By: Sharon Toerek, Principal, Toerek Law and Author, the Agency Protection System

One of the areas where agencies struggle is using a solid agreement for client website development work. In this post, I’ll share with you my top tips for creating a website development agreement that can help protect your agency. We’ll cover:

  1. When to use a website development agreement with a client
  2. Some of the protections an agreement will provide for your agency
  3. Information your agency needs to collect and include in the agreement
  4. Core legal sections you should always include in this agreement

When to use a website development agreement?

I recommend that your agency have a Website Development Agreement ready to use when your agency is engaged by a client for website development, including mobile applications or other development work. The Development Agreement is the tool that documents all the legal terms and conditions of the agency’s relationship with its client, such as intellectual property ownership, legal responsibilities and liabilities, and performance obligations of the parties.

Also, I recommend you create an Exhibit to the Development Agreement (such as a Proposal or Scope of Work document) to describe business specifics related to timelines, milestones, and fees and payment terms that are not addressed in the website development agreement itself.

NOTE that you and your agency team might decide, alternatively, to use a Master Agency Services Agreement for a website or mobile application development project, particularly if the website being built is only one of a number of projects your agency will perform for the client. As long as you cover the appropriate bases in the Agreement, it’s OK to handle it this way. In fact, my Agency Protection System includes a Master Agency Service Agreement you can customize for this purpose. You can learn more about that here.

What will a website development agreement do for your agency?

  • Defines the website-specific areas of work to be performed by your agency related to the site, including: content development, site design and production, programming, and domain name acquisition.
  • Describes all fees associated with the different components of the development project.
  • Defines all deliverables due from your agency to the client for the site.
  • Defines all intellectual property ownership provisions. This includes transfer of rights in the completed work from your agency to your client upon payment. (Important exception: the ownership for much of the underlying code for the site should be licensed, not assigned, to your client).
  • Describes all testing and acceptance procedures for the site prior to launch.
  • Contains all appropriate restrictive covenants, like confidentiality and liability limitations.

Typically, a Website Development Agreement does not necessarily address issues such as post-launch revisions, ongoing maintenance, or hosting. You can certainly include them, but if you do, make sure they are separately categorized and described in the Development Agreement. These projects can also be handled in a separate Website Maintenance or Website Hosting Agreement, which is the approach I typically recommend to agencies.

What information does your agency need to complete the Website Development Agreement?

  • Description of the project (Timelines, milestones, size and scope of site, features of the site, etc). Some of this appears in the development agreement and some of it can be included in the attached proposal or scope of work document.
  • Responsibilities of both parties (work to be performed by Agency, approval and communication responsibilities of Client).
  • Business terms such as fees, billings, and payment.

Additionally, your agreement should also include the following core legal sections:

  • Term and length of agreement, including Termination provisions
  • Agency/Developer deliverables
  • Content to be provided by the site owner
  • Delivery, acceptance, and installation of web pages by the Client
  • Ownership by site owner of intellectual property the agency creates – when and how
  • Retention by the agency of its own intellectual property used in the Client site
  • Indemnification of the agency by the Client
  • Confidentiality and nondisclosure
  • Client approvals and Client responsibilities
  • Warranties of site or app performance, or a disclaimer or limitation of warranties
  • Insurance requirements

What’s the easiest way to make sure the Agency doesn’t miss something here? By being proactive and having a toolkit of ready legal agreements, templates and checklists prepared and available for website development projects as well as the many other routine legal matters the Agency will face regularly.

I hope you found this information helpful! If you did, I encourage you to download my free Agency-Client Contract Review Checklist. It has been my experience that every agency struggles, at one time or another, with client contracts, whether for website development or other projects. So I created a free checklist with helpful tips for reviewing agreements as well as issues to watch for when a client offers their own contract for your agency to sign. You can download it here as well as some other free tools.