I have been debating this for some time but just got smacked AGAIN with a client that never seems to have the time to answer emails or get me content that is needed to finish a project so I am ready to add this to my standard contracts.
I talked to one other developer that takes the customer’s CC number to bill them and has a clause that gives them x amount of time for each stage and if they don’t respond the contract gives him permission to bill the amount due in full after x amount of time. I find that a tad too drastic and feel it might cause some prospective new clients to balk at signing a contract so here’s what I was thinking:
An ‘abandonment clause’ that simply states if the client has not made contact with me, either about the ‘next phase’ or even if they haven’t gotten me content I might need within a specific amount of time (I’m talking a few months here) I will consider the project abandoned and all fees are due immediately.
While the CC thing I mentioned above packs more clout it can also cause chargebacks and banking hassles. I’m thinking my version might carry more legal weight without worrying about chargebacks.
Or, don’t bill them at all and keep the work. You can sell the product to a new client for a similar price. I’ve done this before and the new clients are usually fine with it too. This way you kill 2 birds with 1 stone and life goes on as usual
Ours says that if we have not been able to contact the customer for 30 days, the project is considered abandoned. We then look at how far we got on the project. If their initial deposit doesn’t cover all the hours spent so far on the project, we then invoice for the amount of extra hours at our hourly rate. If their initial deposit covered more than those hours used, we keep it. All this is laid out in the contract.
I think it’s reasonable to include an abandonment clause, however you need to ensure that you state that all appropriate action to try and contact the individual was taken (as in through any ports of contact they gave you… written, phone, email, IM, Skype… whatever). It needs to appear (in case they re-appear claiming you dumped them without cause) that you made every conceivable effort to get in touch with them before declaring the project as abandoned. As such it also makes sense NOT to simply delete the project work or recycle it upon abandonment, there may be a good reason (such as illness) why they were unable to get back in touch and post the 30 days grace period you should hold the project “frozen” in hiatus for a month or two further just to ensure every potential avenue is covered. Apart from that, make sure you state the clause clearly before they sign the contract so their aware of the consequences of non-commitment.
This seems like a ‘duty to cooperate clause.’ Depending on your jurisdiction, there may be a problem with the “conscionability” of said clause if you basically get “expectation damages” and in return you give nothing. I think that the abandonment of the project would be the right tactical decision to pursue.
Essentially you want to ensure that if the client does not cooperate or does not respond within a reasonable time, any money received is non-refundable to the client. Any work completed likely belongs to the client. I believe a court would not permit you to hold on to both the money and the work completed as this would touch upon unjust enrichment.
Therefore, you should be concerned with outlining what is a reasonable amount of time for a client to respond to requests for information. You need to also include what is expected of the client, for instance: pictures and any other content that they are expected to provide the developer. It is a good thing to try and foresee any sort of problems you may have in the future.
Good luck.
This post does not constitute legal advice. You should not act or rely on any information enclosed in this posting. Samardin, LLC. | Law Office, NY & NJ Licensed
