The burst of the Internet bubble has probably contributed to the end of the belief that the mere fact of making business on the Internet could allow a rapid enrichment.
However, it is true that the presence on the Internet and the capacity of web sites to increase of sales have become an essential instrument of competition between companies.
The success of a web site depends on several variables: the technical aspect (where to host one’s site, which web-editor to use, etc….), the content of a web site, its presentation as well as the if the same is users’ friendly, the ability of its owner to develop the site and finally its promotion.
From a legal point of view, the conclusion of contract of design and maintenance, which is balanced and defines clearly the rights and obligations of the parties, will also be a factor for success.
In this respect, the contract of web sites’ design has some particularities, which require a certain attention.
We will examine herein below some of the said particularities.
1. Qualification of contract
The contract on the design of a web site is mainly subject to the rules applying to enterprise contracts, which are quite partially regulated by the civil Code.
The rules of ordinary law on the contractual obligations and practices play therefore an essential role.
As to its structure, the contract on the design of a web site is similar to contracts on the design of tailor-made software.
2. Object of the contract
Considering the multiplicity of various interventions required for the creation of a web site it is important to define the exact content of the requested services.
In practice, if several specialists should normally intervene to implement a web site, it is important to assure that their intervention is co-ordinated.
In this respect, it is advisable to appeal to a specialist in the design of sites who will also be responsible for the co-ordination and the consulting on the choices to be made.
In any case, the drawing up by the customer of the specifications (“cahier des charges”) in which the latter will list his needs appears to be necessary for the definition of the object of the contract.
To determine its needs the customer should address the following questions :
– To what will serve the web site to be created?
Is it intended only to present the business and its products?
Should it allow an interaction with the users and the communication of updated information? Will it propose online sales of services or goods?
Does it also have to allow a better internal communication to the holder of the site and allow him to carry out certain works as for example accounting?
– What are the resources of the company?
– What is the budget of the company for the creation of the web site and its subsequent maintenance?
– Which are the persons within the company to be appointed to the performance of the project and the ones who will be in particular in charge of the follow up of the function of the site (updates, response to customers’ e-mails or to orders placed online…)?
– What are the technical means of the company (Internet access, server’s etc.)?
– What are the elements in terms of contents the company already has (text, visual, etc…)?
According to the answer to these questions, the customer will be able to determine better the objectives of his site, the functions and its positioning among the competitors’ sites.
Even if the site’s designer has, undeniably, in accordance with the ordinary law, the obligation to advise his customers on the different points, it is advisable to specify in the contract that the designer should assist the customer in defining his needs and that the suggested site meets his needs.
On the other hand, the designer of the site would better ask the customer to define expressly his needs.
3. Co-operation between the parties and content of the site
Given that the realisation of the web site is a tailor-made work, its success depends on the co-operation between the parties.
If the ordinary law provides for the provider of the service, as mentioned above, an obligation to advise and for the customer, an obligation to co-operate, it is still useful to specify the content of co-operation, by defining in detail the extent of the obligation of co-operation :
– Method of work to use, the contact persons, how the parties will communicate,
– The information to be provided by the customer (texts, photos, videos, etc.); Should the same be worked out by the provider of the service? Does the owner of the site, with regard to information from third parties, have all the necessary intellectual property rights for the information to be reproduced on the site?
4. Establishment of a timetable for the realisation of the site
The realisation of a tailor-made site is effected in several stages. It is strongly recommended to provide in the contract for a timetable of the works to be carried out for the putting online of the site.
The designer could, however, request to not be obliged to respect the agreed timetable insofar as the customer provides him in good time with the elements and information which are necessary for the site’s design.
The main stages of the realisation of a site could be :
– the drawing up of the specifications (“cahier des charges”),
– the establishment by the designer of the technical and operational specifications translating the specifications of the customers into a technical module.
At this stage, it is advisable for the customer to ask the designer to present to him the architecture of the site so as to enable him to have a clear view of the content of the site including the offered services, the subdivisions of the site and the way to have access to information,
– the drawing up of a model in a form of a table and a plan demonstrating the graphics of the site and the sequence of screens,
– the development of a web site which consists in the creation of the site strictly speaking and the chosen language, which will end by the conformity tests of the site in intranet and then online.
– In this regard, it should be checked if the site is accessible using the most common web browsers (Explorer, Netscape, etc.) in their various versions, and that it works on different platforms (Windows, MacOS, Linux),
– the period of the contractual guarantee (see below),
– the maintenance (see below).
Furthermore, the work methods to validate the realisation of the different stages, as in particular to provide a provisional reception and a definitive one should be provided in the contract.
5. The intellectual property rights on the site
With respect to intellectual property rights, the design of a web site is protected, on the one hand, by the law of 30 June
1994 on copyright and related rights as to its originality and, on the other hand, by the law of 31 August 1998 transposing into the Belgian law the European Directive of 11 March 1996 on the legal protection of the databases with regard to the work for the classification and the layout of the information and the data of the site.
The first law protects “the author” of the original concepts created in the context of the design of the site (in particular the graphics designer) while the second protects the financial “developer” of the work of classification and layout carried out in this context.
If it seems almost not questionable that the contract on the design of a web site grants to the customer the right to use the site, however, the designers of the site will remain the owners of all the intellectual property rights related to their creation, unless the contract provides otherwise.
On the contrary, the customer will be, in principle, owner of the databases, which were created in the context of the project he financed.
To avoid any dispute, it is advisable to provide for the rights of the customer on his site, and in particular with regard to its use, the possibility to modify and eventually to market it.
6. Legal compliance of the site
A web site is subject to numerous pieces of legislation. As for example the law on trade practices (e.g. the obligation to mention the word “advertisement”), the law on the protection of private life (the “cookies” and/of forms used in certain sites imposing a series of formalist and behavioural obligations or the law on e-commerce (which imposed a contractual procedure or the information obligations).
7. The domain name
It is an obligation of the designer to deposit the chosen domain name.
However, the contact should provide clearly that the registration of the domain name should be made in his name.
8. The hosting of a web site and its security
The web sites are hosted by specialised companies, which provide to the owners of a site the space in their servers and offer various services to allow their back up and the continuity of the access.
If the designer of the site is responsible for the hosting of the site, it is advisable to assure that this hosting meets the needs of the owner of the site, and notably in terms of evolution of the site :
– Does the hosting allow the online commerce?
– Does it allow the evolution of the site?
– On which conditions the owner of the site may change the host and transfer the domain name?
– Have all measures been taken so as to secure the site against hackers and viruses and the back ups of the site are they carried out regularly?
9. Delivery and liabilities
The designer of the site has the obligation to deliver a site which is in conformity with the specifications promised not only from the technical point of view but also the operational one, namely the delivered object should allow the performance of the objectives fixed by the customer as provided for in the contract.
In this regard, it should be noted that pursuant to the obligation of advice, the supplier of IT goods should also be informed of the needs of the customer and to propose products and services satisfying such needs.
The contract on the design of a web site can be analysed as an enterprise contract, the liability on concealed defects rests on the interpretation of the supposed will of the parties and, in particular, of the promoter according which he cannot have accepted defaults he ignored and that he could not detected at the moment of the acceptance of the delivered site.
It would, therefore, be useful to provide for a double exception: a provisional one, on the acknowledgement of the completion of the works, and a definitive one, on the acknowledgement of the acceptance.
Furthermore, it is possible to make a further distinction of the provisional reception in two kinds of operations: the control of the conformity on tests (the server is offline) and the control of the conformity in operation.
In any case, one should make sure that the maintenance correction, which should be contractually agreed, commences only after the acceptance so as to avoid the payment of the corrections, which should have been provided for free before the acceptance.
The answer to the question if it is also applicable to the enterprise contacts, the principle according which the professional seller is presumed to be of bad faith on the basis of the particular capabilities to detect the defects and, that he cannot, therefore, call upon the clauses of limitation of liability, has not been given yet in case-law.
The scholars appear, however, to reject the extension of this principle to enterprise contracts.
Consequently, it would be cautious to provide in the contract which are the defects covered and how the same will be remedied.
However, it may be difficult to determine if the operation of an Internet site is defective or not, (see for example for the rapidity of access to the site or if its owner will be able to manage it as he wishes), and that all the more so since the designer of the site has an obligation of means.
The appreciation of the liability of the designer of the site, could be one of results or of means, according to the way the obligations incumbent upon him are specified.
The more the obligations incumbent upon him are specified the more the designer of the site will have an obligation of result.
In this respect, if according to the owner of the site there are some essential functions thereof, it is advisable to specify in the agreement that for this function the obligation of the designer is an obligation of result.
10. Maintenance of the site
Regardless of the quality of a site, its success depends largely on the ability of its owner to make it survive.
As we explained herein above, the web site should be designed in accordance with the objectives fixed by its owner, but also his resources.
It is, therefore, pointless, to provide for numerous functions if the owner of the site cannot follow them up, either because a continuous update is indicated or because responses to the users and follow up of the placed orders is required.
Consequently, it is important that the owner of the site has provided for the internal and external organisation required allowing the site to function according to his wish.
In this respect, regardless the importance of the internal resources of the owner of the site, this latter should provide for conditions, notably financial and in terms of time-limits for intervention, under which the designer of the web site will carry out the maintenance thereof, which as for tailor-made software covers a remedial, an adaptation and an update/ upgrade maintenance.
To avoid being depend on the designer, it is also advisable to provide clearly in the contract for the conditions on which the source codes and the script lines will be modified or transferred.
11. The promotion of the site
The success of a site depends not only on its quality but mainly on its promotion both on the Internet by its registration in search engines and specialised directories and on the paper mediums (writing paper, brochures).
These services are actually usually carried out by specialised companies, but the web site designer often have some knowledge in this field and can guide usefully the owner of the site and the type of reference system to chose according to the objectives fixed.
If the obligations regarding the reference system will only be efficient if they are of result (for example, the positioning of the site in search engines), the parties should make sure that they specify the content of the work and the expected result.
12. Financial aids
Some state authorities grant financial aids for the creation of a web site. Consequently, it advisable to consult with the competent authorities according to the place your business is located.