Key Provisions in Web, App or SaaS Development Agreements

Establishing an online presence for your business can take many forms – websites, apps, blogs, social media, etc. While blogs and social media profiles are relatively easy to create, the website (or app) development process is considerably more complex, often requiring the assistance of a professional developer with the appropriate creative and technical know-how.

Developers can handle a range of needs for their clients, including page design, coding and functionality, and hosting and maintenance. When hiring a developer, it is important that the development agreement is drafted with specificity, particularly with regard to the scope of work agreed upon by the parties. Whether you hire an individual or a firm for this work, and regardless of the type of development work they will be doing (e.g., for a website, mobile app, SaaS product, etc.), you should consider including the following concepts in a comprehensive development agreement:

• Features and functionality
  Detailed descriptions (along with relevant technical specs) of the proposed deliverable’s
  • security features, 
  • accessibility standards, 
  • speed (load times), 
  • interoperability (e.g., what other systems, websites or tools does this need to work with), and
  • other important features like search engine optimization requirements.
• Timing, deadlines, milestones
  Expected completion dates or key milestones for each stage of the development process, as well as dates of delivery for all deliverables to be provided by the developer.
• Roles and responsibilities 
  Expectations for the buyer (content and branding inputs) and developer (what needs to be built or sourced from a third party, including any necessary licenses).
• Buyers’ approval rights
  Rights to review, test and approve features and functionality before payment is due, as well as to request revisions at no additional cost or to receive a refund.
• Developer qualifications
  Degree requirements, work experience, and other relevant background and expertise for all members of the development team assigned to do the work.
• Developer warranty
  A guarantee that the website will be free from viruses, malware, hidden tracking technology, back doors, or other defects; and a promise to repair or replace if necessary.
• Support services
  Post-delivery support to be provided by the developer at no additional cost, plus support service packages available for purchase for items outside the scope of the agreement. 
• Intellectual property rights
  The buyer should own everything created and delivered by the developer as “works for hire” under applicable copyright laws. This includes access to all files and administrative controls of all accounts relating to the website or app.
• Assignments
  To cover the possibility that IP rights do not automatically vest in the buyer as “works for hire,” the agreement could include an assignment all IP rights to the buyer from the developer, as well as the developer’s employees and contractors, especially if the development team includes workers outside the U.S.
• Indemnification
  The developer agrees to indemnify the buyer for any liability (e.g., if any of their deliverables infringe third party rights) or ownership disputes.
• Third party tools & open source software
  Specify whether or not third party tools (including open source) are permitted within the deliverables, and if so, list all permitted tools (i.e., only a mutually agreed list). Understanding the scope of third-party tools is important because the buyer typically cannot be given ownership rights over third party-created components.
• Other standard legal terms such as
  • Reps and warranties
  • Confidentiality
  • Liability for any subcontractor

When a development agreement is drafted with specificity, including the concepts described above, you are more likely to ensure a successful working relationship with your web developer or development team. It also helps to protects your investment in the finished product. If you would like assistance with a development agreement, please contact Stacey Heller at [email protected].

Stacey Heller is an experienced transactional attorney and has worked with companies in a variety of industries, including technology, retail, telecom, advertising, hospitality, and real estate and construction. Stacey regularly handles a broad range of work for her clients, from commercial agreements to real estate (commercial leasing and construction), as well as dispute resolution matters. Stacey can be reached at [email protected] or (703) 403-5347.