We draw up a contract design studio, part 3: Contract Structure
The contract should not be hard-to-read continuous sheet of confused text. It should be structured if you have nothing to hide. In addition, there are mandatory and well-established sections, which I will describe below.
It is worth remembering about the principle of freedom of contract. That is, with rare exceptions, there are no strictly fixed names and formulations. You are free to create your own structure, your own section titles. Just do not be too clever about it, so that later there will be no problems in the interpretation of the text by the parties and the arbitrator.
Usually there are the following sections:
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We have sections in the contract that describe the order of interaction between the parties, the exchange of correspondence, and important messages. Important points of interaction, such as design approval, should be described in the form of a procedure and recorded in the contract.
What we call colloquially the contract heading, respectable uncles are called the preamble. Here are the details of the contract and the parties.
Contract details are not bank details. This is the number, place and date of the contract.
Each party ensures the registration of the contract under a certain number. How to assign numbers - a personal matter of each of the parties. Therefore, the numbers of the contract are usually two or more - by the number of parties, and the numbers go through a slash in the order in which the parties are listed.
To avoid misunderstandings, I recommend not to use a slash in your internal numbering. For example, if the cap reads "1231 / U / 2314", then how to understand where the letter "U" refers? How are the contracts numbered: "1231 / U" + "2314" or "1231" + "U / 2314"?
The place of drawing up the contract is essential for taxation. In most cases, you should specify your city.
In the description of the parties there are several important points. First, correctly enter the full names of legal entities.
Attention! The names of the parties in the preamble and on the seals must match the letter in the letter, otherwise the contract may be invalidated due to a silly typo.
Secondly, use the terms correctly, depending on the type of contract. For example, if this is a contract, then the parties should be called "customer" and "contractor". If this is a service contract, then the parties will be called the “customer” and “contractor”. In no case do not mix in one contract "contractor" and "performer", unless it is not three different parties agree.
By the way, if the contract is made incorrectly, and is considered null and void (there is such a thing in the legislation), then the transaction would qualify as a tax offense. Simply put, even if you did not plan to evade taxes, you can still be fined.
If it is easier: what, in fact, agree. The very essence of the transaction. It is clear that there will be a lot of conditions regarding payment, terms, sanctions and other things. In the subject of the contract you specify the very essence.
For example: "The contractor undertakes to perform the work specified in Appendix No. 1 (technical task) and transfer its result to the Customer, and the Customer undertakes to accept and pay for the result of the work."
This is the basic wording, it can be expanded and supplemented. For example, to put in the subject of the contract other important agreements, say, on the transfer of certain rights.
This section is very specific and difficult. There are practically no legal, unambiguous formulations in our industry.
With regard to web development: the parties should agree on what they consider to be, for example, a site. Otherwise, it turns out that the contractor had in mind the design, templates and engine, and the customer wants the content written.
By the way, it would be great to organize a working group here and work out jointly some terms and definitions, and settle them with lawyers.
This section is an essential condition of the contract. If there is no value or method of its definition in the contract or annexes to it, the contract may be declared not concluded! With all the consequences.
In the last post, I recommended putting the cost in the app. That is exactly what we have done. In the section "cost and settlement procedure" we refer to the application, which is an integral part of the contract.
Advice for companies working on the "simplified": after the cost, be sure to write "not subject to VAT." And in the contract, and in the acts, and in the accounts. If the money is sent with VAT, then there will be an extra hemorrhoids with their return and potential misunderstandings with tax.
The settlement procedure is an important topic. Usually they write here, they say, within so many banking days from the time of such and such to transfer to the current account ... settlements in rubles ... and so on.
In one of the previous notes, I wrote that the calculations should be carried out in stages . This is what allows us in the conditions when customers politely delay the last payments, not to fly into the minus. Here is the phasing, the scheme of calculations and it is necessary to prescribe in the contract (or in the application - the payment schedule, like ours).
I don’t want to write much today, but the continuation will probably follow ;-)
It is worth remembering about the principle of freedom of contract. That is, with rare exceptions, there are no strictly fixed names and formulations. You are free to create your own structure, your own section titles. Just do not be too clever about it, so that later there will be no problems in the interpretation of the text by the parties and the arbitrator.
Usually there are the following sections:
- Preamble.
- Terms and Definitions.
- Subject of the contract.
- Cost and settlement procedure.
- Timing.
- Rights and obligations of the parties.
- Responsibility of the parties.
- Confidentiality.
- Circumstances of force majeure.
- Dispute Resolution.
- Termination of the contract.
- Final provisions.
- Details of the parties.
- Signature and seal of the parties.
')
We have sections in the contract that describe the order of interaction between the parties, the exchange of correspondence, and important messages. Important points of interaction, such as design approval, should be described in the form of a procedure and recorded in the contract.
Preamble
What we call colloquially the contract heading, respectable uncles are called the preamble. Here are the details of the contract and the parties.
Contract details are not bank details. This is the number, place and date of the contract.
Each party ensures the registration of the contract under a certain number. How to assign numbers - a personal matter of each of the parties. Therefore, the numbers of the contract are usually two or more - by the number of parties, and the numbers go through a slash in the order in which the parties are listed.
To avoid misunderstandings, I recommend not to use a slash in your internal numbering. For example, if the cap reads "1231 / U / 2314", then how to understand where the letter "U" refers? How are the contracts numbered: "1231 / U" + "2314" or "1231" + "U / 2314"?
The place of drawing up the contract is essential for taxation. In most cases, you should specify your city.
In the description of the parties there are several important points. First, correctly enter the full names of legal entities.
Attention! The names of the parties in the preamble and on the seals must match the letter in the letter, otherwise the contract may be invalidated due to a silly typo.
Secondly, use the terms correctly, depending on the type of contract. For example, if this is a contract, then the parties should be called "customer" and "contractor". If this is a service contract, then the parties will be called the “customer” and “contractor”. In no case do not mix in one contract "contractor" and "performer", unless it is not three different parties agree.
By the way, if the contract is made incorrectly, and is considered null and void (there is such a thing in the legislation), then the transaction would qualify as a tax offense. Simply put, even if you did not plan to evade taxes, you can still be fined.
Subject of the contract
If it is easier: what, in fact, agree. The very essence of the transaction. It is clear that there will be a lot of conditions regarding payment, terms, sanctions and other things. In the subject of the contract you specify the very essence.
For example: "The contractor undertakes to perform the work specified in Appendix No. 1 (technical task) and transfer its result to the Customer, and the Customer undertakes to accept and pay for the result of the work."
This is the basic wording, it can be expanded and supplemented. For example, to put in the subject of the contract other important agreements, say, on the transfer of certain rights.
Terms and Definitions
This section is very specific and difficult. There are practically no legal, unambiguous formulations in our industry.
With regard to web development: the parties should agree on what they consider to be, for example, a site. Otherwise, it turns out that the contractor had in mind the design, templates and engine, and the customer wants the content written.
By the way, it would be great to organize a working group here and work out jointly some terms and definitions, and settle them with lawyers.
Cost and settlement procedure
This section is an essential condition of the contract. If there is no value or method of its definition in the contract or annexes to it, the contract may be declared not concluded! With all the consequences.
In the last post, I recommended putting the cost in the app. That is exactly what we have done. In the section "cost and settlement procedure" we refer to the application, which is an integral part of the contract.
Advice for companies working on the "simplified": after the cost, be sure to write "not subject to VAT." And in the contract, and in the acts, and in the accounts. If the money is sent with VAT, then there will be an extra hemorrhoids with their return and potential misunderstandings with tax.
The settlement procedure is an important topic. Usually they write here, they say, within so many banking days from the time of such and such to transfer to the current account ... settlements in rubles ... and so on.
In one of the previous notes, I wrote that the calculations should be carried out in stages . This is what allows us in the conditions when customers politely delay the last payments, not to fly into the minus. Here is the phasing, the scheme of calculations and it is necessary to prescribe in the contract (or in the application - the payment schedule, like ours).
I don’t want to write much today, but the continuation will probably follow ;-)
Other parts:
Source: https://habr.com/ru/post/57732/
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