Caveat emptor is Latin for “buyer beware.” When it comes to signing agreements for your Web marketing program, always read the fine print or you may regret it later. Those regrets may come in the form of expensive legal bills to get you out of contractual obligations you did not know you had.
A contract is a written document that formalizes an agreement entered into between two or more parties, relating to a specific topic or subject. In essence, it is a printed version of a verbal agreement, or a handshake put to paper. A written contract that is signed by all parties and properly executed is enforceable and legally binding. A verbal agreement has no documentation or formal proof of its existence.
In order for a contract to be enforceable under the law, there are several elements it needs to have. The first is mutual consent—both parties need to have a mutual understanding of what the contract covers in order to avoid any potential conflicts. It has to include an offer and an acceptance of that offer.
One party’s acceptance of that offer is a necessary part of creating a binding contract. It also needs to include an exchange of something of value; in legalese, that would be called “consideration.” Typically, this would consist of an exchange of fees for services or products.
Next, the contract terms will usually describe performance or delivery of the action defined by the contract. For example, “Dr John Smith” or the Client agrees to pay “Web Company” or the Vendor the agreed-upon amount within a specified time period for performing the duties itemized in the agreement.
Finally, it is implicit within all contracts that the parties are acting in good faith, or the contract may not be entirely enforceable. However, “good faith” is one of the vagaries of legal jargon. For example, if a contract states that you are requisitioning a blog with daily posts, you should get that rather than a monthly e-blast program.
When intellectual property is developed as part of a work-for-hire type of agreement, its ownership is commonly identified as belonging to the party or “Client” who has hired the “Vendor.” For example, if you chose an Internet domain name (the dot-com for your practice), such as “johnsmithaesthetics.com,” and you hire a Web designer to create the Web site and you supply the original content, who owns it? Most doctors would respond, “I do.” Some of them would be wrong.
Depending on the specified terms in the contract they signed, neither the domain name nor the files may be owned by the practice at all. If the Web design firm purchased your domain name and hosts the site for you—that is, the site resides on their Web server—then it essentially hold all the cards.
Upon further investigation, you may find that the domain name of your practice is not yours at all, but rather your Web designer has listed it in his or her name and not yours. If that is the case, you may find yourself inextricably linked with that Web designer, whether you want to be or not. You may be forced into a situation in which you have to buy back your own domain name to control it, or seek legal representation to get you out of the contract you signed without thoroughly examining the fine print.
Search engine optimization (SEO) is a term that tends to instill fear and awe in the hearts and minds of many physicians. Some Web designers will say that SEO involves a proprietary, magic formula that no one else knows. Doctors are often led to believe that if they revise their content, or switch teams, then their SEO will disappear and their entire practice will shrivel up and die. There have been cases of blatant abuse, threats, extortion, and other unscrupulous tactics used by some aggressive Web marketing groups to lock their physician clients into long-term airtight agreements.
On The Web!
See also "Ethical Issues in Search Engine Optimization" by Charles Benninghoff in the August 2008 issue of PSP.
For example, one unsuspecting surgeon was shocked to learn that the domain name he had invested tens of thousands of dollars to optimize on Google over the course of 5 years did not belong to him at all. His Webmaster asked for a large sum to transfer ownership, and threatened that if the surgeon did not pay, he would sell the domain name to a competitor.
If you are unhappy with the performance, pricing, or service of a vendor, you should be able to take your business elsewhere.
When it comes to Web designers and Web marketers, read the fine print, consult an attorney before you sign, and always make sure that you are the owner of your intellectual property. Your goal is to hire a Web marketing company, not to marry one.
Wendy Lewis is president of Wendy Lewis & Co Ltd Global Aesthetics Consultancy, author of 10 books, and a regular contributor to PSP. She can be reached at . Follow her on twitter.com/cosmeticmed.