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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86360
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am having a website built, and the developer has not completed

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I am having a website built, and the developer has not completed the work according to the contract and much of what is done is totally unacceptable. When there were two days of their not returning my calls, I posted on JustAnswer and was advised to send them a certified letter. In the meanwhile, they have uploaded some inventory in a most disorganized manner, and it is a disaster. The person who is the head of the company is not doing the actual work, but another person in India. The worker from India just emailed me indicating that the programming is completed. I am about to send this email to the head of the company, and I want advice first:

Programming completed? This is beyond belief. Have you looked at the website? Data is thrown up there in a haphazard manner, no photos, empty categories, duplicated pathways, incomplete inventory, no photos for whole categories, and your email says "Programming Completed". This is totally unacceptable. If your employees do not have the knowledge or capability to complete this project you need to let me know immediately so that I can find someone who can.
Submitted: 9 months ago.
Category: Legal
Expert:  Ely replied 9 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation, friend. Can you please tell me:

1) Did you pay them 100% up front, or, is this a pay per phase project? Do you still owe them any more money?
2) Is the site live, or not?
Customer: replied 9 months ago.

1) I paid them Installment 1 (several thousands of dollars).
2) The site is not live. It is a Yahoo store website.

Expert:  Ely replied 9 months ago.
Thank you, J.

Apologies in advance for the momentary wait while I am typing out my answer...
Expert:  Ely replied 9 months ago.
What you have here is arguably breach of contract.

Breach of contract may be minor, or material.

A minor breach is substandard performance but one that does not cancel the contract.

A material breach goes to the "heart" of the matter wherein the performance is so bad, or nonexistent, that it validates the other party walking away from the contract.

Is it a minor or material breach? The Court would decide based on the following subjective factors:

1. The extent to which the injured party will be deprived of an expected benefit
2. The extent to which the party can be adequately compensated.
3. The extent to which the breaching party will suffer forfeiture.
4. The likelihood that the breaching party will cure their failure
5. The good faith of the breaching party.

Here, one may wish to claim a MATERIAL BREACH of contract and demand that either they finish the job properly or, they will not be paid anymore and, may even be sued for the cost of another programmer finishing the work.

Example of a letter:

Dear __________,

This correspondence is in regards XXXXX XXXXX handling of the project dubbed _____ for me. At this time, I am having serious concerns about the status of completion of this project. Specifically, my concerns are as follows:

1.
2.
3.
4.
5.

If these issues are not dealt with properly and in a timely way, I am afraid that I may have no choice but to see this as a material breach of contract and will seek another contractor to finish the work, and shall cease payment to you and may demand money back.

By "timely," I mean by (date) - please have these issues finished then, or else I may consider this a material breach of contract and may act accordingly.

Sincerely,

Signature

Name


Again, this is just a sample. I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

Thank you, XXXXX XXXXX that information. My concern is that the company is in Detroit, and I am in NY, and I am not in position to go to a Detroit court. If they cannot do the job and will not refund my money, is there any other alternative? I know companies do not like to refund money, so I am concerned that they will continue to string me along. This website is my only source of income, my livelihood. It is a remake of an existing site that is no longer able to sustain me due to the fact that the suppliers discontinued most of their products.

 

I hope they CAN do the job, but if they are incapable, can you suggest how I might appeal to them to refund me money?

 

The contract states the job would be completed in 8 - 10 business weeks, and it is over three months now.

Expert:  Ely replied 9 months ago.
J,

You are very welcome.

My concern is that the company is in Detroit, and I am in NY, and I am not in position to go to a Detroit court. If they cannot do the job and will not refund my money, is there any other alternative?

Actually, one can file in NY. According to New York Civil Practice Law § 302, a party not in NY is subject to NY court jurisdiction if they "transact any business within the state or contract anywhere to supply goods or services in the state."

Arguably, this is enough to bind them to NY jurisdiction. The judgment may then be domesticated in Michigan if need be to force the issue.

I hope they CAN do the job, but if they are incapable, can you suggest how I might appeal to them to refund me money?

As you can see, they may be forced to do so.

The best way is to threaten legal action. Here, "pleading" for money to be returned may not work. Threatening may.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

Thank you, XXXXX XXXXX That is good news that I would not need to go to Detroit to pursue this if necessary.


 


One other thing: This is a Yahoo store, and this company is one ot the developers recommended by Yahoo. I brought this issue to the attention of one of the representatives from Yahoo, and she said that the list of developers they recommend is not an endorsement (I don't recall if she used that exact word) but only indicates that they are knowledgable and able to create a Yahoo site.

Expert:  Ely replied 9 months ago.
Again, you are very welcome, J.

One other thing: This is a Yahoo store, and this company is one ot the developers recommended by Yahoo. I brought this issue to the attention of one of the representatives from Yahoo, and she said that the list of developers they recommend is not an endorsement (I don't recall if she used that exact word) but only indicates that they are knowledgable and able to create a Yahoo site.

It is true. Yahoo! simply recommended this company. Unfortunately, Yahoo! cannot be held accountable for the company's lack of production.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

Since I paid the first installment by credit card, is it possible that they will work with me in some way to restore my funds pending resolution of the problem?

Expert:  Ely replied 9 months ago.
J,

Do you mean the credit card company? No, not likely. They will generally not "refund" the money unless the charge was unauthorized.

As for the website company, they may if you scare them enough with the letter making them think that unless they work with you, you may end up suing for breach of contract.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

To what extent can I document my experience with this company on the Internet? Perhaps, if they thought I were going to do so, that would also scare them.

Expert:  Ely replied 9 months ago.
This is your decision. Note that the reviews must be accurate, so as not to give them any room to threaten defamation.

One may wish to include in the letter a sentence akin to:

In addition, I will be sure to document my experience with your company on multiple review sites online, so other potential customer can learn what your services really offer..."

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86360
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 10 other Legal Specialists are ready to help you
Customer: replied 9 months ago.

Thank you, Ely, for your excellent service. I just completed the rating.

Expert:  Ely replied 9 months ago.
Thank you for your kind words J; good luck!

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