Over the years of challenging contracts on behalf of our clients, we have come across many weird and wonderful ways where unscrupulous suppliers try to pull the wool over customers’ eyes in a bid to extract money from them unfairly.
A recent case involving a large web development agency was a prime example of situations where members of staff become inventive with the hats they wear in order to put additional pressure onto clients to settle unfair terms of their contracts.
In this open letter to Legal Louise* we highlight the pitfalls to look out for and how to address them – in a professional, and lawful manner.
To set the scene, the client has recently taken over the running of the company from a retired colleague and has requested a copy of the written contract from the supplier to clarify their commitment. The written document setting out the terms and conditions remains elusive.
Dear Legal Louise,
(Let’s assume Legal Louise works in the accounts department of a Web Design company based in the eastern home counties. She has added ‘Legal Department’ to her email signature to somehow give her more clout than an accounts clerk, yet she sends her correspondence from an accounts email account nonetheless. This childish and unprofessional tactic appears to be reflective of the whole company’s approach to customer service.)
Thank you for your recent correspondence. I am surprised to hear, as ‘legal counsel’ for *Wily* Web Design that you appear to have no comprehension of the value of a written contract, nor indeed do you appreciate the legal requirement to document certain terms agreed by the parties in any written form.
I appreciate your current Terms and Conditions are displayed on your website and available via links from:
- Every Email
- Every Invoice
- All Proposals
- Every Web Page
- Within Your FAQs
- Within Your Terms & Conditions Page
However, there appears to be no safeguard in place preventing any one of your team – even Billy from the back office if he has the login – from altering these terms and conditions to your own financial gain at any point, completely unbeknown to your client. Unless of course you expect a client to trawl through the latest version every time your company sends them an invoice or email?
There are also some significant absences from the Ts & Cs too – like any semblance of recognition of the actual terms of the individual contract or what period the contract should last. Or is this perhaps a whole life term you are expecting people to commit to? (according to the client it certainly feels like it.)
Every reference you make to the validity of these online terms is confounded by the fact they state contract terms are 12 months however a longer minimum term such as 2,3,4,5 or 10 years may be agreed and this then forms your minimum term with only your word to clarify the actual term agreed.
Presumably, you are not offering open access to the back end of your website to investigate the various iterations these Ts & Cs have been through to confirm whether those currently displayed on your website bear any semblance to the ones originally agreed?
Legal Louise, I hate to be the one to break the news to you, but this is not, and never will be, seen as acceptable practice.
As legal representative of *Wily Web Design* I also note your surprisingly forthright comments – somewhat unfitting of a qualified legal professional (or the average junior accounts clerk?) – where you have alluded to my client being ‘completely ignorant of contract law’. (Actual quote!) Luckily for our client – our team at Fair Contract Associates are not. And we happen to believe our client’s request for a copy of the contract and terms signed by his former colleague is far from ‘audacious’. In fact, astute and rightly cynical may be more on point here.
I thank you for your further observations that state a contract must be in place by virtue of the fact payments had been made to you. Indeed, you are right insomuch that a court could uphold the payment as acknowledgment that services have been received. However, without clear written Ts & Cs, payment does not clarify what services have been contracted, which is the information our client has requested and which still remains ambiguous.
I am sorry you are finding my client has not been
happy to be taken for a mug the (I quote) ‘good, respectful client’ his predecessor allegedly was and I hope you can somehow comprehend the importance of having clarity on terms and conditions for precisely this reason.
Furthermore, to require an individual online termination form be completed for each service at a charge of £60 plus VAT – as opposed to one form to cancel all services jointly – is a move more akin to Dick Turpin, another highwayman who originated from your neck of the woods. Your request for payment to cover the outstanding term of the contract is similarly bemusing as by law you can only bill for your actual losses suffered by early cancellation.
You would logically expect a monthly charge for ongoing marketing service to account for the costs incurred during that month so if you stop the work, technically all of the previous overheads for the terminated account should be minimised, and total settlement charges should reflect the savings this provides you, otherwise, courts often view the charges as penalties, not genuine losses.
Finally and for the record, the current version of your terms and conditions online, will fail for one very simple reason broadcast at various points throughout those terms, but with your exceptional knowledge of the law, you won’t need me to tell you where or why will you?.
I await your response.
Fair Contracts Associates
P.S. When you agree a Full and Final Settlement then legally it is just that a FULL and FINAL settlement. Louise, you cannot come back the following week and try to add more costs to it.
This case, I’m pleased to say, has been settled after an astonishing exchange of emails revealed the company had very little understanding of what constitutes a legal contract – despite claims to the contrary in a rather intimidating way to my client.
The moral of the story here? Don’t risk falling into the same trap as Legal Louise did. If you expect your clients to contract your services then provide them with a signed and dated written copy of their terms and conditions which clearly state what is expected of them and what it is they are paying for.
And putting your terms and conditions on your website is not legally binding without a well documented version control to demonstrate when any amendments were made. If you need advice on your contract issues, schedule a call today.