Forum Moderators: phranque
[edited by: heini at 9:35 pm (utc) on Oct. 11, 2003]
[edit reason] removed specifics, thanks. [/edit]
the contract was verbally accepted by the company CEO
Ouch.
1) Don't start any work on a project until the client has lived up to his/her end of the deal. If your agreement called for a 50% deposit then you should not have done any work until the deposit was received. You certainly shouldn't have put the website online where it's now partially out of your sole control.
2) Never accept a verbal agreement. No matter how honorable the person may seem. That person may no longer be with the company when disagreements arise.
3) In terms of going to court, you've got to decide if your ROI will still be worth it. If not then accept this situation as a learning experience and move on. Sometimes we learn more from our failures than from our successes.
Whatever happens I wish you the best of luck. I've been in your situation before and totally empathize with what you're going through right now. :)
Is there any compelling reason for me not to remove the site?
You stated above, "I can pull the site down but if I do that they could call the ISP and either cut my access off or have the site restored from backups."
If the company you did the work for has their own relationship with the ISP/host then I'm sure they could ask that the site be restored from backup if you delete it. If you keep deleting it the company could have a valid complaint against you and perhaps get the ISP/host to deny you access.
I recently had a closed door meeting with the CEO who asked that the site be put back up since I had pulled it down for an evening while adding images. I was told to turn in an invoice which I have done 3 times already.
Now, in response to lorax you seem to be stating you haven't been in touch with the CEO. If we're to help you we need to know all the facts, and keep them consistent please.
Technically, you own all the work because you have not been compensated. I recommend you set up a meeting with the CEO and whoever your primary contact is for this. Bring one or two reliable witnesses with you. In a business-like manner without getting emotional, request they pay you for the work you've done by a certain date that you select or is mutually agreed upon. If they agree to pay, then continue on saying that if payment is not received by whatever date you will consider the verbal contract null and void and all work must be returned to you, and they will not be authorized to use any of it on theirs or any other site. If they refuse to pay right away in the meeting, then inform them the same except all work must be returned to you immediately. You shouldn't perform any additional work on this until you are properly compensated.
I also recommend you or your witness bring a pre-prepared document of these new terms (and written out very clearly) with blanks for items like amount due, date due, and signatures. After your discussions, pull this document out, fill in the missing blanks, and get theirs, yours, and your witness(es)' signatures plus the date. If they refuse to sign, then just make an entry for their signatures saying "refuses to sign" and then you and your witness(es) sign and date the paper.
If they never pay and still use your work, then you can sue. If you live in the U.S., you could file in small claims court where you don't need an attorney. Each state has a maximum dollar amount which may be less than what you are due but at least you can get partial compensation without screwing around with a lengthy and expensive trial. Not sure if other countries have a similar type of court system.
After you get all this behind you, I recommend that any future jobs regardless of who the client is be done as a written contract.
How can they say they have any rights to the site if they haven't any receipts or cancelled checks for it being paid for? They haven't got a leg to stand on. Those written emails constitute offer and acceptance so there was SOME sort of agreement and no evidence of good faith on their part at any time. You might want to re-send a couple where they agreed just to stir their memory.
>>Is there any compelling reason for me not to remove the site?
No, there isn't. I'd flat out take it down, contact them and let the host know, and refuse to put it back up without some sort of good faith payment on their part. I'd also let the other company that they've been having do work on the site and the host that you're the copyright owner.
You gave them a contract and they didn't sign it? Is that what happened?
She overheard them saying there there is no f*&%ing way they were gonna pay $XXXX.XX for the site.
The only thing you *can* to is remove the site. Obviously, they like the site enough to pay another company to put links on it, so pulling the site down will send the message loud and clear.
There's nothing that makes it theirs.
Be careful what ever you do, the fact that you built the site, but do not have a contract in writing , and are not the signatory of the hosting - then if you touch the site, without the express permission of an authorised party of the company, they could sue you!
Personally, i think you should go and get some legal advice of the best way to deal with this!
Write them a seven-day letter to demand payment (within the seven days) or that THEY pull the site down themselves otherwise you will begin legal proceedings for non-payment of invoices AND for using copyrighted work without permisson (if they refuse to pull the site down after the seven-days are over).
I would phone the CEO and inform him that they have agreed the amount verbally and that you will take legal action within seven days - then put it in writing (send it via a recorded delivery service to get proof of delivery and include copies of all outstanding invoices). Now is the time to get harsh and demand FULL PAYMENT. You have done the work - don't accept a token amount - they are causing you more work - so only accept the full amount. One other thing you could include in the seven day letter is that you will accept a payment of 50% (or whatever) if payment is made within seven days, however after that time it is deemed that they have accepted to pay the full amount. I wouldn't do that, but maybe you will chose to do this. Put the pressure on them - at the moment they are smiling and you are upset - swing the balance the other way.
Technically, you own all the work because you have not been compensated.
Under UK law (on which australian law is based), that is not correct. If there is a valid contract in place then the sum the company owes is a straightforward debt, but title is passed.
To stop transference of title to property (intellectual or otherwise), a specific contract clause would be required stating that "..... xyz remains the property of abc until paid for in full".
In the absence of such a clause, UK law implies that title passes.
You could pull the plug on the site, let them sue you and counterclaim for your fees, although, in the absence of an agreed fee, the Court has discretion to "settle" your fees to something reasonable. If the judge thinks your fee was excessive, you'd be likely to have costs of the action awarded against you.
Secondly, you may be at risk for a damages claim.
Personally, I would walk away and chalk it up to experience. Life's too short.
You made a mistake, but next time you know exactly what not to do.
TJ
