Consumer Law, Warranties Broken Promise/Proposal

[Helen_Baque]

You were so helpful in my last question a few weeks ago regarding my rude "landlord," I am hoping you're not sick of seeing my name.

I have my own little advertising & marketing company, currently established as an individual with a DBA. My first client, with whom I was trying to land as far back as March 2001, finally signed a proposal I had revised and re-revised for him several times (even going so far as to travel to see him, as he requested, but did not pay for). The proposal was signed in July 2001, and clearly states that the project would be broken up into three parts, the first being the establishment of a website, consisting of 3 pages, and general text and informal layout. The second phase would be the refinement of the text and the addition of the pertinent information, provided by him, into the approved layout. The final stage would simply be, in essence, his final approval.

It also clearly states my fees, and that payment is due at the end of each stage.

I snail mailed him an invoice during the third week of November, with a deadline for payment, only for the first phase. When the payment deadline arrived, I called him to ask if he'd be sending that soon, so I could note a grace period. He informed me he had not received the invoice. Since it never came back to me, I can only assume that's not true. What's more, he told me his fax was broken and he wasn't receiving email, so could I please read off the charges? I complied, and he exploded in anger, telling me it was entirely too much and he was not paying a dime for such a horribly raw web page. I told him he should carefully look over his signed proposal and the invoice before he decides to break his promise. He told me to fax the invoice to him immediately, which I did. That sucker sure got fixed quick, didn't it?

I have the signed proposal, dated by him. I have a copy of the invoice. My fees reflect an hourly charge, and then the web page fees are listed below that. Where do you suggest I go from here? I was advised that small claims court is a good avenue, but he's in a different city. Would I have to go there?

Thank you in advance,
Victoria

 

[Michael Wechsler]

No... we aren't sick of seeing your name and after all, these are called discussion forums, arent they??!!!

First, let's decide what it is you signed. Is it a proposal or is it a firm agreement? It sounds to be like you created an RFP -- request for proposal -- which was agreed and that payment and service was to be provided in three stages. The "proposal" term might be used here unintentionally in an inaccurate manner.

It sounds to me like he doesn't want to pay for services rendered -- but I cannot view the words of your contract which will govern everything. Let us assume this was a breach of contract -- you can sue him and possibly for the amount on the contract, not just for the amount done but also for consequential damages (lost clients as a result of scheduling) as well as a request for punitive damages for an intentional breach (not always likely but here it seems intentional). What to do?

Small claims court will only work in the limited jurisdiction of the court. Being in a different city isn't great and you have a choice -- small claims in that city or civil court in your city. It's not as easy, can take longer, may require some "motion practice" (things going on more than just showing up for court), but you can sue for a lot more than the limit in small claims.

But you also may have another remedy... the license for/ownership of the copyright may not have passed to the client. Thus, if the client does not pay you can send a cease and desist letter to the client and the webmaster/host as use will now constitute copyright infringement.

Hope you have better luck next time... and that you get a significant amount up front!

 

[Helen_Baque]

Wow, that does sound like a lot of trouble. It's still a lot of money to me, even though it might be just a pittance to him and the courts. Yet, I don't want to spend a fortune in lawyers and court costs, only to come away with nothing. I mean, there's no doubt I did the work, and the agreement I am referring to is not a contract, just an agreement that "this is the work I'll be doing for this much, and this is when you should pay." I dunno what to call that.

The web site has already been taken down, but the domain name, which he needs since all his other ads refer to it, is in posession of the hosting company/artist. Is this leverage against him? Should I NOT give it to him if he asks for it?

And any ideas on where I could get a cease and desist model letter? LOL

Thank you so much!

 

[Michael Wechsler]

I'm not sure I understand how the domain name ownership by the hosting company relates to you. You can send a simple letter stating the above. Be concise and state the bottom line -- we have a contract, you breached. My work was good enough to use but you owe me for the work. Additionally, you do not have rights, title or license, to use the work until you have paid. Any and all use will constitute a violation of copyright law.

In these cases there really isn't a form. It's small and a well worded letter that states all the issues and is worded strongly enough so that it implies you'll go the distance, should work. If it doesn't... you may need to be mad enough to go the distance! Good luck!!!