When creating or re-vamping websites, the website designer  must agree with the owner how the website should be designed and constructed. This should be specified in a website design and development agreement which will ensure that, the website owner gets what he requires, by imposing an obligation on the website designer to create the website, according to the agreed specifications and the website designer is certain to have correct instructions including website hosting to ensure that the project is delivered on time and in budget and remains profitable.

Below are some key points:

• What is to be created: the contract should set out clearly, in sufficient detail, the company’s requirements for the website development, in terms of a functional and performance requirements and in terms of any visible content (whether this is video, images, music or text referred to as design website). The agreement should clearly state who is responsible for ensure that legal requirements to which the company is subject are identified and address. This will ensure that they are taken into account when designing  and hosting the website. Such legal requirements include (i) access requirements under disability discrimination legislation, (ii) consent requirements under data protection legislation and/or the requirements of distance selling legislation (iii) information provision requirements and (iv) E-privacy directive recent changes reflecting the use of cookies.
• Ownership of what is developed: The company will want to ensure that if it develops (or pay the website development) any specific features or applications that differentiate the website or any design or other material, it owns all rights in them. The type of intellectual property that applies to various website elements is mainly copyright. By law, the first creator of the materials (i.e. the website designer or its consultant, sub-contractor etc who created the materials), will be the owner of the copyright in such materials (text, images, music, software, trade mark) unless it has signed an agreement transferring such rights to the company. The company by ensuring that it owns or has the right to exploit the copyright and related rights in all aspects of the web pages (including the overall design, any specially written text or graphics, and the coded version of the pages), can then transfer the website to another designer/developer to complete the project where, for example, the current designer/developer is not performing, use it as leverage to increase the value of its company or seek investment. Intellectual property rights are assets of the company even if they are “intangible” or as I would say very often “invisible”.

In most cases, there is no reason why the website designer should not agree to transfer ownership of the intellectual property rights developed specifically for the company, or to license such rights where the website designer is not in a position to grant an outright transfer (such as where third party works are included in the site content). However, the website designer should ensure that it does not transfer to the company ownership of any intellectual property in any underlying software of the designer not specifically developed for the company but needed to operate the website. In such a case, the designer will grant a licence permitting the company to use the relevant works in the operation of the website. However, the company must be careful to ensure that it obtains all the necessary rights so that it is not restricted in the operation of the website (whether by territory, time or other restrictions).

• Timetable: the company should seek to ensure that website designers and website developers are contractually bound to meet key milestones, in particular the date for launch of the website and what are the remedies in the event such key  milestones are not met.
• A budget and payment options: need to be agreed at the outset as costs will vary depending on the complexity of the proposed website, the types of graphics required and so on and this very often will be the first point where a dispute may start between the parties. Payment may be on a fixed-fee or time-and-materials basis (or a combination of both)
• Acceptance tests: the company will want to satisfy itself that the website (or websites if more than one) performs on the designated servers in accordance with the company's functional and performance specification, and can deal with anticipated usage levels.
• IPRs infringement. The company should insist to receive from the designer/developer some protection against claims that any content or software produced by the website designer in the course of the website development infringes the rights of third parties. This could arise either because the website designer inadvertently uses material it has developed for (and assigned to) other customers, or where it seeks to incorporate third party works in the design (such as photographs, video clips or music) for which no permissions have been obtained. The company should seek such protection in the form of an indemnity (and insurance) to cover any liabilities (including for copyright infringement) that might arise.  
• Maintenance, support and website hosting agreements. It is important to consider how the website will be maintained and updated after it has been launched, including:
• Availability on the designated server, security features, maintenance and support of the site (such as updating content or help-desk support), back-up and disaster recovery or statistics relating to usage of the site;
• Response times;
• Uptime requirements;
• Liability for website content;
• Hosting fees;
• Data collected;
• Policing content: if the website has message board or chat-room facilities in order to avoid or limit liability, it will be important to ensure that there are obligations in the agreement for the removal of infringing material from the site as quickly as possible.