Web Site Design and Development

Your website is the first impression that many potential customers will have of your business. For that reason, it is crucial that the site be visually appealing, easy to navigate, and function quickly and smoothly. With a well designed and developed website, visitors will linger, browse and come back often. A poor website will have the opposite effect, sending customers racing out the virtual door, often never to return.

Although often used interchangeably, website “design” and “development” are technically two different terms. Website design refers to how a site looks and operates on the surface—its graphic appearance and usability. It also entails making the website “search engine friendly”, i.e. using key words and other techniques that cause your site to appear prominently when customers are searching the Internet for what you sell.

Website development refers to the underlying computer code that allows the website to look and operate the way the designer intended. The software that must be programmed to operate a website is extensive. It must control everything from the ability to enlarge a photograph to links to other websites to accepting credit cards.

As a result, most businesses that are just starting out don’t have the technical capability or capacity to program website software, but fortunately they don’t have to. For a simple website, downloadable design software is available for which the development work has already been done. For more complex sites, there are many website designers and developers available and willing to perform the service for a fee.

If your business has limited resources and you just want a very basic Internet presence that will simply perform the function of making potential customers aware of the goods and services you offer, as well as provide your location and contact information, then you may want to go online and download a proven website design software package to create your own site.

Be aware, however, that even a website design program that performs all of the functions you desire will require a significant amount of thought, as well as trial and error, if you want your site to be a successful marketing and sales tool for your business. You will need to consider carefully the appearance of the site and how the visitors will interact with the information you provide. To realize the importance of this, just think about some of the websites you have visited that had poor graphics and difficult to read text, and were complicated and counter-intuitive to interface with. This type of website screams out “unprofessional” and reflects poorly on the business involved.

For these reasons, even if you are starting a new business it is probably worth the investment to hire an experienced website designer and developer to help you create an easy to use site that will attract and retain customers. Keep in mind when looking at candidates that you need a person or a team who can perform both the design and development functions. A website designer who dabbles in development, or vice versa, is not good enough. You need an expert in both areas.

In searching for a website designer and/or developer, you should consider a range of issues, from their experience and skill level to their responsiveness and ability to listen and communicate. When analyzing whether a candidate is the right fit, take a close look at his or her portfolio of websites, particularly those that are similar to your own specifications. Get your hands dirty with these sites and gage your own reactions as if you were a potential customer.

For example, ask yourself these questions when reviewing the portfolio sites: Do you find the website design user friendly? Is it easy to find all of the information you desire and return to pages you have previously viewed? Is the site uncluttered and visually appealing? Is the text easy to read? Are the graphics clear and relevant? Do you feel like you can quickly learn about what the company has to offer and the features of its product or services? With a good designer, the answer to all of these questions will be “yes”.

Also pay attention to the functionality and production values of the site. Is it fast and efficient? Do the links operate properly? Are the graphics, animation, sound, etc. of high quality? If you are able to interface with the site quickly and easily without even thinking about how it is functioning, then the developer has done a good job. If there are glitches, delays and unprofessional functions and appearances that frustrate your enjoyment and use of the site, then you should look for another developer.

In addition to reviewing a candidate’s portfolio, get referrals and talk to previous customers about whether the designer/developer readily understood the needs of their business and created a site that added significant value to their operations. In this respect, look for designer/developers who have worked on sites for other companies in your line of business. Hopefully, they will already be familiar with your target audience and how best to attract and retain customers.

Another thing that should be considered is whether to hire a big design and development firm or a freelance designer/developer. There are pros and cons to both, but whatever you do, don’t put your business in the hands of an amateur. Remember, your website will often be your first point of contact with potential customers. The designer/developer that you hire could make or break the impression they have of your business.

Once you’ve selected a website designer and/or developer, you need to put together a Website Design and Development Agreement. Typical provisions in this agreement include:
  • Development of the website
  • Acceptance of the deliverables
  • Use of third party products and source codes
  • Project management
  • Payment
  • Warranties
  • Limitation of remedies and liability
  • Intellectual property rights
  • Site content
  • Data protection
  • Term and termination
  • Change Orders
  • Force majeure
  • Confidentiality
  • Audit

The development of the website provisions should be specified in great detail, either in the body of the Website Design and Development Agreement or in attached schedules. Most often, the design and development work will be broken down into phases, with explicit instructions as to the work that will be performed during each phase and what performance levels must be achieved.

Following the completion of each phase, there should be an acceptance test to make sure that the specifications are being met and the project is on track. If the customer feels that the deliverable for a given phase has not met the specifications outlined in the development schedule, then it will provide the designer/developer with its objections and the cure provisions will kick in. If the designer/developer fails to cure the deficiencies, then the customer will either be able to terminate the agreement or reduce the fees, depending on the negotiated terms.

In addition to allowing the periodic testing of the website in progress, the designer/developer should represent and warrant that the final product will be free from defects and will operate according to specifications and up to the required performance levels.

Payment for the design and development work will normally track the acceptance procedure, with a partial payment to be made after acceptance of each phase. Most often, a designer/developer is paid a fixed fee for the work performed, although sometimes he or she is paid on a time plus materials basis. Another item that must be agreed to and specified is the process for changing the project specifications, either at the request of the customer or the designer.

Some of the trickiest issues to negotiate in a Website Design and Development Agreement are the rights and liabilities related to intellectual property. A fully developed website will include many different forms of copyrighted software and content, as well as trade marks and possibly even patented material. Some of this is software and content will be developed or provided by the designer/developer, some will come from the customer, and some will be sourced from third parties.

The first thing that must be decided, and clearly specified in the Website Design and Development Agreement, is who owns what part of the end product and the pieces used to put it together. As the customer, you will want to own everything associated with the website, and intuitively may feel that since you paid for the design and development work, you already own the end result. But this will not be the case unless the agreement says so.

The person who creates the design, software code, text, graphics, music, etc. is the owner of the copyright in that material. So initially at least, the designer/developer will own what he or she creates for your website. This includes everything from the overall website design to the specific code to the content. Therefore, whatever you wish to own must be specifically assigned to you in the Website Design and Development Agreement, and it is in your best interest to obtain this assignment so you have complete control over your website going forward.

However, there may be certain portions of the site for which the designer/developer will demand ownership. For example, the designer/developer may have previously created some basic design templates, or developed code that performs certain functions, that he or she reuses over and over for different websites. If this is the case, however, then you need to receive a perpetual, non-cancellable, worldwide license to use this material in your website.

In addition, the designer/developer may incorporate software programs and content in your website that is owned by third parties. If so, then you once again need to make sure that you have the proper license to use the material in your website without infringing the third party’s copyright, trade mark, patent, or other intellectual property rights.

In this respect, the designer/developer should warrant in the Website Design and Development Agreement that the website delivered will not infringe on the intellectual property rights of a third party, and agree to indemnify you for damages if it does so. Conversely, you will be required to provide the same warranty and indemnification with respect to material that you provide for the website. Another issue that will then need to be discussed is whether there will be a cap on liability, and whether damages for lost business and profits will be recoverable in addition to what was paid to the designer/developer.

Once the website is developed, the question is who will host, maintain, and have the ability to alter the site going forward. Some designer/developers can be contracted to perform some or all of these services, in which case the appropriate provisions can be included in the Website Design and Development Agreement, or in a separate contract for future services. Website owners who have qualified employees may also do some or all of the maintenance and content alteration work itself, while hiring a separate web hosting service where the site will reside.

If it sounds like creating a website will take a lot of thought, time, effort and money, it probably will if you want a site that adds value to your business. There are times, however, when it is possible and makes sense to buy an existing website rather than developing one from scratch.

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