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Alice H
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2847
Experience:  Partner in national law firm
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Business/contract law Hi - so I my company agreed to an

Customer Question

Business/contract law

Hi - so I my company agreed to an email marketing campaign by another company a few months back. Basically, they have a large email list, and I would "rent" their list to promote my website to their email subscribers.

Here are the details in the contract:
**£3,000 = 600,000 email sends**
**Targeting Consumers between ages 18-45 with bad/poor credit interested in taking out a phone contract**
**PDM Will provide 2 free alterations to your email HTML**
**Client can opt out of the campaign if we do not hit a 2% click through rate after 1 alteration to the HTML design**
** guaranteed click rate is dependent on PDM approving the HTML design**
**600,000 to be split into 6 x 100,000 sends**


The above is in the contract, and which is what I agreed to. I signed the contract.

They delivered the first of the 6 sends to 100,000 emails. The conversion rate on my site was abysmal. The traffic sent was obviously poor quality. We made a big loss.

I inquired with them, and at first they would not accept the traffic sent was poor quality - that my site did not convert (it converts very well).

They have now admitted on the phone to me that the targeting was wrong - they did not target people aged 18-45, it was everyone. And they did not target people with bad credit. So the criteria "Targeting Consumers between ages 18-45 with bad/poor credit interested in taking out a phone contract" was not met.

So they want me to continue with the other email sends, and have apologised.

However, I am not so sure I wish to work with them anymore. They did a poor job the first time, and I honestly feel like I could not trust them.

Based on the information provided, do I have any legal standing to end the contract?

They have my deposit (£600 + vat), which would cover the first send.

Ideally I would not want to do additional business with them, and end the contract if possible.

Look forward to your thoughts - thanks.
Submitted: 3 years ago.
Category: Law
Expert:  Alice H replied 3 years ago.
Hello and welcome to Just Answer. My name is Alex and I'm happy to help with your question today.

Generally if a party fails to perform a condition of a contract and the breach is material, and no cure is available, the aggrieved party may:

-cancel the contract and sue for all damages under the contract; or
-continue the contract and sue for partial damages

If the breach is not material, the aggrieved party cannot usually cancel the contract and can only sue for partial damages.

I think you would argue that the breach is material and the failure to send the e-mails is clearly fundamental to the aim of your campaign.

As such you would be entitled to cancel the contract and pay no more. Alternatively you would be within your rights to continue the work but with appropriate compensation for the error - this could be monetary to cover any loss or expenses or they could re-send the e-mails to the correct target market.


Customer: replied 3 years ago.

Thanks Alex.


So would this in your opinion count as a "material" breach.


They did not target the people who they said they would - e.g bad credit, even though they could have.


Would that classify as a material breach?


The "bad credit" aspect was fundamental to the campaign in the sense the website is targeted at people with bad credit.


Finally - could I also ask for my deposit back and if so, how would I got about this?



Expert:  Alice H replied 3 years ago.

As things stand I think the error by the company could be a material breach.

An analogy would be: ordering all left shoes but no right shoes. That is a material breach as a matter of common sense.

But if the breach is capable of being cured e.g. re-sending e-mails to correct audience and reimbursing any losses/expenses - then it would be difficult to argue this is so fundamental that you have to cancel the contract.

I do think you have to give the company an opportunity to rectify the mistake to your satisfaction. If they do not, you can pull out and cancel the contract and pay nothing (including deposit).

Customer: replied 3 years ago.

Thanks for clarifying that. Two questions on this


1) I have asked them for a complete resend, but they are refusing that. Have I done my bit?


E.g - if I say I am cancelling the agreement, they may well come back and offer a full resend. But when I asked them in email yesterday that they should because they were not sticking to the agreement, they refused.


2) It turns out that they don't actually have access to "bad credit" consumers. When they say bad credit, they simply mean "low income" people. Just on this basis alone could I cancel? As the contract does not clarify this, and I believed they actually did have access to people with bad credit.


3) How would I cancel the agreement and ask for my deposit back?


Would it just be a simple email such as "based on the fact that you did not honour the agreement, and there was a material breach which you were not willing to rectify, I am cancelling the contract and would request that my deposit is also reimbursed"




Thanks - that's about it! Everything else makes sense to me

Expert:  Alice H replied 3 years ago.
Hi there!

1. Yes. You've tried to resolve the issue by asking them to take the step they should have taken in the first place. Keep your emails as evidence of their refusal to make amends.

2. As a matter of common sense there's a difference between people with poor credit and bad credit. It appears they may have misled you to get your business. You would be entitled to cancel the agreement on the basis that (a) they made a misrepresentation about the class of people they would target plus (b) they failed to send the email anyway.

3. You should write to them cancelling the agreement forthwith. You should point out that you've paid for a service which has not been delivered. Plus they are refusing to rectify their mistakes. In light of these breaches you can say the contract has been repudiated and you seek the return of your deposit. You are entitled to compensation - a starting point is the return of your deposit but you would also be entitled to seek compensation for losses and expenses.

Hope this helps.

Expert:  Alice H replied 3 years ago.
We've been having technical difficulties but hopefully you received my last answer.


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