Provider "forgot" to charge her for 4 yrs. Can she be sent to collection?

[NA N.]

Hi guys,

This is an unusual situation. My partner built a website in 2009 and paid for a plugin that displays homes for sale in maps etc.. you know the typical exchange service that pulls homes from the MLS.

Well, she paid $1000 back in 2009 that was supposed to cover 1 yr of service from the plugin, but then the company never sent her another bill, so she wait and wait and wait and come 2014 they never again billed her for the service.

Her website is still up and the plugin still works, so they pretty much let her use it all this time and forgot to bill her. She is retiring her license and is going to pull the website, so now she is wondering what to do about the plugin, should she leave it as is and it could be another 5 yrs.

If they realize they haven't charged for the service could they come now and send her to collection for all the 4 years she didn't pay and had the plugin on her website?

The contract was for 1yr and it was prepaid up front, but it states that after the year it goes month to month.

My take on this is that if she didn't pay a dime after the year passed and converted to the month to month, then that means that she didn't renew the contract and is off the hook. But not sure if they can say that she didn't give them notice of cancellation and since she continued to use the plugin, then she was still on a month to month and she owes them regardless of whether she paid or not. If that was the case though and she never said a word it would mean they could charge her for the next 10 yrs if they never realize this is going on. So I doubt the latter can be upheld against her.

But wanted to get more opinions to better advise her.

Here is the language from her contract:

"services will continue and be charged monthly to their credit card until canceled. After the first year of service, monthly renewal contracts are month to month and can be canceled at any time"

Clients that prepaid their services for the year will continue after the first 12 months at the monthly rate stated on the website. Monthly clients will continue as normal being charged the monthly rate stated on the website. All charges will be monthly and be charged to the credit card we have on file after the first year unless otherwise specified

"You shall pay the fees and other charges for the Services as stated your invoice or in this Agreement. All fees are due immediately and, except as expressly provided herein, are non-refundable. We reserve the right to
change its fees at any time. You shall make all payments in U.S. currency. Your credit card will be billed in advance for any and all fees. In the event that the Account is over 90 days past due the total value of the contract will be due immediately and will be turned over a collection agency if not paid immediately. We reserve the right to suspend or terminate your account if credit card charges are denied. Such suspension or termination shall not relieve you of the obligation to pay the fees due. You agree to pay us its reasonable expenses, including attorneys' and collection agency fees, incurred in enforcing its rights under this Agreement."

What do you think? Will they be able to send her to collection if they notice their mistake ?

If she is sent to collection, can she win if she goes to court base on the language of the contract and what happened?

[Jon A.]

I'd just shut down the site and move on with life.