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Developing a Website: Contractual Considerations


When starting a business, most business owners will find it beneficial to have a website where consumers can go to get a better understanding of what your business is about and the services you have to offer. Sometimes, a business is completely e-commerce so a website is the main source of business to consumer (B2C) interaction and transaction. Other times, a website is only a complimentary aspect of a business and added source of revenue, for example retail locations that have online stores. However, what most business owners don't take into consideration when starting and operating a website is the contractual and legal obligations.

Contractual Agreements

When starting and operating a website for your business, whether the business is completely e-commerce or if it is only a compliment to your business model, you should be aware of the contractual obligations around operating a website or e-commerce platform.

Website Design and Development Agreements

One of the first things a business owner should establish when starting to grow their online business is how will the website be designed and how will it be constructed. Most business owners will be able to design a basic website on their own while keep costs low. However, some websites that require technical design will require a website design professional. If this is the case, it is important to ensure you enter into a website development agreement with the website designer. This will ensure that the business owner will get the website design and technicalities they require by imposing an obligation on the website professional to create the website according to the business's specifications.

Website Content Licenses

When developing or designing a website, it is important to establish the content that may be necessary to make the website operate smoothly and attract consumers while being legally compliant. You can check out our previous article on Launching your (Legally Compliant) E-Commerce Platform for more information about being legally compliant with your e-commerce platform. This may include text design, photographs, software development, etc. In the case where the intellectual property rights of third-parties are involved, for example the website designer's software or a photographer's photos, the business owner will require a copyright license in order to use the applicable content on their website to ensure that they avoid infringing any third-party's intellectual property rights.

Website Hosting Agreements

After all the fun of designing and developing a website is over, you must deal with the not so fun part; finding a host for your website. Once you have established a website for your business, the website will need to be "hosted" by a third-party server. This server will publish and host your website and its content including the website design, URL, etc. on the web and allow for the public to view your website and its awesome design and functions. For some business owners, it is preferred that they enter into an agreement with the third-party server or host to ensure that the server understands the obligation of making the website available on the internet for the public to access.

Cookies

We're not talking Chips Ahoy chocolate chip cookies. We're talking about those pop-up cookies that collect user information such as user names, addresses, email details, passwords and website preferences. Since this may be a violation to one's privacy rights, users must consent to accept cookies when browsing the internet. The "acceptance" of cookies is a way of entering into an agreement with the internet, consenting that your information can be used. You might think this is crazy, but almost everyone consents to the usage of personal information without even realizing. Its like when you have your password saved on your laptop for certain websites. You have essentially entered into an agreement with that website allowing them to store your information on the website.

Terms and Conditions

You know the small print on a website? They may be small, but they’re mighty! Those are terms and conditions. It is preferred that a business owner includes terms and conditions on their website that may address any dealings with the use of the website and its content. This may include protecting against unauthorized linking to the website, unauthorized usage of the content such as text or photographs, or it may even include the restriction of an potential threat or liability to visitors to the site (including cookies). Some key issues that should be addressed in a website's terms and conditions are:

  1. Incorporation and contract formation

  2. License scope

  3. Visitor content

  4. Security

  5. Linking

  6. Disclaimer

Some legal considerations that should also be included to ensure compliance with applicable legislation are as follows:

  1. Access requirements for persons with disabilities such as the Accessibility for Ontarians with Disabilities Act

  2. the Personal Information Protection and Electronic Documents Act, (PIPEDA) and certain provincial privacy legislation

  3. Canada’s Anti-Spam Law (CASL)

  4. The requirements of e-commerce legislation such as the Electronic Commerce Act

Froese Law is your ally to success. we are here to assist with any of your e-commerce or business needs. Contact us today here.

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Froese Law provides its Canadian law services by a professional corporation.  

Froese Law provides its U.S. legal services in affiliation with a U.S. based law firm.

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