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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25426
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I have a software development contract with a publisher who

Resolved Question:

I have a software development contract with a publisher who is late paying their invoices. Today they asked for a fix to a build submitted on the 12th March which Apple today rejected from the app store and requires a simple fix. I responded that I would do the work once outstanding invoices were paid.

They then claimed that I would be in breach f the following clause by not working immediately on the problem:

"The publisher will test any builds supplied and will revert back to the developer within 48 hours. Should any build be considered not fit for purpose the developer will work on rectifying the problem immediately (within normal business hours assuming no staff sickness or pre-booked holidays"

When this clause was written I assumed it mean't that with the 48 hours after submitting a build I would work on any issues found immediately, not an indefinite I will work on any problem immediately.

Where do I stand on this?

Can they bring any other action against me by my refusing to supply a build due to non payment of invoice. For example loss of earnings due to late release, nothing in the contract mentions this.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if the clause as you have kindly posted it is one clause or is it more than one clause in the agreement please?

Joshua :

What are your payment terms for this work and are they overdue from what you say?

Customer:

Hi

Customer:

The quote is a single a single paragraph preceeded with a number 6.12

Customer:

there being 12 other clauses in section 6

Customer:

By overdue I mean that the invoice has payment terms of 7 days specified on it. However the contract does not specify these terms.

Customer:

In fact the only section in the contract regarding payment times specifies:

Customer:

B1.4 all sums due to Developer shall be paid by wire transfer to the bank account designated by Developer, within 1 day of receipt by Publisher of a full and correct invoice for such sums from Developer, or the date set out in B1.1, whichever is later.

Customer:

Last date in B1.1 is 31st Oct 2010

Customer:

They now claim that they have not received valid invoices despite spending the last couple of weeks making excuses as to why they could not pay and sending me a future payment instruction printout from thier bank to be paid tomorrow.

Customer:

One of the invoices was missing the VAT number but a corrected invoice was sent back within 30 minutes of them spotting that on the 17th March]

Customer:

They are still pushing on clause 6.12 saying:

Customer:

6.12 reads pretty clear to me your interpretation is not correct

Joshua :

Thanks. Sorry for the delay in reverting to you. I have got caught on the phone. I should not be much longer...

Customer:

No problem

Joshua :

Sorry I am back. Just reviewing the above...

Joshua :

Thanks. On the basis the clause you have kindly reproduced one continuous clause which is the case from what you say, than the clause places collateral obligations on both of you. clause requires the clients to revert to you within 48 hours and goes on to say that you will rectify software that considered not fit purpose. have these been two separate clauses, with separate numbering, then the obligation upon you would be significant however given that they are contained in one clause, the only correct way to interpret you obligation is that it is subject to the client reverting to you within 48 hours.

Joshua :

from what you say, they have more than failed to do so and accordingly I believe you would be within your rights to advise that you are not bound by the rectification provision on the basis that the client failed to advise you within the prescribed 48-hour period

Customer:

Ok that's good to here I was concerened that the full stop meant that the two parts of the clause could be treated seperatey

Customer:

as they are currently saying:

Customer:

I strongly advise you upload the required build before you damage the launch of the product our reputation with Apple and become liable for damages which will we be seeking if you don’t. I have worked hard to obtain an apple feature for this game and this will be wasted if it goes live with the old version.

Joshua :

you may wish to point out to the client that payment terms under the agreement are one business days your invoices to provide for seven business day payment term which be the binding term. you may wish to go on to say that although you are not liable to rectify the software under the clause owing to the client's failure to notify you within the 48-hour period, you will be happy to do so on receipt of payment of your invoices As a gesture of goodwill.

Joshua :

You may wish to go on to remind the client of their liabilities and obligations in particular under the Late Payment of Commercial Debts (Interest) Act 1998 which allow you to charge interest at 8.5% per annum unless of course your terms provide for a higher interest figure

Customer:

As part of the Payment appendix it says: B1.1 in consideration of the rights acknowledged and granted herin, Publisher shall pay to Developer a fuly-recoupable payment of £12620 (GBP). This shall be paid, as follows, provided that a correct invoice has been received in good time from Developer and the code drop has been provided and verified.

Customer:

This full payment was paid by the end of October 2013 although no code drop was made as it was never asked for. However they are trying to use the above to specify that my current invoices are not valid becuase I have not provided a code drop for them.

Customer:

A seperate clause 6.10 says Insurance and Assets. Developer shall lodge each week all assets, code and work in progress with Publisher once payment has been received.

Joshua :

Are you able and willing to supply the code drop at this stage?

Customer:

And we are working under a small clause 9) For any future work, upgrades or conversions of the products requested by the Publisher, The Developer will schedule the work required based on a daily rate detailed as per the following, list of rates

Customer:

I have supplied the ode drop for that build

Joshua :

Thanks; providing it has now been supplied they cannot rely on the technical omission on your part at the time to not pay what is owed. Providing it has not been supplied the invoices are due.

Customer:

I'm arguing that I do not need to provide code drops for the current work until payment has been made though. The code drop is for the £12620 31st Oct work

Joshua :

Forgive my ignorance - what is the difference between a code drop and providing code?

Customer:

nothing same thing.

Customer:

A zip file of source for the app.

Joshua :

Thank you. My understanding of the above is that in respect of the specific project for which a payment of £12,620 was agreed, that figure would only be paid after you have provided code. However, the general provision of the agreement in clause 6.10 provides that you do not need to provide code until payment has been received. Accordingly, my interpretation is that to provide code for projects other than that project specifically addressed in b1.1 until payment is received

Customer:

Thank you that's exactly how I would interpret it too.

Customer:

They are now promising to et up a BACS to pay on Tuseday as long as I submit the app today. Which I may well do and take the risk, is there anything I should say to make it harder for them no to actually make that payment.

Joshua :

You may ask them for a written unqualified undertaking to make £x payment in cleared funds to you by [Date]. You could use this if necessary to obtain summary judgement in court or send them a statutory demand for the payment if they reneg on the agreement.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

Yes thanks that's been very helpful.

Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.

Customer:

Will do, many thanks.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

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