Web-site Agreements

Most "Cyberspace" issues are best dealt with legally as metaphors of the real world. Thus, whenever the (prospective) owner of a Web site chooses to entrust its development and maintenance to a third party, the relevant contract is rather similar in nature to development and maintenance contracts related to more tangible sites, such as department stores, offices, factories or industrial plants.

Actually, under Italian law, these contracts are in the same class as those pertaining to construction and are considered to be an "appalto" (locatio operis), that is a contract by which, according to Art. 1655 of the Italian Civil Code, "a party undertakes to perform a piece of work or render services, organising the necessary means and operating at his own risk, for a price".

While the distinction with regard to the direct employment of the people involved is obvious, the relationship between the owner/employer and the contractor is also very different from that between a vendor and a purchaser of a given asset, no matter how "turn-key" the developmnent contract can be.

A number of specific issues arise which must be regulated by the contract, and are in many Civil Law jurisdictions expressly resolved by law unless otherwise agreed by the parties. For example, under Italian law, a contractor is not allowed to subcontract the performance of his work unless authorised by the employer, and is expected to supply all the relevant "materials". Variations to plans must be authorised by the employer in writing, and unless they are "necessary" or "requested by the employer" no further compensation is owed by the latter if the price has been determined in a lump sum. The contractor must also comply with the variations requested by the employer whenever they do not involve considerable changes in the nature and proportion of the works to be performed.

Moreover, the employer, before taking delivery, has to be right to test and verify the completed work or its parts, and in the latter case the contractor is ordinarily entitled to payment in proportion to the work already accomplished. The tests and the subsequent acceptance do not release the contractor in full, but the employer is bound under Italian law to notify the contractor any non-conformity or defects whithin sixty days from the discovery thereof. Finally, the contractor is liable for the destruction or deterioration of the work before delivery, and the employer can withdraw from the contract even after...

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