New GDPR Data Processing Provisions and Usability Enhancements

September 2018

The novelty of a business website is long-gone. To say that it is standard practice is something of an understatement. From the simplest brochure website to a fully-fledged e-commerce platform for goods, services, and digital content, most websites have one particular need in common: someone to design and make them. For all the DIY platforms out there, the bespoke approach is still going strong.

As with any kind of business relationship, having the right contract in place to cover the design and development of a website is important. Not only are key details such as the obligations of the client and developer covered, but so too are other vital things such as the ownership of intellectual property. Nothing should be left open to question. Who will own the website when it is finished? Who bears responsibility for IP infringement claims relating to material provided by one party or the other and will they help the party being threatened with proceedings? How will personal data be handled and by whom? Will the developer have access to a customer database, for example, while building the client’s new website? The questions go on, and it is important to think about answers to all of them before going ahead.

Updated Documents – Data Processing and More

A number of our website design and development templates have received updates this month. Among the most important changes is the addition to each document of comprehensive new data processing provisions designed to cover any situation in which a client will be handing over personal data to a developer for processing. The new provisions are written with DPA 2018 and GDPR compliance in mind. The data processing clause is optional, of course, as personal data processing of this kind will not always come into play. Furthermore, instead of using the ‘full-fat’ version of the clause, a simpler cross-reference to a separate data processing agreement may be chosen instead. Such an approach may be preferable where more significant and/or complex processing is being undertaken.

We have also taken this opportunity to streamline these templates. The important particulars such as the ‘project specification’ and details of fees and payments remain for you to determine and attach as schedules. Other provisions in the documents, however, have been made clearer and easier to use. New provisions have also been added, including data protection, the aforementioned data processing, and provisions covering acceptance testing.

It is also now easier to choose between the different documents. The former “+ provision of related software” and “+ assignment of related software” variants of the documents now take the same form as the standard design and development agreements and come in two simple flavours, each adding provisions governing the development of an additional support ‘toolkit’ by the developer, one drafted as a ‘pro-client’ version, the other as a ‘pro-developer’ version. The differences between these versions have also been made clearer and more useful.

Website Development and Hosting Updates Coming Soon

These updates will soon be followed with updates to our web development and hosting agreements. As with the documents already updated, a standard form will be adopted, with additional new provisions covering data processing, data protection, and the Security of Network & Information Systems Regulations 2018 (aka ‘NIS Regulations’). Stay tuned for our October updates!

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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