websites not war zones
“If you don’t have a website you’re not in the race!”
Matt Crouch Partner, Bartier Perry Solicitors

This catch-cry can be heard across the land. There is no denying the power and growing presence of the internet as a means of delivering information and conducting commerce. This is particularly so in the MICE sector, which is so heavily driven by marketing. Also, MICE players have an ever-present need to refresh their image and to re-invent themselves – so that arguably the adoption of “sexy” new technology and new approaches to business by MICE players has been faster and more widespread than in other sectors. I have no forensic evidence to support this assertion, but my MICE sector clients have certainly embraced e-commerce more readily than many other industry groups. Although the internet is hardly new to us, it remains surprising just how many websites can get their owners into a legal pickle, especially in the MICE sector. I theorise that there are two factors working in tandem to create a tendency to naïvety when it comes to e-commerce legal matters: first is the “lawyer-shyness” of which I have written in previous columns; second is the fact that the realm of cyber-space seems to have encouraged a more casual approach to legal issues. In this article, we’ll take a look at some of the issues that arise in contracting with a website developer. Next time we will look at website content and some of the more common legal traps for players once your site has been developed.

Unfortunately, the race to “web-enable” can be frustrating and disappointing. Without an appropriate contract with the website developer, you can ultimately be left wallowing with a half-finished website, a nasty dispute with the developer, a whopping bill and nothing to show for it – or worse, trying to recover payments already made. There is no point in simply meeting with a website developer and giving the green light to produce what is promised to be the snappiest website in the world unless the terms of your agreement with the developer are properly recorded. So, the first rule is: slow down! By rushing into a deal that is not properly documented, you will end up way behind. What, then, should a website development contract contain? The following is a basic check-list:

• Specifications! This is so often overlooked. The contract must have a description of what the website is to contain. Technical characteristics, functionality, interactivity, "look and feel", graphic and text content, meta-tags, navigational architecture and any relevant legal terminology should be agreed upon up front.

• When? It is important to make sure that the contract clearly specifies when the developer must complete the various stages.

• A testing regime so that you can assess whether you are getting what you are paying for. Preserve the right of final approval for all content and a right to require removal and substitution of content - you will be liable for it!• Fees - How much is to be paid and when? Ideally, you should pay one lump sum after successful testing, but the developer will probably want progress payments. If you agree to progress payments, link them to the achievement of well-defined milestones. Try to stack as much of the fee as possible to the end of the agreement when you are satisfied you have got what you are paying for.

• Get warranties! - Promises that the site will comply with the specifications and testing criteria and that the website will not infringe the copyright or other intellectual property of third parties. This is especially important if the developer is providing any of the website's content.

• Ensure that you are the owner of:the website itself;the domain name (eg "www.fabtravel.com.au"); andintellectual property in both the website software and content (the latter could include text, graphics, photographs, video, musical works and sound recordings).

• The developer should indemnify you to protect you from actions brought by third parties arising from a breach of the warranties. It's a good idea also to ensure that the developer has appropriate insurance to cover any such liability.• Ensure there is a right of termination to enable you to end the contract if the performance criteria or warranties are breached.

• Make sure that support/maintenance and ongoing assistance from the developer is covered. What response time is required if the website goes down? What will maintenance cost? Will there be fees if you want to change content or migrate to a more sophisticated website? The ongoing relationship is often overlooked once the site is up and running.If these (and other) issues are clearly dealt with in writing before work is commenced, you stand a better chance of getting the website you want. See a lawyer with a good understanding of such contracts and spend the little on prevention that will save a bundle on cure. Disputes with website developers can be as expensive and unpleasant as any other disputes – but in such cases an important cost to be considered is the loss of time in getting the website complete and to your satisfaction. In the race to web-enable, that is a delay and a cost most MICE businesses cannot afford.