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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have hired a company to build an ecommerce website, and I

Customer Question

I have hired a company to build an ecommerce website, and I have signed a contract with them on July 5th and gave them the first installment of three, the third due upon completion of the work. It is a Yahoo website, and they are one of the recommended developers. I was told, and it is in the contract, that the project would be completed in 8 - 10 weeks (The estimated time for the completion of the project is 8-10 business weeks. This time frame is subject to change if there are any modifications to the design or additional requirements. The time frame is subject to the approval of design phase. XXX will require a minimum of 5-6 business weeks to code the RTML for the store once the design is approved. This time frame is also based on your deliver time of any material that is to be supplied in a timely fashion.) It is now over three months, and I am seeing very little progress, despite promises over the last two weeks that my project would be given priority. I believe that it is possible that this company is finding it difficult to upload the inventory from the multiple vendors and put things in logical categories. Yahoo store technicians have seen their work and agree that it is not acceptable. I have left several phone messages and emailed the company stating that it is urgent that the website be completed ASAP as the website business is my livelihood, and that I was counting on the Christmas shoppers to make purchases beginning mid-October. I have left a phone message today and another yesterday, but my calls have not been returned. Before hiring this company, I asked if they would put in the contract that the completion of the job is expected for the total price charged, that a few companies wanted installments but would not guarantee completion of the work. This company put the following warranty into the contract: XXX Inc. shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards. iXXX Inc. will provide a standard of care equal to, or superior to, care used by service providers similar to XXX, Inc. on similar projects. XXX gives a money back guarantee if it does not give a final finish website according to the above features and functionalities. I hope this gets resolved, but I am very concerned that the company may be stringing me along, and I need the income from this website. Do you have any ideas as to how to best communicate with them? Do you think, worst possible scenario, it would be possible for me to be given my money back (or part of it) for an incomplete project? Do I own what was already done so that I can have another developer complete the work? Incidentally, I have done all the graphics, gave them the design, all the text. They have provided the framework, although they have put on the site, "Web design by XXX"

Submitted: 9 months ago.
Category: Legal
Expert:  Zachary replied 9 months ago.
Hi,

My name is XXXXX XXXXX X will be assisting you with your legal question.

Pursuant to the terms of the contract, you have the right to withhold the final payment until they have completed the project. If they do not complete the project on a timely basis, then you are guaranteed the return of your money.

What I would recommend is sending the company a certified letter demanding assurances that there will be a timely completion as promised and asking if there is any reason for the delay so far.

If they do not respond, you have the option of terminating the contract and demanding the entire amount back.

Because they have not turned over the work to you yet, it is going to obviously be very difficult to force them to do this so another company can finish the job if you terminate them. Whether you are entitled to the code at this point depends on the exact statements in the contract. Computer code is protected as copyright, so ownership of the code under a contract must be designated as a work for hire, or the company will retain ownership of the code.

The problems with your case are that it will be hard to assert a loss of potential profits which would be caused by their failure to complete the project, as this would be speculative and hard to prove if you do not have a prior period from which you can compare the profits. If the business is new, this would be particularly difficult to establish. So a lawsuit would likely only result in you getting back the money you paid, or getting in damages the amount it would cost to have another company complete the project.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am credited by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Kind regards,
Zachary
Customer: replied 9 months ago.

Thank you for your reply.


 


Whether you are entitled to the code at this point depends on the exact statements in the contract.


 


There is nothing about this in the contract.


 


Mine is not a new business, but a new website. The older one is still active; however, it consisted of only one brand, and that company discontinued about 75% of its offerings. That is the reason I had the new website done. So, I can say that even with my limited one-brand website, this is the prime time of the year to make sales.


 


I don't see anything proprietery about the design itself, as many websites have the same design: slide show on the home page with two tables on the side, four below, and followed by items called "Best Sellers" and "Featured Items". I am able to copy the individual pages to show another developer what it should look like. Suing the current developer is the last thing I want to do and am still hoping that they will come through with results. I have paid the first installment which was several thousands of dollars.


 


At what point would you suggest the certified letter?


 


 


 

Expert:  Zachary replied 9 months ago.
Even though it's not proprietary, it is still likely covered by copyright. However, if you can simply take a screen shot and have another developer pick up from there, this is allowable, as it is the actual code which is protected by copyright.

If the contract is silent on it, the company owns it until it turns it over to you.

Because they are not returning your calls, I would suggest the certified letter go out ASAP. You want to wake them out of any slumber and make them start working and communicating with you.
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 8 other Legal Specialists are ready to help you
Customer: replied 9 months ago.

Thank you very much.

Expert:  Zachary replied 9 months ago.
My pleasure. Please let me know if you need any further information.

-Zachary

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