|Client says my terms do not apply to them|
Should I be worried?
Here is the short version as this issue has been going on for a while now (about three days).
A client was referred to me via a past client. I quoted them $x amount of dollars for a redesign of their current site plus $x amount of dollars per additional page, they agreed. I have this email saved.
On my site th TOS states 50% of the payment is due up front and the second 50% after it's published.
They are not willing to pay the second %50 until about three weeks after the site has been published to insure it doesn't have any bugs, even though it's on a testing server right now.
I then point out the part of my TOS that talks about the payment terms and they are saying it does not apply to them because they were refered to me via another person and because I did not show them the terms of service. I did NOT email it to them but it's on my website and I included my website link in my signature.
They are also saying that I DID enter an agreement with them when I agreed to work with them, I signed nothing, all communication has been via email only.
After asking them to provide the exact email where they stated I was entering into an agreement and where I agreed to such an agreement I get this reply.
|< paraphrased - no email quotes per TOS [webmasterworld.com] > |
Understand how a court would see it... what contracts and agreements are. Then look at the facts of our interaction, and your request doesn't make sense.
You did the work and we paid you to do a job....the emails between us demonstrate that...and a third party is aware that you were building our site. Do you honestly believe anyone would question that an agreement existed?
Also, I sent them all the work I did up to this point and offered to refund their money in monthly payments and they would not accept.
They claim they are going to get a lawyer but a few things in their emails hint that they MAY be bluffing.
I am not trying to rip anyone off, I just refuse to publish a site before getting paid but they are saying my TOS doesn't apply because I didn't send it to them or give them the direct link but my website link which contains my TOS was placed in my signature when I emailed them or replied to their emails.
Any advice at all please?
[edited by: tedster at 3:14 am (utc) on Mar. 1, 2009]
They have a point. Clearly work was being performed, indicating you had agreed to work with them.
You should *always* have a signed agreement which outlines the scope of the project, project completion and payment timelines, as well as your terms of service. Simply depending on a link in your email signature isn't adequate enough.
Failing that, I don't see that you have an option other than wait the three weeks and collect payment then.
To be honest I can see their point. They may not haave even been to your site, I guess this all depends on how the deal was done, was it all email ect.
One approach you could try is explaing to them you have a standard way of doing business. What you are sending them is a requst for payment, that needs to be paid, Let them know that you are a business and not a contractor therefore they don't dictate payment schedules.
Although in this case I think you may end up needing to wait. Just be sure to send a full terms and conditions email to future clients.
Regarding this clients, unless the extra wait is going to cause you hardship it may be best to simpy wait it out, if there is any "bad blood" between you and the client they may not use you again.
Unfortunately I would have to agree with the others. If this went to court I think you would lose because you did not actually supply terms and conditions. In the UK at least you have to prove that your terms and conditions were provided to the client and an email signature link to your website would not be acceptable.
By concidence we are discussing this in a business forum at present. Someone raised a case where someone entered a car park and the receipt from the pay machine referred to T&Cs which were posted on a wall inside the car park. Apparently the judgement was that the driver had entered into a contract when he paid for parking. Since this was before he got the receipt he could not be aware of the terms until he had paid so the terms were invalid. It was also stated that even if he could have read the receipt before paying it would still have been unreasonable to expect him to wander around the inside of the car park looking for the terms.
For my own part and for your future reference I always send clients my T and C's separately and I use the following ...
|The client’s approval for work to commence shall be deemed a contractual agreement between the client and Toucher Web Design (TWD). Important: You should only pay your advance fee if you accept the terms and conditions outlined in this document. Our receipt of this payment will be taken as your acceptance of these terms and conditions. |
I think this would be OK but IANAL and it has not been tested.
I also have a condition where clients are allowed two full weeks after acceptance of the finished site and before payment to get back to me with corrections and minor changes. So I would agree with the others. It would probably be best that you just give them the website and wait the three weeks.
My wife has a web dev business. She learned this the hard way and now requires a signature on the agreement before she starts a project.
Chalk this one up and roll it out. If they don't pay you 3 weeks later, go after them.
|If they don't pay you 3 weeks later, go after them. |
I agree with the others. I know you may be a little worried that they will stiff you, unfortunately in this business that is always a risk, especially if you are putting the site up on their server. However I am not sure in big picture of this event that simply waiting the 3 weeks they want is that big of a deal. I almost always wait 30 days or so after a job is finished before I am paid. The idea of waiting 30 days after a job is fairly common actually. I understand your point, but in the absence of signed agreement I think you might be better off going with the flow on this one.
I agree, go with the flow.
If he steals it, sue him instead.
Hope that he doesn't and you get paid.
I'd rethink caving in. Your "third party" knew your terms...thus your current party should also know those terms. AND you have fully advertised your terms via the web. If they did NOT look at your terms, their bad. I think the court might tend to look to established business practices rather than their attempt to change your terms.
A lot of my business is onsite hardware/software onsite consulting. I'm seeing an increasing amount of weasiling/deadbeating.
A lot of that is tied to the economy taking a near vertical nosedive.
I think that there are a lot of people out there with marginal ethical levels who are now starting to really find ways to cheat as much as possible.
One thing that might help in the future is to break your payments into about 4 payments at various milestones. ie. something like
30% to begin
30% site on Test server complete
30% on migration to the live site
10% Final acceptance
That way, you gain 2 things (1) You have a sign off and payment indicating that they were satisfied with the previous steps and (2) you have reduced your exposure to loss by 50%
Be careful, I have seen a huge increase in scammers in the last 2 months. Everyone is looking to you to be their bailout source.
Also, keep in mind that companies that had cash reserves in the market lost about 50% of their value in the last 6 months. IOW, they are hurting for cash.
|I then point out the part of my TOS that talks about the payment terms and they are saying it does not apply to them because they were refered to me via another person and because I did not show them the terms of service. I did NOT email it to them but it's on my website and I included my website link in my signature. |
This was the point that grabbed me; you are responsible for making certain everything is clear up front. I've been in these situations before where a customer has argued that they were never notified, they had no idea what the terms were, etc., and they skate. I now require they read all terms up front, initialize and sign. It's not necessarily the most legal binding contract possible, but it's a piece of paper with their signature that cannot be contested.
Granted, it seems like these folks are a bit slimy.
I really hope this works out for you, but I chalk it up to a lesson learned either way.
Why would anyone sue over a three week delay ? Get upset, sure - but retain counsel at a cost of $250-500 per hour?
If the time machine is available get them to sign an agreement. If it is out of order, then wait and file on them in 3 weeks.
Me I would do this agree to the terms of the payment delay but have everthing in writing up front signed by the CEO and notarized.
Before doing that though I would get a signed statement from them the site passes all marks as far as looks, feel and they agree to if any changes need to be made to the site after it is turned over then then the cost of changes is not part of the site fee and an additional $100.00 per hour fee will be added to make such changes.
Any site errors that is due to your coding will be fixed at no additional charges.
Have the date the site will be uploaded to thier server, time of testing to ensure all the site works, payment and amount due, and date to is due. Also add an % charge to a late payment and intrest to be added to the due amount compounded daily.
Get them to sign the document and sent back by registered mail.
A previous employer of mine lost a lawsuit whereby we were sued for something that we should have been covered from by our T&Cs.
The ruling was that while the T&Cs were in order, the company had not taken due care in ensuring our customer was aware of them.
The problem was rectified by forcing online customers to "tick the box" on reading and agreeing to T&Cs, plus emailing them the whole lot during the order confirmation process, plus including a link to the T&Cs in the footer of every email sent out.
IANAL, jurisdiction was UK, customer was a consumer (not business).
I would call thier bluff.
Deliver the work and invoice them on 14 day terms. If they havent paid after 14 days send an LBA by registered post, remove the site and proceed to recover with interest.
Its not a good idea to take payment before the work is delivered, you leave yourself open to problems
Not even partial payment before work commences? I like to get 50% before I start, or at least after I've shown them a very light mockup at very low .jpg quality.
Even if they click something on your site that says "I agree to the payment terms of company X"... you still would be on shaky ground because website TOS don't even really hold up that well in court. Get yourself a fax machine and fax out your agreements and don't start until they are signed.
That is for the future though, for your present situation, if it were me I wouldn't get into a pissing contest over 3 weeks. I would put the site up, and when week 3 rolls around I would turn it off if they haven't paid, after a courtesy call first of course.
You could argue about this with them for months or you can give in to what has been so far a good paying customer, and hae a resolution in 3 weeks. Fighting with this person is likely to result in that person who referred them to you not doing so again.
Forget about who is right, (I would side with them though), but think about what is best for your business.
[edited by: Demaestro at 5:53 pm (utc) on Mar. 16, 2009]