When hiring a Web designer, firms should ensure the contract specifies their exact requirements for the design of the site and gives them ownership of the design and content.

Any contract a company makes with a software consultant needs to contain some legal protection so there is redress if, for example, the consultant runs over budget or delivery is late. But a contract made with a firm that designs Web sites will also have to cover issues concerning online content.

As far as possible, it is important to ensure the Web designer in question has a good reputation. This may not be easy because not many Web designers have been around for more than a few years, but it is worth putting in the effort to find an established designer. This will reduce the likelihood of the work going wrong--and in the event of problems, established Web design firms are likely to be in a better position to make amends, says Rachel Burnett, head of IT at law firm Salans Hertzfeld and Heilbronn.

Specifications

The first issue the contract needs to clarify is ownership of the specification: ideally, the client should retain ownership in case it wants to use the design again. The specification is an important document and should be extremely clear on the client's requirements for the look, functioning and performance of the Web site. This could include ease of navigation, response times and the ability to view the site using various browsers.

The more precise the specification, the easier it is to withhold payment if the designer does not meet it, and the harder it is for designers to increase their charges on the basis of having done extra work.

'It's worth getting a specification drawn up by an independent third party, because they will be able to analyse objectively what the site should do for you, whereas the designer may well set the spec to fit their own capabilities,' says Simon Halberstam, head of the e-commerce law section at law firm Sprecher Grier Halberstam.

The same advice applies when specifying deadlines and payments.It is wise to specify both a clear final deadline and key milestones, although some allowance can be made for slippage. even though Web development projects tend to be short, it is worth agreeing on regular meetings and progress reports as a control measure, says Burnett.

Payment, which will usually be in the form of a lump sum, can be made when specific targets are met. The contract can tie payment to acceptance testing, so that part of the payment is made on completion of a successful test.

Burnett believes that for the sake of flexibility an estimated price may be more useful than a fixed one. 'At least make it clear that if the limits are being reached, the designer has a responsibility to inform the client,' she says.

The contract needs to specify whether the Web designer will be responsible for maintaining and updating the site. Both sides should also be clear about responsibilities for maintenance. It is important to agree how often the site should be updated--bearing in mind the client will be responsible for passing on new information to the designer. It should also be agreed how much downtime is reasonable while the site is being updated.

One area that demands particular care is intellectual property--that is, who owns the Web site and its various components. Intellectual property covers three main areas: content written specifically for the site; the standard tools and scripts used by the designer to create the site, often called their stock-in-trade; and the programming tools from any third party. 'Most people are unaware that if the contract is silent on this point, the law dictates that the rights will be with the designer,' says Halberstam.

In the case of content, the contract should specify that the client owns all the intellectual property rights (IPR). In the case of the tools and scripts used by the designer, however, it is unreasonable to ask for the IPR because the designer may use these tools in creating future sites. Instead, the contract should give the organisation an indefinite, worldwide royalty-free licence. This will ensure that if the company's relationship with the designer breaks down or it wants to use a different designer, it still has the right to use those tools.

'The client will want to ensure it has the indefinite, irrevocable rights to use these tools, regardless of whether it is in a relationship with a designer,' says Halberstam. 'Some designers use that as an axe to hold over the head of the client, saying, 'If you don't host with us, we're not going to let you use our stock-in-trade.'' The same applies in the case of third-party software: it is important to have a licence that allows the company to retain use of the tools when it is no longer using the designer.

It is also worth examining the contracts that Web designers have with their own contractors. Although most large software services firms will ensure they own the IPR in any work carried out for them by freelancers, this may not be the case with small Web developers. 'Quite often, small companies are not conscious of who owns what rights,' says Burnett.

There is always the possibility that a designer may unexpectedly go out of business. To safeguard against this, a copy of the source code should be stored with an independent third party--known as an escrow agent--such as the National Computing Centre in Manchester, so that other designers can use it in future.

Caution is also needed regarding copyright--not just for the text created for the site, but for any photographs, graphics, audio or video material used. For example, it may be tempting to reuse photographs from a company brochure, but these are not necessarily the copyright of the company: a licence may be needed from the photographer.

Copyright issues

The responsibility for making sure the site does not infringe copyright can be assigned to the designer or the client. 'It depends who is responsible for the content,' says Burnett. 'That needs to be sorted out as part of the contract. If the designer is providing some of the content, there must be assurances in the contract that the designer has the right to use it through licence.'

Copyright law can also be a concern when a link is created from the company's site to another site, points out Burnett, adding that any linked sites must be agreed with the designer.

'It's also a question of whether it's a link to a home page or a link to the middle of a site. People are interested in copyright where they are making money or losing money. It's often the home page of a site that has advertisers on it, so if somebody is linking into the middle of a third-party Web site and not going through the parts that are important for revenue, that might make a difference.'

The contract should also cover the subject of libellous and illegal material. This is most likely to be an issue if a site has an area, such as a discussion forum, where visitors can make comments. Any material that is libellous, racist or breaches copyright, for example, needs to be taken down immediately.

Responsibility for removing such material needs to be apportioned between client and designer. The client should look for reassurance that any offensive material will be detected and removed immediately. Both the organisation and the Web host--although not the designer, unless they are also the host--may be held legally responsible for such material, even when posted by a third party.

The contract may also contain a clause on confidentiality. This may specify that designers must not divulge any confidential information about the client to anyone else, and that they must not reveal any information that could then be used by a competitor in the design of rival Web sites. In a similar vein, the client may specify that the designer must not work on any other site that closely resembles the one created, to ensure a unique look and feel for its own online presence.

However, it is important to be realistic about the contract with the designer and not to approach it as if it were a major software procurement--Web designers tend not to be large companies and need to stay in business. Burnett warns against imposing a draconian contract. 'One with mutually agreeable responsibilities is much better,' she argues.

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