Seeking advice on legal aspects of web site design and T&C

[Ray-Dad]

Hello… I’ve run into trouble with a web designer who is designing a new web site for me. When I expressed some reservations about his design he became angry and difficult and quoted his Terms and Conditions which state that the deposit I paid him is non-refundable (we're talking 500 pounds here). I'd never seen these T&C's, as there's no link to them on his web site, and he'd never mentioned them before, nor were they mentioned in the original Proposal/quote he sent me to which I agreed as our basis for me hiring him.

I only just found out that these T&C’s were in fact mentioned on a 3rd party site via which I paid the deposit, which contained a document called "Order" and which had a link to the T&C's page, which is on the Designer's web site, but hidden (ie there's no link from the public pages). I paid the deposit and signed this Order on this 3rd party web site two weeks after we first agreed via e-mail on his Proposal/quote. To me this seems very late to introduce T&C's.

One could argue that I should have paid more attention, but as I understand it, an e-business is obliged to bring its T&C's to a client's attention at the earliest opportunity, certainly before a contract is agreed on, whether verbally, e-mail or in writing. The developer clearly didn't do this, unless one regards the moment of me paying the deposit and signing the Order form as the actual beginning of the contract, as the designer would argue. But again, I agreed via e-mail to his initial Proposal, which didn't mention his T&C's, two weeks before paying the deposit and siging the Order form.

The designer is stonewalling me at the moment, and not responding to attempts to resolve this in an amicable way. I've offered to pay him for his time so far and that we amicably stop working together, and he in principle agrees, but refuses to say how much he wants to charge me. He's also slammed down the T&Cs on me on another front, because I didn't respond to him within 7 days over the Xmas holidays (I was abroad), and his T&C's apparently state that the client is deemed to have accepted a design if he or she doesn't reply within seven working days. His last design change arrived on Christmas Eve, and I responded on January 7, which was day four of my working days since 24/12. It seems like a punitive attempt to lock me into a corner and justify keeping the entire deposit, or only refunding a token amount. I mean, he didn't send a reminder e-mail after these seven days, and I had to threaten him with legal action before he replied (once) and informed me of this.

I'm considering taking this designer to the small claims court to recover my deposit. My main question: are these T&C's legally binding in this situation, or can I make a solid case that the trader did not bring them to my attention early enough, ie that he should have introduced them in his Proposal, to which I agreed via e-mail, rather than in the Order form two weeks later, in effect introducing a new element without any warning? (the Proposal and Order forms look virtually identical, which is why I didn't bother reading the Order form in detail).

I hope the answer is that the T&C's are not legally binding, but if they are, can I make it stick that the T&C's regarding the non-refundable deposit and the 7-day period are unreasonable and unfair and that he's not enacting proper and decent business practices (ie there's nothing to show for the deposit I paid, he's not taking Xmas holidays in account, he didn't send a warning letter after 7 days, his reactions to me expressing my concerns and trying to come to an amicable resolution are obstructive and punitive, etc) and in that way recover most of my deposit? I'd be grateful for any feedback… thank you…

 

[termsandconditions]

In replying I'm assuming this is a commercial transaction. So DSR's won't apply.

There is obviously a contract in place as you paid a deposit and work commenced. You should argue that your website designer's terms and conditions do not apply as they were not adequately disclosed during the ordering/payment process.

It's simply not good enough to have terms and conditions floating around on a website and expect them to apply to the contract. They have to be properly disclosed and agreed to by both parties preferably as part of the original quotation or proposal.

So if the designer's terms and conditions do not apply to the contract then you have the same protection afforded by the Supply of Goods and Services Act 1982. This is because any waivers the designer may have tried to slip in to his invisible terms definitely do not apply.

The approval period he refers to is very very short, in fact the shortest I've ever seen in such terms. No wonder the designer keeps his terms under wraps.

However, there is a contract in place ..of sorts. As such you really should consult a solicitor about your intended breach of contract before making a claim presumably for non-performance. You don't want to make a bad situation even worse.

Best Regards

 

[FIZIX Agency]

Firstly, termsandconditions isn't necessarily correct; it depends on the format and process that were used to hire the designer. I am assuming that you spoke to a designer about a bespoke design, he gave you a proposal that outlined what he would offer and then you signed a contract and then received an invoice and paid that.

If so, you do not have to present your terms and conditions of contract with the initial quote or proposal; not unless they are combined things. Most providers don't because it comes across as pushy.

What's important is that the terms and conditions appear along with the contract (preferably as part of the contract itself), are made clear and preferably are discussed.


If you were hiring a designer then the proposal is a pitch; it's a document that outlines that the designer is offering to do x for £y within z weeks. No part of a proposal is legally binding and does not form a contract.

If you want to take the designer up on his offer then you'd be presented with the contract which would contain the terms and conditions.


Go to pretty much any agency or freelancer and you'll get:

1. Discussion
2. Proposal (the pitch)
3. The contract (the legal stuff, includes the T&C's)
4. If you sign the contract, you'll get an invoice afterwards

... process begins.


I don't think we've all got it wrong by not presenting them with the initial proposal.

FTR: Providers don't provide T&C's with the proposal as it makes the proposal look like a contract and thus scares potential clients away as it looks to them as though you are pushing them to sign on the dotted line there and then, even if a dotted line isn't there.


Whether this designers terms and conditions are valid will depend on how those terms and conditions were presented and whether or not the T&C's were obvious.

If they were linked obscurely from your contract then I would say they were not obvious. But without seeing the contract we have no way to be sure.

It certainly sounds as though they were hidden away though and if that's the case you can argue that they shouldn't be enforced on you.

Not sure I like the 3rd party contract website and T&C's being on his website thing. Seems deliberately convoluted to me.

We send a proposal and then if they went to take us up, it's a contract; the T&C's are part of the actual contract itself; so there is no way a client wouldn't know they exist. We also run through them with clients too, as it's best practice to do so.


In regards to the T&C's not being visible on his website via a public link, that's fine. There is no requirement to do so, go to any agency or freelancers site and you won't find the contract T&C's publicly linked; just the website T&C's.


Anyway; beyond that, the designers process appears to suck from the way you have presented it. But then again there isn't much detail about the process you undertook, communication and what you received before this breaking point.


The christmas thing is definitely ridiculous, as is assuming you've agreed to a design after 7 days. That's crazy and I don't think that would stick; that's locking you in.


Non refundable deposits are very common and are enforceable, provided the contract wasn't breached by the designer.


What's not clear is how you approached the designer when you were unhappy with the design; did you give opportunity for him to tweak the design and also did the designer show you revisions leading up to a final design.

What I mean is, what was the design process?

For example; was the designer showing you an initial draft idea or was it a final design? Did the designer show you concepts leading up to this design presentation or not? Also did the designer express they would try multiple design concepts (either at once or sequentially) or was it a one shot design?

So there could be a lot of devil in the detail where designer performance is concerned.


Sounds like you might have got a dud designer though.

 

[Ray-Dad]

Hi John,

Thank you so much for your reply. Sorry to sound ignorant, but what are DSR's?

I'm not sure I managed to make myself entirely clear, so to clarify: after initial contact early November, the designer e-mailed me a Proposal pfd document, that I agreed to via e-mail at the time. This Proposal did not make any mention of T&C's. We e-mailed for another two weeks, getting the work described in the Proposal more focused, and still no mention was made of T&C's.

Then, after two weeks of us e-mailing and when he was about to start the work, he asked me to pay a 50% deposit via a 3rd Party web site, and this payment process included me having to sign an Order form that looked exactly the same as the Proposal document and that detailed the same work. I thought it was the same document, apart from the change of title, and signed.

I only recently noticed that the Order document does make mention of the T&C's with a link to these T&C's on the designer's site--though no link is provided from the designer's site itself. The designer in effect appears to keep the T&C's hidden until the moment comes for the client to pay the deposit, presumably hoping that given that the client has already agreed to him doing the work, the client is too far in to really check the small print at this later stage.

So in your experience, does this count as non-disclosure, or disclosure that's too late or not clear enough, or even engaging someone in a contract via subterfuge?

I'm also intrigued by what you write about the seven-day reply period being the shortest you've ever seen. In these T&C's, this is the period the client has to comment on changes made in the design. If the client waits longer than seven days, the designer reserves the right to design the design as approved by the client. In my case he has done so, and I imagine it is to prevent me claiming for non-performance, and also to keep my deposit, even though none of the work he's done is usable. But given that this seven-day period is not standard industry practice, and that he enforced this rule clearly punitively (he didn't send me a reminder letter after seven days nor did he inform me that he had defined the design as accepted by client. I only found this out after I'd threatened with court action--it was the only way to get a reply out of him), could I make a claim here that the T&C's are unreasonable and don't reflect fair practice, or whatever it's called?

By the way, I'm new here, so I hope that posing questions like this in this forum is acceptable and appropriate. As I wrote in my intro, an acquaintance who is a member here recommended this site, in part as a way to get answers to these questions. Browsing around here, I notice there's a lot more to learn!

Ray-Dad.

 

[FIZIX Agency]

after initial contact early November, the designer e-mailed me a Proposal pfd document, that I agreed to via e-mail at the time. This Proposal did not make any mention of T&C's. We e-mailed for another two weeks, getting the work described in the Proposal more focused, and still no mention was made of T&C's.

It sounds to me as though the proposal was just a proposal and not a contract. The T&C's appearing at this point would be uncommon.

Then, after two weeks of us e-mailing and when he was about to start the work, he asked me to pay a 50% deposit via a 3rd Party web site, and this payment process included me having to sign an Order form that looked exactly the same as the Proposal document and that detailed the same work. I thought it was the same document, apart from the change of title, and signed.

I only recently noticed that the Order document does make mention of the T&C's with a link to these T&C's on the designer's site--though no link is provided from the designer's site itself.

The BIB is irrelevant, so forget about that. I've never seen the T&C's of any designer (freelance or agency) linked on their websites. It's not necessary for those to be there; they are for clients who are executing business deals.

How did you agree for him to do the work?

Was it an email message or phone call in which he replied "go here and agree to my contract and pay the down payment" kind of affair?

That is very important, there is no obligation for the designer to present the T&C's with the proposal and is not common practice to do so. Unless the proposal was the contract. But it sounds to me as though you are muddling a proposal and a contract.

Nobody is bound by a proposal.


Also, was the page you went to a contract and order form in one?

So you have the outline of the proposal (what the designer will do), with a link to some T&C's and some "agree to this contract" stuff which is followed by a "pay the down payment" screen.

Because if that's the case then it appears to be an online, automated version of a normal contracting process like everyone uses and if that is the case then what is important is not the process but how clear those T&C's actually were.

Now; most providers will include the T&C's on the same page as the work outline. But there is no obligation for them to do that, they only need to make the T&C's clear. Also most providers will request payment after you have signed the contract. However a provider handing you a contract and an invoice and saying "sign this and then here is how to pay the down payment" is legal and the online system sounds like it was doing that.


Provided the link to the T&C's and the fact that you were agreeing to those T&C's was clear then it's going to be binding. If the T&C link was hidden away in a block of text and there was no clear indication that you were agreeing to them, then you can contest it.


So unless you make that clear to us all and explain that contracting process on the website; what info was there and how everything was presented, it's impossible for anyone to say.

The designer in effect appears to keep the T&C's hidden until the moment comes for the client to pay the deposit, presumably hoping that given that the client has already agreed to him doing the work, the client is too far in to really check the small print at this later stage.

To be clear; was the deposit payment after agreeing to the proposal outline and the T&C's on that website.

If so, you are muddling the proposal and contracting process.

So in your experience, does this count as non-disclosure, or disclosure that's too late or not clear enough, or even engaging someone in a contract via subterfuge?

If it's how I am visualising it, then no.

I'm also intrigued by what you write about the seven-day reply period being the shortest you've ever seen.

I'll go further and state that I've never seen automated acceptance of content; that's crazy.

In these T&C's, this is the period the client has to comment on changes made in the design.

Again, I think that is unreasonable. The client should have as long as they reasonably need to decide on things and make changes.

If the client waits longer than seven days, the designer reserves the right to design the design as approved by the client. In my case he has done so, and I imagine it is to prevent me claiming for non-performance, and also to keep my deposit, even though none of the work he's done is usable.

I'm not going to second guess the designers reasoning, but it is an unreasonable approach from the designer.

But given that this seven-day period is not standard industry practice, and that he enforced this rule clearly punitively (he didn't send me a reminder letter after seven days nor did he inform me that he had defined the design as accepted by client. I only found this out after I'd threatened with court action--it was the only way to get a reply out of him), could I make a claim here that the T&C's are unreasonable and don't reflect fair practice, or whatever it's called?

Possibly, it's an unreasonable expectation from the designer, but I suspect it will be a court who would decide. In essence, if it was in the contract then it is quite possibly binding.


It certainly sounds as though you've got a bad designer, but I think from the sounds of it, you're trying to make the proposal the contract and if that's the case, you're barking up the wrong tree because they are not the same thing.


Your weapons against the designer are their performance and whether the automatic acceptance and production of design after 7 days is reasonable.

In regards to the down payment being non refundable, you asked in your OP whether that is reasonable. Non refundable down payments are very common, they actually exist for a good reason (there is a reason for down payments) and they do stand.

Just as an FYI, they exist to protect creative professionals from the theft of creative ideas and artwork. Unfortunately it's very easy for the bad guys to hire a designer, get the designs and cool ideas and run with them. So designers make down payments non refundable to mitigate the risk.

And that is where you may come into a problem with the down payment if the designer decides to fight back.

You can think for shysters for that.

 

[Ray-Dad]

Hi Fizix, that's really helpful, thank you. The pitching/contractual process happened pretty much as you described, the only difference being that steps 3 & 4 happened at the same time. First I was sent the Proposal, to which I agreed via e-mail, and after two weeks of further e-mailing I was asked to pay a 50% deposit via a reputable 3rd party payment site, and this process included me signing an Order form, that looked exactly the same as the Proposal document. I was in a hurry and I didn't read it and just paid, but the Order form did have an added line about T&C's, with a link provided to these T&C's. So at no stage did he point the T&C's out to me or go through them with me or give me time to read them and make sure I understood and agreed.

Regarding the design process, he presented a design idea a week after I had paid and signed, and we went through two changes in the two weeks after that. He did take several days every time to respond and also didn't incorporate all my requests for changes, and just before Xmas I had to chase him up and it took him 5 days to make some minor changes (he claims 2-3 days is industry standard). I realised by then that the design just wasn't working and that he'd need to start again from scratch. Given the 2-5-day turnaround time between design changes I expressed my concern that with the unlimited changes he offers, the whole process could take months, instead of the three weeks he had suggested, and I wondered whether the whole thing would work out for both of us. But I did leave the door wide open for him to come back to me and re-assure me.

I did all this very politely and respectfully-worded, at every point reassuring him that I was after amicable agreements, whatever they were, but what I wrote nonetheless did make him hit the ceiling and go into all this defensive T&C's stuff, and then in the new year he simply stonewalled me until I threatened with legal action, after which he did reply with the seven-day limit to respond clause. I thought this was so I can't chase him for non-performance, but I just re-read them, and the T&C's actually state that he can chase me for the other 50% of the payment (actually it says 60%, but this must be a typo) once the design is "deemed to have been approved." It also says that if the company finds the clients non-acceptance of the design unreasonable, it can enforce the design.

Wow, that's quite something. If I'd been aware of these clauses, I'd never have agreed to this contract. It puts his sales pitch, that he offers "unlimited revisions," into a rather different light. Having said that, I have offered him 100 pounds for his work (which has been insubstantial) as a way of releasing the contract, and he has in fact offered to give some sort of refund, so we're not that far apart. But he's refusing to say how much, and prefers to keep me waiting, meaning I can't move on this whole thing. I've sent him another consensus-seeking e-mail, but he doesn't reply.

By the way, all communications have taken place via e-mail.

 

[FIZIX Agency]

Hi Fizix, that's really helpful, thank you. The pitching/contractual process happened pretty much as you described, the only difference being that steps 3 & 4 happened at the same time. First I was sent the Proposal, to which I agreed via e-mail, and after two weeks of further e-mailing I was asked to pay a 50% deposit via a reputable 3rd party payment site, and this process included me signing an Order form, that looked exactly the same as the Proposal document. I was in a hurry and I didn't read it and just paid, but the Order form did have an added line about T&C's, with a link provided to these T&C's. So at no stage did he point the T&C's out to me or go through them with me or give me time to read them and make sure I understood and agreed.

While you would normally see proposal > contract > invoice as separate things and see the T&C's within the contract body; there is nothing incorrect about combining the contract and invoice and having the T&C's within their own document.

Keep in mind that the contract will outline the proposal so they may resemble each other; think of it as the requirements (what we will deliver) and the terms (these are the rules and how we are both protected).

The terms would normally be part of the main contract body but there isn't anything wrong with them being a separate document provided they are clear in the main contract body.

There are also no requirements to read the terms out to you or explicitly say "here they are" provided it's clear that they exist.

You admit yourself you didn't read the contract; that's why you've gotten stung. Never sign an agreement without reading it through.

I will say, the approach does sound amateurish but it's not wrong.

Hanging onto things such as the contractual T&C's not being linked on the website and that taking the proposal as the contracting process isn't going to help you and could, if you tried to fight it in court, go against you as it makes it sound like your scoping for anything as opposed to focusing on the more obvious wrongdoing should it exist.

This is also why I was slightly cynical in my initial response. When someone has been wronged by a provider, you'd look at the failing of service; thats what the focus and argument would be.

Regarding the design process, he presented a design idea a week after I had paid and signed, and we went through two changes in the two weeks after that. He did take several days every time to respond and also didn't incorporate all my requests for changes, and just before Xmas I had to chase him up and it took him 5 days to make some minor changes (he claims 2-3 days is industry standard). I realised by then that the design just wasn't working and that he'd need to start again from scratch. Given the 2-5-day turnaround time between design changes I expressed my concern that with the unlimited changes he offers, the whole process could take months, instead of the three weeks he had suggested, and I wondered whether the whole thing would work out for both of us. But I did leave the door wide open for him to come back to me and re-assure me.

There is no industry standard timescale for design; how long a design or even the production of a website will take and how long revisions will take will depend on the subject matter and the designer.

If you had to threaten legal action to get a reply and it took them days to even reply to you then that's bad and shows that they were not honoring your contract well.

Also, "unlimited revisions", beware unrealistic promises!


I believe you had a bad designer and it's things like radio silence for a week or more and having to threaten legal action to get replies that are your strongest case and adds to the turnaround time issue.

For example, you said that the designs were not fit for purpose; unless it's visibly bad or demonstrably not fit for purpose a court won't judge quality of artistic content as they often are not qualified to do so.

Of course, if your lines of conversation were that it's bad from first viewing, then you could start to along those lines. But still, a stronger case is how the provider interacts with you.

They also won't necessarily accept minor timescale deviations unless they were guaranteed or unreasonable. That depends on the content at hand and other factors (i.e. the radio silence).

It's the actions of the designer that will give you your proof. Things like ignoring you for a week and not replying until legal action is threatened demonstrate that the designers turnaround times were due to non performance rather than it being normal or reasonable. You see, the way the designer communicated with you proves that his workmanship was unacceptable.

Focusing on the contracting process doesn't, it makes it look more like your seeking a way out.

Do you get what I'm getting at?

Focus on the things you can prove as unreasonable and unacceptable.


The terms and conditions themselves are definitely unreasonable, they won't be illegal but whether they would stand as unfair in a court I am not sure.

 

[Alan]

Did you follow up references / testimonials with this designer prior to engaging?

 

[Ray-Dad]

Hi Fizix... thanks again, I’m learning A LOT here! Wow. Yeah, I understand the difference between Proposal and an Order document. I just thought that because I agreed to the Proposal in an e-mail, ie in writing, that this would also be a legally binding agreement. And again, because the Order document two weeks later looked exactly the same as the Proposal document, I thought they were the same document, and I simply signed and paid. It does surprise me that T&C’s can be introduced in such an underhand way, but I can’t argue that they were hidden in the Order document… the mention of and link to them was clear visible, so I admit, I should have paid more attention! An expensive lesson!

The reason I was getting really worked up about this situation and wondering: “I’m GBP 500 out of pocket and I have nothing to show for it, and the guy walks away with the money, and this is legal? How can this be?”

Having sat with the feedback here for a bit, the issue doesn’t appear to be the T&C’s but “non-performance,” as I understand the legal term is, which means that he’s in breach of contract, and if so, I can pursue him for it and ask my deposit back. Am I seeing this correctly?

Before I spend money and time on a solicitor, I’d like to summarise my case for non-performance, and please feel welcome to shoot holes in this if you think it won’t stick, or suggest phrasings or approaches that are more likely to stick…

* the bottom line is that I’ve paid a deposit for work towards building a web site, and I don’t have anything to show for my money, other than an unfinished front page design that I don’t like and have not approved (it’s not catastrophically bad, it’s just not to my liking).
- The designer’s case is that he “suspended” work on my site because I didn’t reply within seven days of him presenting his latest work-in-progress (on 24/12) and his T&C’s state that I am deemed to have accepted the design for the Front Page in that case. He’s also claimed in an e-mail that on average 40% of the work in designing and building a web site goes just into getting the design for the Front Page right, so I’m guessing he’s going to retain 40% of the total payment, ie 80% of the 50% deposit, and pay me back 20% of the deposit I paid, ie GBP100. That still leaves me GBP400 out of pocket.

* my arguments to substantiate a claim for non-performance and unreasonable and unacceptable business practices are:
a) The designer submitted his latest work-in-progress on 24/12 and I replied on 7/1. In my work sector, the trade media, everyone is on holiday between Xmas and New Year, and so was I (I was abroad and can prove this). It is unreasonable to ignore the Xmas holidays in enforcing the T&C’s seven-day rule.
b) it is also unreasonable to enforce this rule without warning and without notifying me. I sent the designer e-mails on 7/1, 10/1 and tried to call him on 11/1, and he did not reply. He only replied on 14/1 after I had threatened legal action, and in passing mentioned his imposition of the seven-day rule and that work on my site is “suspended.”
c) it is also unreasonable for a designer to not respond to attempts to make contact by a client, and only reply when a threats of legal action are made.
d) The T&C’s state “On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify * company name* in writing, of any unsatisfactory points within 7 days of receipt of such notification.” The first few words here, ie “On completion of the work,” appear to relate to a finished design. The design change sent on 24/12 clearly was an unfinished work in progress, which he himself calls an “update” in the accompanying e-mail, so this clause from his T&C’s does not apply here in any case, and to use it is disingenuous and unacceptable.
d) I made the designer aware, on 23/12, that there had been several suggestions for design changes that I had made that he had not incorporated. On 24/12 he asked me to specify them, so also from this perspective he was fully aware that I had issues with his design. In an e-mail on 7/1, I specified my requests for changes that he had not incorporated (there were four major ones), but he did not addressed these, which is negligent.
e) On 23/12 I also expressed my concern over the long turnaround time between design changes, which varied from 2 to 5 days, and that it could take months to come to a design that was acceptable to me. In his response on 24/12 he claimed that 2-3 days is “industry standard” when working on a project on a non-exclusive basis. I believe that this statement is verifiably incorrect… there is no industry standard for turnaround times, so this is not a reasonable defence or explanation.
f) Because of the above, I was losing faith in the work being completed in a reasonable time period and being executed to my satisfaction. I expressed my concern on 23/12 and asked for re-assurance, and also suggested, as an alternative, that we amicably part company, with me paying something towards the designer’s time and he refunding me the rest. He agreed this was an option he was willing to consider, but has so far refused to specify how much he’d charge. On 14/1 I offered GBP100, as I don’t think the design is substantial, and it certainly is far from finished. In his reply of 14/1 he acknowledges his earlier offer of a partial refund, but says that he’ll withdraw it if I continue with legal threats and that he’ll be in touch towards the end of the month. I consider this an unacceptable delay in making me an offer, as I’m locked in a situation not of my choosing for another two weeks that prevents me from taking the work on my web site elsewhere. There’s no reason why he can’t put his cards on the table, so to speak, right now. The designer has not responded to two respectful and conciliatory e-mails sent since 14/1 nor to a telephone intervention from the 3rd-party web site, all encouraging him to make contact. In effect he is stonewalling me. This comes across as punitive and is not proper business practice.

What do you think? Is this a case?

Thanx again!

 

[Ray-Dad]

Did you follow up references / testimonials with this designer prior to engaging?

Hi Roibot, the short answer is no. In my defence, however, I'll say that I found the designer on a reputable 3rd party web site, where he had top rating, and quite a few customer reviews, and I checked out his web site and the sites he's designed, as well as his background, and found some more positive reviews of his work on other sites. Unless he's flat out lying or greatly exaggerating on his site, his credentials are impressive enough. Despite the messy situation I'm in, I'm not sure he's necessarily a bad designer. I have no idea why he's reacting the way he is, but my guess is that 1) he's taken on more work than he could comfortably handle (hence the design update delays and not implementing all my requests changes) and his touchy and non-professional and very defensive reactions may come from him being over-worked, and 2) I guess he's more a developer than a designer, and/or doesn't have any feeling for the aesthetic approach I'm after. His design efforts were not bad, but to me looked like Frankenstein bolted-together monsters of some vague ideas I'd thrown up (as in, 'I like watercolour design') rather than something designed by someone who knows how to handle proportions and colours and other aesthetic choices.

As to mistakes I made, I think it may be worth highlighting, also on the other thread about how to find a web designer/developer, that I fell for the big mistake that the Internet invites all of us to make: which is to keep everything on-line. Specifically, I didn't manage to talk with the guy on the phone until after I'd signed. After two minutes of talking I immediately knew that this was not someone I could comfortably work with. He sounded like the über-nerd of über-nerds. I'd paid, so I needed to make the best of it, but his design efforts, and also his defensive, unprofessional responses when I very kindly suggested it might not work out, proved that my intuition was correct.

So lesson number one: always make sure to actually talk to someone before hiring them to do an important job, if possible face to face, but at the very least by telephone. In the old days there was the face behind the telephone voice; today we have the voice behind the e-mails. The latter is the very least one needs to get a "feeling" for the person and sense whether a collaboration is a good idea or not.

Lesson number two: it's so easy not to read the T&C's in full on the Internet and just sign. I mean, do all of us always read the Terms of Use or whatever they're called with every software update or download? I suspect not. I mean, I didn't even see the mention of the T&C's because when quickly scanning the on-line pdf document, I thought it was the same as I'd seen before, which did not have the T&C's. I don't think I'd made the same mistake if I'd been sent a paper contract. But on the Internet the temptation is to be fast and efficient and scan things. There's no avoiding this because of the sheer amount of info, but for anything contractual, it clearly is a Big Mistake!

 

[Alan]

By a third part website I assume you mean something like elance or people per hour? So if he had good references I think that was part of the due diligence.

But you raise an important point, that a telephone interview is still a good idea, in the past I have used such 3rd party sites and in all but 1 occasion I telephone interviewed before making a decision. The one I didn't call was a disaster, similar to yours (but not websites as I don't need any one to write websites for me ), fortunately they did the honourable thing when I complained and return all the payments.

(I later discovered that is a neat trick, as if they return the payment and cancel the job - you don't get the opportunity to leave bad feedback, so they maintained their 100% 5 star rating)

In terms of non performance, you probably have a a bit of a battle on your hands, as he has performed and delivered, just you didn't like it. £500 would would cover somewhere between 10 & 20 hours work. If the initial designs could be deemed by an independent expert to have taken 10 hours effort, then you may be in danger if going to court for the full £500 of losing (in my non legal, lay persons opinion)

You certainly would have to show that you have tried to negotiate a settlement. If the 3rd party site allows you to leave feedback, you might have some negotiating leverage there.

 

[Ray-Dad]

Hi Roibot: Yeah, I did find the designer on the kind of site you mention. But because I have dozens of passwords all over the Internet I was reluctant to register for yet another site. So rather than contact the designer via the 3rd party site, I put his details in a search engine, had a look around, and having forgotten about the 3rd party site, I approached the designer directly via his site.

Another mistake.

Lesson three: if one finds a web designer via a reputable 3rd party site that has user-feedback and T&C's, contact the designer via that site, because the designer will be held to the 3rd Party site's code of conduct.

Roibot also suggested that the designer has "performed and delivered." I think it's very plausible to argue that he hasn't. The work detailed in the Proposal and Order forms includes: a wordpress site with a home page and at least three sub sections with separate layout for each section, shopping functionality, an audio player, search engine optimisation and analytics reporting, a contact form, links to social media, a slide show, and unlimited revisions.

But all that I have is an unfinished front page design that's not approved by me. Surely this is a non-performance case?

Also, I'd love to have feedback on whether a Proposal document that a client and a designer have agreed on in writing is also legally binding, even if an Order form was later signed.

I just noticed, for example, that the "unlimited revisions" are mentioned in the Proposal document (as well as in several of the designer's e-mails), but not in the later Order document. But surely the earlier Proposal document is also legally binding, as we agreed on it, via e-mail? :|

 

[woodss]

This is one of the massive difficulties that can arise between client and designer - design is an entirely personal thing.

What looks great to the designer might look completely crap to the customer, but that doesn't mean that the designer shouldn't be paid for their work.

This whole thing probably boils down to a lack of communication about what was expected - I much prefer to have at least a rough idea (maybe a wireframe or sketch) of what it is the customer would like me to design - then I go and make it look pretty. That's not to say I'm not comfortable leading the customer, but when you're talking a piddly amount (500 notes) you better be sure that the requirements and expectations are nailed down hard because there's very little budgetary room for toing and froing - the designer has to make a living and they can't if they're designing their way down a never ending road of amendments.

I say send an e-mail saying that you realise he needs to be paid for his work but that you'd hoped the work would be different. Perhaps it might be worth you sending him what it was you were originally after and he can then produce something more suitable? That's what I'd be happy with especially if it meant rescuing the business relationship - if he refuses to meet you halfway then that's a different issue.

Good luck!

 

[Ray-Dad]

Hi Woods, actually, if you read back through the whole thread (admittedly it's rather a lot), it's not at all an issue of differences in taste... The issues are that the designer, who in writing offers "unlimited design changes," took overly long IMHO between changes (2-5 days) didn't incorporate all my requests each time, then when I gently questioned this, slammed his T&C's on me just before Xmas, and the next step was that he refuses to reply to e-mails and phone calls, and only replied once when I, after three attempts to contact him, threatened legal action. In response he abuses his T&C because I took more than seven days to reply to his last draft, which supposedly means that the draft is deemed accepted. But he did not take the Xmas holidays into account, and actually, I just re-read the T&C, and the seven-day period applies when the entire project is finished, ie the web site is up and running. It does not apply to a response to a design draft.

In summary, this is a case of non-communication, abusing T&C's to get at the client, and of non-performance. I realise now that it mainly are web developers who respond to this thread, which is great because it means I have to argue my case well , and I've already been made aware of areas where I have no case, but please don't let any professional bias prevent you from recognising the essence of what is going on, which in this case has nothing to do with differences in taste. I have e-mailed the designer again this week, (twice) to suggest that we find an amicable solution, including the option of him retaking the work, and he simply doesn't reply. So then what?

 

[Alan]

But all that I have is an unfinished front page design that's not approved by me. Surely this is a non-performance case?|

Yes, clearly it is non performance. Maybe 2 hours work so far , I would guess without seeing it. In reality you have to give him the opportunity to deliver the full site (or return your deposit).

I'm glad you have found the 7 days clause is not until the full site is delivered, clearly he is trying it on.

What was the deposit? One third? So a full contract price of £1,500, which probably about right for what you asked, give or take.

As a provider, however I find it hard to imagine agreeing a the scope / the proposal & price without at least speaking to the client for quite a while. (did I recall that, you didn't) Even the simple £75 wordpress sites we role out we have to speak to the client to understand their requirements.

I sort of suspect that this is a 'bad-un' that hoped they could get away with a quick wordpress template tweak and 5 plugins and do £300s worth of work and charge £1,500. When he realised he couldn't he thought he'd grab the £500 anyway and hope you give up.

I wouldn't give up. Is he UK based? Time to write threatening letters.

 

[FIZIX Agency]

Yes, clearly it is non performance.

It does sound like it.

Maybe 2 hours work so far , I would guess without seeing it.

You can't say that without seeing it. While you may be right you also might be wrong.

It's kind of wrong to assume the designers motives as none of us are privy to the design, actual conversations and then there may be other possibilities too.

While I agree from the way the OP has described the communication process that this designer may be one of the bad guys, it's not good to just make the rest up.

 

[Alan]

While you may be right you also might be wrong..

That is why I used the words 'maybe' and 'guess'.

 

[FIZIX Agency]

That is why I used the words 'maybe' and 'guess'.

Yes you did, but you know what I mean (I hope).

 

[woodss]

Fair enough - How long ago did you send the emails requesting contact? Maybe he's ill or something.

Do you have his home address?

 

[Ray-Dad]

Hi Roibot and Fizix... thanx for your replies and thoughts... this has been really really helpful. I hope it's also been educational to some of those that simply passed by...

A couple more details: the deposit was 50%, so the total fee is GBP 1000. I also can't even begin to guess at the designer's motives: a client is not happy with an initial design draft and concerned about the long turnaround times and wondering whether the whole thing will work out, and expresses this respectfully and courteously... What's the big deal? This kind of thing is part of the job description, and should never lead to slamming the client with T&C's and refusing to communicate. Perhaps the guy is very insecure, I just don't know. It's just totally bewildering, also because he leaves himself open to me leaving negative feedback in all sorts of places, if I choose to. For now, I'm holding my fire, and hope that he'll come through with a reasonable and amicable resolution, whether he thinks of it himself or whether I have to threaten court action again before he realises that non-performance means breach of contract. Yes, he does live in the UK, so the small claims court would be the bottom line if all else fails.

Oh, and as per Woods question, I sent friendly e-mails on 7/1, 10/1 and exactly to eliminate the possibility of him being ill or away I called his office on 11/1, and was told that he was working that week and that they'd pass on my request for him to call me. No response. On 14/1, via e-mail, I threatened to send him a Special Delivery letter as a first step towards legal action, and he immediately replied, and apart from all the rubbish about me missing the fictitious seven-day reply deadline and my project therefore being "suspended," he indicated that he would get in touch again by the end of the month with news of how much he's going to pay me back, if anything. This locks me in for two weeks, and I don't see why it's necessary to wait that long, so I've sent him a friendly e-mail on Tuesday asking him to get in touch and sort this out now. Again no response.

Two more things... I'd like to understand better in how far a Proposal that has been agreed on by both sides in writing is legally binding, and if a Contract for the same project as described in the Proposal that is signed later on differs from the Proposal, how this discrepancy is resolved...

And finally, I'm new here, so I have no idea whether this is an appropriate suggestion or not, but if Roibot and/or Fizix are up for having a look at the design and T&C's and giving feedback, I'd be happy to contact you via your web sites. Please do let me know if this is not done here... but if it's cool, and you're up for it, let me know... Thank you!

 

[FIZIX Agency]

Two more things... I'd like to understand better in how far a Proposal that has been agreed on by both sides in writing is legally binding, and if a Contract for the same project as described in the Proposal that is signed later on differs from the Proposal, how this discrepancy is resolved...

It isn't binding because it's not a contract and there is no implied contract because a contract followed (I'll get onto this in a moment).

The proposal is an offer, your conversation afterwards are just a precursor to the contract; you agreed to go with the designer and the designer sent his contract.

If I write up a proposal for a client and they say, "yeah that's perfect, I'd like to go ahead with you" and they changed their minds or just ceased communication, then I can't hold them to it.

By the same token, if I send a proposal to a client, they say "yeah, that's great, lets go ahead" a few weeks later and I respond saying, "I'm sorry, for such and such a reason I cannot take this on now", they can't hold me to it.


The only way in which a proposal becomes a contract is if there isn't a contract and work actually commences. If that were to happen then the proposal and email conversations would be taken as the contract.

That's not because a proposal is and can be a contract though; that's because the proposal and email conversations are all that there is and therefore you're falling back on them because there is nothing else to fall back onto.

And you can find yourself in gray legal ground in that situation.


This designer, whether his work was good or bad, gave you a proposal and then sent you a contract which you agreed to. The only time that proposal and the email conversations would become "a contract" is if he never sent you a contract; which he did, so the proposal is not a contract.


The fact that the contract differed from the proposal is kind of irrelevant when the difference is the additional of contractual terms and conditions and legal stuff (which wouldn't normally exist in a proposal anyway).

 

[FIZIX Agency]

I'll also add;

If we attempted to send an invoice and began work based soley on the proposal and didn't send a contract; most of our clients would ask what the heck we are doing and back away. It would be an outright deal breaker and would probably be the death knell off the project.

There are some exceptions with very small or ad hoc jobs that are really, really small; where invoicing is on completion of task. But for actual projects; there is always a contract, it's expected and nobody considers a proposal a contract.

One of the first rules providers tell newbie designers/developers is that you should always, always have a contract.

By the same token we always warn businesses that are getting their first ever site done, to make sure the provider presents a contract and if they don't, demand one or walk away.

While the proposal and conversations can stand as a contract in the absence of a contract; the enforcement can be very difficult to make stick and you get into a very messy legal battle as opposed to a clean cut one should it all go wrong.


That should tell you how much of a contract a proposal actually is... as in, it isn't.