Dispute on a website promotion agreement

With this publication, we wanted to open a series of materials on the judicial practice of resolving disputes in the IT sphere.
Let's start with the problems of working with SEO customers. To illustrate, one of the arbitration disputes was chosen, on the example of which one can see the court's attitude to these services and offer some practical recommendations to reduce financial risks.

The content of the dispute under the contract for website promotion

The customer (Claimant) appealed to the court with a request to terminate the contract for the provision of advertising services with the contractor (Defendant), to recover payment under the contract and interest for using other people's money.

The Arbitration Court of First Instance satisfied the claims, based on the fact that the purpose of the work specified in the terms of reference has not been achieved, there is no evidence that the contractor has completed the work specified in the contract.

The courts of higher instances reversed the decision and rejected the claim.

The reasons and conclusions are hidden under the cut.

Reasons for rejection of a customer claim

1. An agreement was signed between the Claimant and the Respondent for the provision of advertising services, as well as the terms of reference for it, in accordance with which the contractor undertook to perform work on optimizing, promoting, supporting the results of promotion, optimizing the Site for low-frequency requests.

Purpose of work: website promotion at 1-10 position of the 1st page of search results in search engines Yandex, Rambler, Google, Search@Mail.ru and subsequent support of the promotion result for keywords selected by the customer.

The said contract was qualified by the courts as a contract for the provision of services [ contract for website promotion ].

2. Electronic correspondence between the parties indicates the provision by the Respondent of services to optimize the site, and the expert’s opinion confirms the work to promote the site.

At the same time, the Respondent notified the Claimant of the presence of a factor negatively affecting the growth of positions (the presence of a large number of materials copied from other sources).

3. In addition, after submitting a claim for termination of the contract, the Claimant closed the Respondent’s access to the website, and therefore, the Respondent did not have an objective opportunity to provide website promotion services.

4. Since the fact that the Respondent rendered the services to the Claimant was established, and the information and evidence that the services were provided in the amount less than the listed payment, the Claimant did not submit, unjust enrichment did not arise on the side of the Respondent.

Comments

1. By its legal nature, an agreement to promote the Site is a contract for the provision of services for a fee. Therefore, unlike the contract, the customer here does not pay for the result of the work, but for the performance of certain actions (activities).

2. In order to achieve the goal of this contract, close cooperation between the parties is necessary , since, as a rule, the customer is responsible for creating the site content (one of the main criteria affecting search queries), therefore, the possibility of changing it depends only on him. If the customer does not fulfill its part of the obligations, the contractor is charged with the fault for delay or failure to provide services in the agreed amount.

3. In addition,achieving the goal of the contract will become impossible if the customer does not adhere to the recommendations of the contractor, or if his actions impede the execution of the contract (for example, changing the password and login too often to access the site, etc.).

4. Since the provision of services is carried out in stages, the customer should monitor the progress of work and timely report on identified shortcomings in the work, as well as reflect this information in reports and interim acts (if their preparation is provided for by the contract).

Therefore, it is impossible to guarantee the achievement of a certain result in the contract and it is necessary to specify not only the obligations of the contractor, but also the obligations of the customer, as well as establish specific deadlines for their implementation. Between the obligations of the contractor and the customer there should be a clear causal relationship.

In addition, the terms of the contract should clearly spell out the procedure for interaction, authorized persons, communication channels and workflow forms.

Subsequently, these items will protect you from unreasonable claims and blackmail of customers.

The review uses the Resolution of the FAS of the West Siberian District of June 2, 2014 in case No. A70-2471 / 2013.