepting include:

• The client will indemnify you for any loss, damage or injury suffered by you as a result of an action brought by a third party for breach of its obligations under the agreement.
• The client will agree to indemnify you for claims of infringement of third party intellectual property rights by web site content where the client has supplied that content.

17. Sub-contracting

• If you need to sub-contract any element of the services required by the client, the agreement must be flexible enough to allow you to do so.

18. Confidentiality / publicity

• Are there any specific issues relating to the confidentiality of the relationship with the client, or the work being carried out by you for them?
• Do you wish to have any input in relation to any client marketing materials which may mention your relationship, or do you wish the ability to use the client's name in your own marketing materials?