Dispute under the contract for website promotion
With this publication we wanted to open a series of materials on judicial practice of resolving disputes in the IT field.
Let's start with the problems of working with SEO customers. To illustrate, one of the arbitration disputes was chosen, by the example of which one can see the court’s attitude to these services and offer some practical recommendations on reducing financial risks.
The customer (Claimant) appealed to the court with a request to terminate the contract for the provision of advertising services with the performer (Respondent), to recover payment under the contract and interest for the use of foreign funds.
The Arbitration Court of First Instance satisfied the claims, on the basis that the goal of the work, established in the terms of reference, was not achieved, there is no evidence of the execution by the contractor of the works named in the contract.
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The courts of higher instances reversed the decision and refused to satisfy the claim.
The reasons and conclusions are hidden under the cut.
1. Between the Claimant and the Defendant a contract was signed for the provision of advertising services, as well as the terms of reference to it, in accordance with which the contractor undertook to perform work on the optimization, promotion, support of the results of promotion, optimization of the Site on low-frequency queries.
Purpose of the work: website promotion at 1-10 position of the 1st page of search results in search engines Yandex, Rambler, Google, Search@Mail.ru and the subsequent support of the result of promotion for keywords chosen by the customer.
This contract was qualified by the courts as a contract for the provision of services [an agreement for website promotion ].
2. Electronic correspondence of the parties indicates that the Respondent has provided site optimization services, and an expert opinion confirms that the site has been promoted.
At the same time, the Defendant notified the Claimant of the presence of a factor adversely affecting the growth of positions (the presence of a large amount 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 site, and therefore, the Respondent did not have an objective opportunity to provide services to promote the site.
4. Since the fact of the provision of services by the Respondent to the Claimant is established, and the Claimant did not provide information and evidence that the services rendered were less than the transferred payment, there was no unjust enrichment on the Respondent’s side.
1. By its legal nature, the agreement for the promotion of the Site is a contract of compensated provision of services. 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. To achieve the goal of this contract, close cooperation of the parties is necessary , since, as a rule, the customer is responsible for creating the site content (one of the main criteria affecting the search requests), therefore, the possibility of changing it depends on it. If the customer does not fulfill his part of the obligations, the contractor is charged for delaying or refusing to provide services in the agreed amount.
3. In addition, the achievement of the objective of the contract will be impossible if the customer does not adhere to the recommendations of the contractor, or by his actions hinder the execution of the contract (for example, changing the password and login to access the site too often, etc.).
4. Since the provision of services is carried out in stages, the customer should monitor the progress of work and promptly declare the identified deficiencies in the work, as well as reflect this information in reports and interim acts (if their preparation is provided for by the contract).
Therefore, the contract cannot guarantee the achievement of a certain result and it is necessary to specify not only the obligations of the contractor, but also the obligations of the customer, as well as to establish certain deadlines for their execution. There must be a clear causal relationship between the obligations of the contractor and the customer.
In addition, the terms of the contract should clearly spell out the order of interaction, authorized persons, communication channels and forms of document flow.
Subsequently, these items will save you from unreasonable claims and blackmail of customers.
The review used the Decree of the Federal Antimonopoly Service of the West-Siberian District of June 2, 2014 in case number A70-2471 / 2013.
Let's start with the problems of working with SEO customers. To illustrate, one of the arbitration disputes was chosen, by the example of which one can see the court’s attitude to these services and offer some practical recommendations on reducing financial risks.
The essence 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 performer (Respondent), to recover payment under the contract and interest for the use of foreign funds.
The Arbitration Court of First Instance satisfied the claims, on the basis that the goal of the work, established in the terms of reference, was not achieved, there is no evidence of the execution by the contractor of the works named in the contract.
')
The courts of higher instances reversed the decision and refused to satisfy the claim.
The reasons and conclusions are hidden under the cut.
The reasons for refusal in the claim of the customer
1. Between the Claimant and the Defendant a contract was signed for the provision of advertising services, as well as the terms of reference to it, in accordance with which the contractor undertook to perform work on the optimization, promotion, support of the results of promotion, optimization of the Site on low-frequency queries.
Purpose of the work: website promotion at 1-10 position of the 1st page of search results in search engines Yandex, Rambler, Google, Search@Mail.ru and the subsequent support of the result of promotion for keywords chosen by the customer.
This contract was qualified by the courts as a contract for the provision of services [an agreement for website promotion ].
2. Electronic correspondence of the parties indicates that the Respondent has provided site optimization services, and an expert opinion confirms that the site has been promoted.
At the same time, the Defendant notified the Claimant of the presence of a factor adversely affecting the growth of positions (the presence of a large amount 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 site, and therefore, the Respondent did not have an objective opportunity to provide services to promote the site.
4. Since the fact of the provision of services by the Respondent to the Claimant is established, and the Claimant did not provide information and evidence that the services rendered were less than the transferred payment, there was no unjust enrichment on the Respondent’s side.
Comments
1. By its legal nature, the agreement for the promotion of the Site is a contract of compensated provision of services. 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. To achieve the goal of this contract, close cooperation of the parties is necessary , since, as a rule, the customer is responsible for creating the site content (one of the main criteria affecting the search requests), therefore, the possibility of changing it depends on it. If the customer does not fulfill his part of the obligations, the contractor is charged for delaying or refusing to provide services in the agreed amount.
3. In addition, the achievement of the objective of the contract will be impossible if the customer does not adhere to the recommendations of the contractor, or by his actions hinder the execution of the contract (for example, changing the password and login to access the site too often, etc.).
4. Since the provision of services is carried out in stages, the customer should monitor the progress of work and promptly declare the identified deficiencies in the work, as well as reflect this information in reports and interim acts (if their preparation is provided for by the contract).
Therefore, the contract cannot guarantee the achievement of a certain result and it is necessary to specify not only the obligations of the contractor, but also the obligations of the customer, as well as to establish certain deadlines for their execution. There must be a clear causal relationship between the obligations of the contractor and the customer.
In addition, the terms of the contract should clearly spell out the order of interaction, authorized persons, communication channels and forms of document flow.
Subsequently, these items will save you from unreasonable claims and blackmail of customers.
The review used the Decree of the Federal Antimonopoly Service of the West-Siberian District of June 2, 2014 in case number A70-2471 / 2013.
Source: https://habr.com/ru/post/290068/
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