How I defended the interests of the studio in court

    Continuing a series of articles on a legal topic, some of which are about contracts and rights in the studio’s business ( 1 , 2 , 3 , 4 , 5 , 6 ), and a part about my participation in court as a witness ( 1 , 2 ), I’ll talk about how had to participate in the trial as a party.

    First, briefly, then in detail with the documents, then actually about the court (the customer and the persons will not be named).

    Briefly
    A large client with 4 levels of management (board of directors, managing director, service manager, service employee) wanted a website. A tender was held, we won. The budget was small but bearable. In mind, it was necessary to double that, but the tender + pressure on the reputation and the fact that such work is beneficial to have in the portfolio (we have 30 such works in the portfolio; this is good, but not a reason to work at a loss).

    An agreement was concluded with the usual terms on both sides, which an efficiently managed business can withstand (for example, 7 working days for consideration of layouts, 10 working days for consideration of TK, etc.).

    In the course of the project, the personnel department spoke to us (strange, but true). To this day, I have seen the person who signed the contract 1 time - during the tender, that is, about 2 years ago.

    Everything was done by the customer very slowly and with the constant advancement of new requirements, wishes and indications such as “but we have still found”. There were delays on our part for various reasons. The situation required several meetings, heaps of expenses, connecting additional forces and performing actions. As a result, we made a layout that met all the requirements that we knew about. Just at that time, the vacation period began and the feedback from the customer came to naught. The one, the other, the third on vacation, the decision was not made, the board of directors did not meet, etc.

    Mutota.

    I put up with it for two months, then informed the customer in a telephone conversation our position in approximately this form: accept the job, tell me what’s wrong, but if you continue to take time, I will demand acceptance of work and payment of downtime under the contract at the rate of 0.1 % in a day.

    They told me: “Ah, so! Okay". And two days later we received by fax the “Cover letter to the notice of termination of the contract” (without the notice itself).

    Fuss began, as hemorrhoids as the project itself. By this time 11 months had already passed since the start of work and I was tired of the order. I must say that we acted quite competently from the point of view of paperwork and were ready to demand payment for the design in full.

    The fuss lasted two months, then I spat and scored, retaining the prepayment and giving all employees their bonuses for the completed part of the project.

    After 10 months, the Customer filed a lawsuit with the Arbitration Court demanding to return all prepayment and interest by another 20% of the contract amount. I had to sue.

    Invoice

    The text of the claim is shown in the pictures.




    This is what the Plaintiff was going to show and prove in court. I disputed some of the facts, some were mixed up in the lawsuit, some essential things were simply forgotten.

    The court accepted the application and invited us, that is, the Respondent, to the preliminary hearing.

    I had to write two documents. The first is a response to the lawsuit. It is written in the form of a response to requirements. What I disagree with and why. Nothing more, with the application of all documents.
    The second is a counterclaim. I had a lot of complaints and additional facts that the judge needed to know about. I did not intend to earn on penalties and fines, but it is important to fight in someone else's territory so that the spent money for the design certainly remains with us.

    This is, with some clarifications and simplifications, the text of the counterclaim, so the style is the most wilted and boring that you can invent.

    Counterclaim

    1. According to clause 4.3.1 of the Agreement, within 10 working days from the date of commencement of work, the Customer is obliged to provide all the necessary information for the performance of work. According to clause 4.3.2, if information is not enough, the Customer provides information upon request within 5 working days.
    On December 25, 2007, the Contractor sent to the Customer's address a draft technical specification with questions for the performance of work, which is confirmed by a letter

    // screenshot of the letter

    According to paragraph 4.3.1. Of the Agreement, the Customer was to provide answers to questions no later than January 15, 2008.
    However, the Customer fulfilled his obligations inappropriately. Only on February 15, 2008 was all the information transmitted for the preparation of the terms of reference.
    Thus, the delay of the Customer is 23 working days.

    Clause 5.7 stipulates that in case of failure to comply with the terms stipulated by the contract, the guilty party shall compensate the other party for losses in the amount of 0.1% of the total cost of the Contract for each working day of delay.
    The default interest is ******* rub. * 0.1% x 23 working days = **** rubles ** kopecks.

    2. Paragraph 6 of the Statement of Claim contains a statement about the delay by the Contractor to provide 2 design mock-ups for 32 business days, which is not true:
    - the technical design (attached) was signed by the Parties on February 22
    - two different design mock-ups were provided by the Respondent on March 11, 2008, which confirmed by a letter (according to clause 3.1. of the Agreement, the Contractor provides the results of work by e-mail)

    // screenshot of the letter

    Subsequently, the Customer’s representatives in telephone conversations and e-mails (Appendix x) expressed to the project manager of the Contractor wishes to develop an additional version of the site design.
    The Contractor, meeting the wishes of the Customer, prepared 1 more version of the site’s design layout on April 22, 2008, which is confirmed by a letter (in accordance with clause 3.1. Of the Agreement, the Contractor provides the results of work by e-mail).

    // screenshot of the letter

    3. According to paragraph 3.2. Within 5 days from the receipt of the Design sketches, the Customer selects one of the sketches, which the Contractor notifies, sending him the First Remarks in the form of a letter signed by the head and stamp sent by Russian Post or by sending a fax.
    However, the Customer has not fulfilled its obligations. A letter drawn up in accordance with the requirements of the Agreement was not received by the Contractor.
    However, after 28 working days from the moment of submitting two design layouts stipulated by the Agreement (and after 8 working days from the moment of sending the 3rd design layout), the Customer sent an email entitled "Site Comments" by the

    Contractor, paying attention to the violation of the form providing a response in accordance with clause 3.2., but driven by the goals of the earliest and best fulfillment of obligations, accepted this email as the First Observations provided for in the Agreement.
    Thus, the delay of the Customer is 28 working days.
    Clause 5.7 stipulates that in case of failure to comply with the terms stipulated by the contract, the guilty party shall compensate the other party for losses in the amount of 0.1% of the total cost of the Contract for each working day of delay.
    The default interest is **** rub. * 0.1% x 28 business days = ***** rub. 52 kopecks

    4. 05/21/2008, the Contractor sent the design layouts of the ****** website according to the requirements of the Remarks, which is confirmed by a letter (according to clause 3.1. Of the Agreement, the Contractor provides the results of the work by e-mail)

    // screenshot of the letter

    5 According to clause 3.4. The Contractor shall, within 5 days from the receipt of the Design sketches, send the Second Comments to the Contractor in the form of a letter signed by the head and stamped, by Russian Post or by sending a fax.
    However, the Customer has not fulfilled its obligations. A letter drawn up in accordance with the requirements of the Agreement was not received by the Contractor.
    On May 27, 2008, the Contractor was instructed to draw or cut out the photos that were sent by the Customer. The Customer sent to the Contractor more than 10 large-format photographs for processing.
    On May 28, 2008, the Customer was notified that the photos sent were not suitable for creating illustrations.
    2.06.2008. The Contractor, acting in accordance with the agreement, sends requirements to the materials that are needed to create illustrations. Photo for the website header

    At a meeting on June 5, jointly by representatives of the Customer and the Contractor (name, full name, full name, full name) it was decided that the Contractor is trying to create an illustration based on the photos sent or is considering the option of creating an illustration as a separate work.
    At the same time, it was jointly decided that the period of work on illustrations extends the period of work on the design, since the task goes beyond the scope of the signed project.
    It was also said (in particular, full name) that there are NO complaints about the design of the page, with the exception of new wishes on the top of the page (caps)

    A complete set of photos for creating illustrations was sent by the Customer on June 10, 2008 (more than 30 letters with photo materials).
    Starting from June 10, 2008, the start of work according to the Customer’s Second Observations (paragraph 4.1.4 of the Agreement) begins
    on June 11, the requirements for the illustration of the plant were systematized and sent to the Customer.

    6. 06/17/2008, the Customer sent a letter to the Contractor with a proposal to analyze the found site and to develop the ideas expressed earlier.
    The Contractor claims that this letter contains the SECOND set of instructions for actions in excess of the scope of work specified in the Technical Project when concluding the Agreement.

    The Contractor claims that the Customer was notified that the illustration is a new work that will require additional time. A significant number of materials sent to her are proof of this fact.

    7. July 11, 2008, the Contractor sent the Customer a set of sketches, taking into account ALL the wishes of the Customer.

    // screenshot of the letter

    No response from the Customer to this letter has been received. In numerous attempts of the project manager to contact the Customer’s representatives to get an answer, various employees of the Customer claimed that there was no answer, that the responsible persons were on vacation, that “the board of directors did not discuss the issue”, etc.

    8. Clause 3.6 of the agreement states: “Within 5 working days after the submission of the design of the Site to him, the Customer provides written confirmation of the adoption of this design or gives a reasoned refusal to accept the work. If a motivated refusal is not provided within the indicated period, the work shall be deemed accepted. ”The
    work was sent on July 11, on July 18, the 5-day deadline for acceptance of work expired, on August 1, the deadline for submitting claims for accepted work expired (clause 4.4.2 of the Agreement).

    9. In the absence of an answer to the transferred work, the Contractor considered it accepted. After 30 days, during which the Contractor made repeated attempts to receive a response from the representatives of the Customer, the Contractor sent an official letter asking him to accept work or send a reasoned refusal. According to the letter of the Russian Post (Certificate of 400005 branch of the Russian Post is attached), this letter was received by the Customer on September 1, 2008. This letter is the second attempt to receive a response from the Customer.

    10. On September 23, 2008, the commercial director of the Contractor Ovchinnikov personally delivered the results of the work on the laser disk, the Acts of the work performed and an official letter addressed to the head of the Customer, which was accepted by the Office of the Customer (attached). This letter is the third attempt to receive a response from the Customer.

    11. The documents referred to in paragraphs 8-10 of this document remained unanswered by representatives of the Customer.

    12. The customer submitted the document “Notice of termination of the contract” dated September 19, 2008 in the
    Claim. On September 24 , 2008, the Contractor received a facsimile copy and the original of the Covering Letter to the “Notice of Termination of the Contract”. The notice itself was not delivered by fax or original.
    - Clause 4.4.4 of the Agreement is not applicable for termination of the contract due to the lack of properly executed requirements that would not have been satisfied.
    - Upon termination of the contract in accordance with the Civil Code of the Russian Federation, the Customer is obliged to pay for the actually performed part of the work. Upon request, the Contractor will provide an estimate of the cost of creating the site design and additional work
    - a notice of intent to terminate the Agreement was delivered by Russian mail to the Contractor's address no earlier than October 1, 2008.
    - According to clause 9.4. A notice of intent to terminate the contract shall be sent at least 15 days prior to the termination date.
    - Based on the Date of the alleged termination of the contract on October 15, 2008, the delay of the Customer in the acceptance of work is 57 working days.
    - Clause 5.7 provides that in case of non-observance of the terms stipulated by the contract, the guilty party shall compensate the other party for losses in the amount of 0.1% of the total cost of the Contract for each working day of delay.
    - The penalty for delay in acceptance of design work is ***** rub. * 0.1% x 57 working days = ***** rub. 88 kopecks

    13. Thus, the Contractor claims that the Design work has been completed and must be paid. Payment is also subject to Fines in accordance with Clause 1, Clause 3, Clause 12 of this document.
    Custom design development ****** rub.
    Penalty for delay in accordance with claim 1. is ******* rub. * 0.1% x 23 working days = **** rubles 06 kopecks.
    Default interest under clause 3. is ******* rub. * 0.1% x 28 working days = **** rub. 52 kopecks
    The penalty for delay in acceptance of design work is ***** rub. * 0.1% x 57 working days = ***** rub. 88 kopecks
    Total total amount of cash actually spent by the Contractor under the Contract is **** rubles 46 kopecks.
    14. By the beginning of October 2008, it became clear to the Contractor that despite the large amount of work done jointly, the Customer had an intention to terminate the contract. Within 2 weeks, the representative of the Contractor discussed with the lawyer of the Customer the terms of termination of the contract, tried to contact the Director of the Customer for discussion.
    A draft agreement was formed on October 20, 2008 (Attached)
    An agreement
    to terminate the contract for the creation of a WEB-site No. ******, providing for full payment for the design work.

    The Contractor claims that the terms of the agreement were agreed with the Director of the Customer in a telephone conversation on October 10, 2008.
    However, this agreement was never signed by the representatives of the Customer.
    At this point, S. Ovchinnikov made more than 20 trips to the territory of the Customer. For reasons of economy and being confident that he was right, the Contractor did not insist on signing the document.

    Total total amount of money actually spent by the Contractor under the Agreement is ******* of the ruble 46 kopecks.

    Court
    At the preliminary meeting, I met with an intelligent and restrained lawyer, a representative of the plaintiff. The judge called us 35 minutes after the appointed time, so there was time to talk. As it turned out, he knew almost nothing about the case (he simply got acquainted with the material of the claim, he did not read the contract and documents). He was sent to present the case, but in general it is the competence of another lawyer, a girl.

    My position was this: it’s a thing of the past, I don’t want to lose a lot of time, but if necessary, I will sue for a long time and prove my case. I suggested that the lawyer analyze his and his evidence base and conclude an amicable agreement (for the design we get the money, the balance of the prepayment we return, no fines).
    While the lawyer was reading, a judge invited us. My power of attorney turned out to be framed not according to the rules, so the plaintiff's lawyer shared a sample.
    The judge listened to us (1.5 minutes each) and said, well, everything is in order, we are setting up a meeting. The plaintiff’s lawyer immediately said: “But here we have an amicable settlement ...” The judge said: “Well, bring it, we’ll draw it up.”
    The court was not going to do anything, all by ourselves.

    Since the guy lawyer was a temporary replacement, I was waiting for a call from the main lawyer girl. Nobody called me, as a result, after 4 days I called myself.
    They told me: yes, Stepan, we know that you are offering the world, we agree on such conditions: according to the world, you return everything to us, and we refuse fines and penalties. I was a little stunned and asked: did you read my review and counterclaim? “No, I haven’t read it.” I had to say that the documents should be read and thought over; that such an amicable agreement does not suit us at all; that we are ready to discuss the conditions, but the central point: payment for the design. Otherwise, I will sue for a long time and with pleasure.

    I must say that the familiar lawyers, with the help of whom I prepared the materials, predicted high chances to judge the design if the judge read and thought. It seemed to me that the judge was quite sensible, although far from IT.

    The lawyer girl said that she reads, thinks, and speaks with management.

    Total

    Another 3 days passed, the girl-representative of the plaintiff called and said that they accept my terms of a settlement.
    A few days later, the following agreement was signed in the judge’s office:



    We again waited a long time for the judge to receive, and I asked how the terms of the settlement were discussed. It turned out that the leadership did not want to pay at all, but, as the girl lawyer admitted, with such facts and documents, there was simply no chance of suing.

    The moral is simple: do the work, draw up paper, do not quarrel with customers and do not be afraid of ships.

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