Development Gone Wrong: What to do if your developer has a howler

by Startacus Admin

Development Gone Wrong! This article from the good folk at Linkilaw will look at what to do if your developer has a howler & how to manage the problem, from prevention through to cure...

"This is an all-too-common story these days in the thriving tech world. Too many companies are having developer issues, many of which lead to costly and inefficient litigation.

You’re an idea guy or gal. You see the big picture, you have the spark that ignites your business. You’re not technical, so you do the smart thing and hire someone who is. You spend time with them over Skype, the phone, even in person to make sure they understand the vision and scope of the app, the software, the website you want to sell to the masses.

You ask for updates, but most of them are tech jargon beyond your understanding. Besides, you’ve got a business to start, so you trust that they know what they’re doing and look forward to seeing the masterpiece on delivery.

That fateful morning you impatiently refresh your inbox until it appears. And when it does, you know right away it’s a disaster. Full of glitches, visually unappealing, and on the whole, worse than bad because you’ve spent money and wasted time on it.

This is an all-too-common story these days in the thriving tech world. Too many companies are having developer issues, many of which lead to costly and inefficient litigation.

This blog will take you through some of the key points, from prevention through to cure. How can you prevent these scenarios from happening? What are the documents you need? What steps should you take if the developer doesn’t deliver as expected? Read on…

How can you prevent poor development?

Get some contracts! They don’t have to be 50 pages long, but get something in place. A Development Agreement or Consultancy Agreement that sets out your expectations for the partnership - what they can expect from you and what you hope to receive from them. It will get the two of you (quite literally) on the same page and, if something goes wrong, you’ll have a document to point to to support your argument. If necessary, you’ll have grounds to sue.

What should the contract include?

• The Basics: Explain what the contract is, the parties it relates to, and any relevant definitions.

• The Services: What is the developer/consultant doing for you? Include as much detail here as possible.

• Payment Terms: When you will pay the developer and how much you will pay?

• Termination Clauses: These explain in what circumstances the contract can be terminated. These clauses will provide an amount of notice required before you can terminate and what occasions where the contract can be terminated without notice.

• Intellectual Property (IP): Arguably the most important clause in a developer contract, this will determine who gets the finished product!. It may sound obvious, but we have dealt with a number of startups who have paid for developers to create their product, only to realise upon completion that all the IP rights belonged to the developer.

These aren’t exhaustive by any means, but they’re a start. Any development contract without those terms would have some serious problems.

It is also worth checking your developer’s Terms of Business. They should be shown to you, but if not, make sure there aren’t any hidden terms you’re signing up for.

I didn’t sign an agreement, now what?

Don’t panic! While a contract is massively beneficial, there are ways around this problem.

1. Keep a close eye on things. Just check in regularly with your developer. Develop milestones and ask to see work in progress. Keep it all friendly of course, but if necessary, remind them what you are hoping to get out of the project.

2. Keep a record of all communication. Gather together all the email conversations you have had and save all the ones you have from this point on. Keep them in a safe space and email them to another account to back them up if necessary. While a contract is most obviously valid if written down (as described above), a contractual relationship can still exist without this document. Any agreements you came to over email may be enough to satisfy this.

3. Get a contract! Suggest to your developer that you write something down on paper and both sign it. Look to include all the above terms (and more).
   
   

The worst has happened; now what?

Let’s look at some solutions. We’re going to list these roughly in order of most to least preferable.

Talk it out.

Yep, that annoying thing that your parents used to suggest you try with siblings. ‘Can’t you just talk it out?’

Mention that it would be in both of your interests to sort this out quickly and without fuss. And, as before, save all communication. If talking it out doesn’t work, you will need those emails to show your lawyer.

Speak to a lawyer.

Talking it out didn’t work? Time to chat to a lawyer.

Many people will run a mile at this stage, terrified by the prospect of legal fees. A one-hour consultation with a specialist startup lawyer will transform your situation and shouldn’t cost more than a few hundred pounds.

They will be able to review all your company documentation, all those emails you’ve been saving up, and any agreements you had with your developer. They will provide advice on the strength of your position, and on the steps you should take going forward. If necessary, they will be able to send your developer a scary letter - a letter explaining that you have sought legal advice and that you are prepared to sue.

Most of these disputes get sorted at this stage (lots of developers will panic and fold) and yours should too. If not, however, things get trickier.



See you in court (or in mediation)

Okay you don’t have to go straight to court, but go back to your lawyer. Depending on the issue at hand the steps here will be different. But generally speaking it will involve another (more serious) letter saying that you are sueing them for breach of contract and that you are prepared to go to court if necessary. If you believe they have stolen your IP, there could be theft issues as well, which could mean criminal charges.

If this still doesn’t get a good response from them, then you may need to go to court. This step is really best avoided if possible. Litigation rarely leads to good results for both sides. Costs will pile up and there is no guarantee that you will get those fees back (if you win the case you will normally, but not always, be awarded costs).

If you didn’t have a contract, courts will generally look at what the intentions of the parties were and what should reasonably be expected of the partnership. So, whatever happens, make sure you keep record of all communication and of the general pattern of conducting business. This can all be used as evidence in your favour.

There is also the option of mediation. This is behind-closed-doors negotiation between the two parties, presided over by a neutral lawyer. The advantage of this is it stays secret - there are no public court cases and there is no one involved apart from the three of you. It also often leads to better outcomes for both parties.

Conclusions

Prevention is always better than cure. Spending a few hundred pounds on a well-worded contract can save you a huge amount of time, energy, and cash. Always keep a record of your communication and keep tabs on your developers.

And if it does go wrong? Don’t panic - speak to a good lawyer. As above, the goal should always be to nip these things in the bud before they spiral."

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Published on: 6th March 2017