Software development and customer relations from the point of view of a lawyer

IT and software companies often face a situation where a client , like the former, violates payment terms or puts forward more and more new requirements at each stage of the project, making the process of redesign endless. You start to get angry, they start to get angry. But in the end it turns out that it is all your fault: it was you who delayed all the deadlines and that you will be left without money. And they, taking all the things of the work, go to another.
The trouble is that you are to blame for everything. Omissions in the contract or in the work with the client can lead to the fact that it will be difficult or even impossible to protect your rights even in court.

Let us analyze the main mistakes that the development companies make.
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1. The subject of the contract is not defined.
The subject of the contract is exactly what the customer's lawyers will poke you into!
You can calculate them. For example: “The Contractor develops a website for the Customer” or “The Contractor provides software development services”.
However, of all these speech turns it is difficult to understand which software is being specifically developed and which particular requirements are imposed on it by the parties.
Blurred wording - that's what it's called!
Such a contract may be declared not concluded (and therefore, you can forget about your money). If no one has poked you at this point before the judge, then the latter will do it easily and naturally. For example, like this:

“The court of first instance established that the subject of the contract was not determined by the parties, since the contract contains a general phrase about the defendant’s execution of the website development work; the site name, its content, Internet address in the text of the contract are missing, it is impossible to establish which web site is obliged to develop the respondent for the plaintiff, it is not possible to establish the initial and final deadlines for the work of the defendant "(Resolution of 08.15.2014 on the case number A19-16165 / 2013).

It will be difficult to convince him ... But there is a chance! Fortunately, not all courts adhere to this position. In another decision, the court noted:

“The question of the non-conclusion of the contract in view of the uncertainty of its subject and the timing of the work, the absence of a technical specification for the development of this site should be discussed before it is executed, since the uncertainty of these conditions may entail the impossibility of the execution of the contract. If the contract is executed, the specified conditions are not considered inconsistent, and the contract is not concluded in the executed part ”(Ruling on case No. 32-22518 / 2013 dated June 27, 2014 of the 15th AAC).

It is precisely because of such blurring in the contract that the customer has the right to impose constant requirements for the finalization of the product when accepting the result of the work (and all because specific requirements for quality are not specified in the contract). Thus we come to the next item.

2. Requirements for acceptance of the result of work are not installed
If the contract does not describe a clear procedure for acceptance of work, then it will be difficult to prove that you are not cheburashka passed the result.
In an ideal contract, it is necessary to clearly state the procedure for presenting the result of work, the procedure for sending the certificate of services rendered to the customer and the procedure for signing (acceptance) of the certificate by the customer.
Remember! It is a written document in most cases will be a guarantee of payment for work.
Of course, you can prove the actual performance of work in the absence of documents, but it is more laborious and risky.
Well, the main thing here is to follow the stipulated procedure yourself, otherwise the same item will be a weighty argument against the performer, that is, you. Read more about this in the third paragraph.

3. Requirements for acceptance of work established by the contract are not met.
There are situations when the order of transfer of the result of work in the contract is registered, but not respected by the performer. Happen after all?
With such a development, the fact that the transfer of the product did take place will mean as much to the court as your honest word.
So, in one of the decisions the court indicated:

“... as follows from the case file and established the courts, the fourth stage of work was not accepted by the Entrepreneur due to non-fulfillment in terms of opening the site to the public. At the same time, the Company did not carry out work on placing the site on the customer’s server due to the failure of the individual entrepreneur N. Zhabotin I.N. to the server and the inconsistency of the technical specifications. The coordination options proposed by the executor were rejected by the Entrepreneur ”(Decree on case No. 82-1396 / 2013 dated July 22, 2014 FAS BBO).

Correspondence by e-mail and sending the result of work by e-mail are rarely recognized by the court as the proper fulfillment of obligations. In one of the cases, the court directly indicated:

“... The defendant, in confirmation of the fact of the performance of work under the contract, submitted correspondence by e-mail between the customer (Claimant) and the contractor“ Intek ”LLC (manager, designer).
The arbitration court, having assessed the evidence submitted by the defendant in support of the fact of work performed for the claimant, concludes that the respondent did not submit to the claimant the acts of the work performed, which would be signed by both the person transmitting the result and the person receiving the result , this evidence cannot be taken as appropriate to confirm the legally relevant circumstances of the case - the fact of the work and the transfer of the result in the prescribed manner; evidence of the acts of acceptance of work performed or other notification of acceptance of the results to the plaintiff by the respondent in the case file is not presented (article 65 of the Arbitration Procedure Code of the Russian Federation) "(Decision on case No. 76-16845 / 2014 of 04/06/2015 AS Chelyabinsk region. ).

No matter how much we worry about cutting down trees, the exchange of real papers is necessary. And it must be done on time!

4. The obligation of the customer to provide information or documents is not fixed.
It is clear that to create a quality product, the customer must provide information to the contractor. The delay in providing information is delayed by the performer.
“They are to blame themselves!” - you will scream heart-rendingly in the courtroom, banging yourself with a heel in the chest, but all in vain. Because the contract did not spell out the obligation of the customer to provide specific information, and therefore it would be impossible to refer to the customer’s failure to perform such an obligation as the reason for the violation of the terms of the contract.

5. The contract is not approved in the manner prescribed by law.
Do not forget that the contract for the development of software (website) by law can be a major transaction or a transaction with an interest, which means that you must follow the general procedure for approving transactions.
Otherwise, there is a risk of invalidation of the contract. So, in one of the cases the court indicated:

“Considering that the evidence in the case file does not show evidence of the use of LLC KLIN Service, as part of its business activity, developed by IP Reshetnikov D.G. software, the court concludes that the defendant’s argument (IP Reshetnikov D. G .) that the disputed transactions were concluded within the framework of ordinary economic activity, since they were concluded within the framework of the activities prescribed by the company's charter, cannot clearly indicate the conclusion of the disputed transactions within ordinary business activities with subject to disputed contracts: execution of work on the drafting of technical specifications for the development of software for the project "Management of freight", the development of software "Management of freight" "(Decision of June 19, 2014 on case number A40-14292 / 2014) .

That is why it is necessary to ask for a copy of the customer’s charter and carefully read the items that will concern the area of ​​the customer’s business where you are going to restore beauty and order. But we never have time to deal with such nonsense, we need to get a prepayment soon! So we come to the most "delicious" in our article.

6. The contract is not signed
We have prepared a contract. Sent it to the customer, but ... Where is the second copy? Was there a boy?
The absence of a contract is likely to prevent debt collection. The fact that the contract was sent by e-mail, but not signed (the scan can save, so it also needs to be done) will not be accepted by the court.
Considering one of the cases, the court directly indicated:

“As follows from the case file, the respondent, objecting to the satisfaction of the claims, referred to the actual execution by A-68 of the development of the website on the instructions of the claimant as part of the contract dated December 13, 2012 No. 2012-12-13-1.
Since the disputable contract was not signed by the plaintiff, the respondent’s reference to this document as the basis for the occurrence of the respective rights and obligations of the parties was not legally accepted by the court of first instance ”(Ruling No. A33-17884 / 2013 dated August 4, 2014, 3rd AAC).

Morality
Do not neglect the rules of registration of the contract, and then you can protect your interests ... It is likely that the case will not come to court.
Good luck!