How I defended the interests of the studio in court
Continuing a series of articles on legal topics, some of which are about contracts and rights in the studio’s business ( 1 , 2 , 3 , 4 , 5 , 6 ), part of my participation in court as a witness ( 1 , 2 ), I will tell you about had to participate in the trial as a party.
First, briefly, then in detail with the documents, then about the court itself (the customer and the person will not be named).
Briefly
A large client with 4 levels of management (board of directors, managing director, service manager, service employee) wanted a site. A tender was held, we won. The budget was small, but tolerable. According to the mind, it was necessary twice as much, but the tender + pressure on 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).
A contract was concluded with the usual terms on both sides, which an efficiently managed business could easily withstand (for example, 7 working days for review of mock-ups, 10 working days for consideration of TK, etc.).
')
In the course of the project, staff from the personnel department communicated with us (strange but true). I still saw 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 instructions such as "but we still found." On our side, too, there were delays for various reasons. The situation required several meetings, heaps of organizational expenses, the connection of additional forces and the implementation of actions. As a result, we made a layout that met all the requirements that we knew about. Just at this time, the period of vacations began and the feedback from the customer came to naught. The other one, the third on vacation, did not make a decision, the board of directors did not meet, and so on.
Mutho
I endured two months, then told the customer in a telephone conversation about our position in this form: accept work, tell me what is wrong, but if you continue to waste time, I will demand acceptance of work and payment of idle time under the contract at the rate of 0.1 % in a day.
I was told: “Ah, so! Okay". And two days later we received a fax “Covering letter to the notice of termination of the contract” (without the notification itself).
Fussing began, as hemorrhoids as the project itself. By this time, 11 months have passed since the beginning of the work, and I was tired of the order. I must say that we acted quite competently in terms of paperwork and were ready to demand payment for the design in full.
The fuss lasted for two months, then I spat and scored, retaining the prepayment and distributing to all the employees their bonuses for the completed part of the project.
After 10 months, the Customer filed a lawsuit with the Arbitration Court requesting the return of the entire prepayment and a penalty of another 20% of the contract amount. I had to sue.
Texture
The text of the claim is shown in the pictures.
This is what the Claimant was going to show and prove in court. I disputed a part of the facts, a part was confused in the lawsuit, about some essential things were simply forgotten.
The court accepted the application and invited us, that is, the Respondent, to a preliminary hearing.
I had to write two documents. The first - a response to the claim. Written in the form of a response to the requirements. What I do not agree with and why. Nothing more, with all the documents attached.
The second is a counterclaim. I had a lot of complaints and additional facts that the judge should have known. I was not going to earn penalties and fines, but it is important to fight on foreign territory so that the money spent for the design will definitely stay with us.
This is with some explanations and simplifications of the text of the counterclaim, so the style is the most wooded and boring, which can be invented.
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 the information is insufficient, the Customer provides information on request within 5 working days.
On December 25, 2007, the Contractor sent to the Customer a draft technical specification with questions for the work, which is confirmed by a letter
// letter screenshot
According to p. 4.3.1. Of the Agreement, the Customer should have provided answers to questions no later than January 15, 2008.
However, the Customer has fulfilled his obligations improperly. Only on February 15, 2008, all the information was provided for drawing up the technical specifications.
Thus, the delay of the Customer is 23 business days.
Clause 5.7 provides that in case of non-compliance with the terms stipulated by the contract, the guilty party reimburses the other party for losses in the amount of 0.1% of the total value of the Contract for each working day of delay.
Penalty for delay is ******* rub. * 0.1% x 23 working days = **** rubles ** kop.
2. Paragraph 6 of the Claim contains a statement about the delay by the Contractor of the provision of 2 design layouts for 32 working days, which is not true:
- technical design (attached) was signed by the Parties on February 22
- Two different design layouts by the Respondent were provided on March 11, 2008, as evidenced by a letter (according to clause 3.1. Of the Contract, the Contractor provides the results of the work by e-mail)
// letter screenshot
Subsequently, the Customer’s representatives in telephone conversations and emails (attached) expressed their wishes to the Contractor’s project manager for developing an additional site design option.
The Contractor, meeting the wishes of the Customer, prepared another version of the site design layout on April 22, 2008, which is confirmed by a letter (according to clause 3.1. Of the Contract, the Contractor provides the results of the work by e-mail).
// letter screenshot
3. According to clause 3.2. Of the Contract within 5 days from receipt of the design sketches, the Customer chooses one of the sketches, and notifies the Contractor by sending First Comments in the form of a letter signed by the head and stamp sent by Russian Post or by sending a facsimile message.
However, the Customer has not fulfilled its obligations. A letter drawn up in accordance with the requirements of the Agreement has not been sent to the Contractor.
However, after 28 working days from the date of submission of 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 e-mail entitled “Comments on the site”
The Contractor, paying attention to the violation of the form of the response in accordance with clause 3.2. But driven by the objectives of the earliest and best performance of obligations, accepted this email as the First Comments provided by the Agreement.
Thus, the delay of the Customer is 28 working days.
Clause 5.7 provides that in case of non-compliance with the terms stipulated by the contract, the guilty party reimburses the other party for losses in the amount of 0.1% of the total value of the Contract for each working day of delay.
Penalty for delay is **** rub. * 0.1% x 28 working days = ***** rub. 52 kopecks
4. On 21.05.2008, the Contractor sent design layouts of the site of the ****** company in accordance with the requirements for Comments, which is confirmed by a letter (according to clause 3.1. Of the Contract, the Contractor provides the results of the work by e-mail)
// letter screenshot
5. According to clause 3.4. Of the Contract within 5 days from receipt of the design sketches, the Customer sends the Second Observations to the Contractor in the form of a letter signed by the head and stamp, 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 has not been sent to the Contractor.
May 27, 2008 The Contractor was instructed to draw or cut the photos that were sent by the Customer. The customer sent to the address of the Contractor more than 10 large-format photos for processing.
On May 28, 2008, the Customer was notified that the submitted photographs are not suitable for creating illustrations.
2.06.2008 The Contractor, acting within the framework of the agreement, sends the requirements for the materials that are needed to create the illustrations. Photos for site caps
At a meeting on June 5, representatives of the Customer and the Contractor (FULL NAME, FULL NAME, FULL NAME) worked out a decision that the Contractor is trying to create an illustration based on the sent photos or is considering the option of creating the illustration as a separate work.
In this case, 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 limits of the signed project.
It was also said (in particular, the full name) that there are no complaints about the design of the page, except for new wishes on the top of the page (caps)
A complete set of photographs for creating illustrations was sent by the Customer on June 10, 2008 (more than 30 letters with photographic materials).
From June 10, 2008, the beginning of works on the Customer’s Second Observations is counted (clause 4.1.4 of the Agreement)
On June 11, requirements to the illustration of the plant were systematized and sent to the Customer.
6. June 17, 2008. The Customer sent the Contractor a letter with a proposal to analyze the found site and develop the ideas expressed earlier in the schedule.
The Contractor asserts that this letter contains a SECOND set of instructions for actions in excess of the scope of work specified in the Contract, as recorded in the Technical Project.
The Contractor claims that the Customer was notified that the illustration is a new job that will require additional time costs. A significant number of materials sent to her are proof of this fact.
7. July 11, 2008. The Contractor sent a set of sketches to the Customer, taking into account ALL the Customer's wishes.
// letter screenshot
No response from the customer to this letter has been received. In the numerous attempts of the project manager to contact representatives of the Customer to receive a response, various employees of the Customer claimed that there was no answer, that the responsible persons were on leave, that “the board of directors did not discuss the issue”, etc.
8. Clause 3.6 of the contract states: “Within 5 working days after providing the Site with the design, the Customer provides written confirmation of acceptance of this design or gives a reasoned refusal to accept work. In case of not providing a reasoned refusal within the specified time, the work is considered accepted. "
The work was sent on July 11, July 18, the 5-day work acceptance deadline expired, on August 1, the deadline for submitting claims on the accepted work (clause 4.4.2 of the Contract) expired.
9. In the absence of a response to the transferred work, the Contractor considered it accepted. After 30 days, during which the Contractor made repeated attempts to get a response from the Customer’s representatives, the Contractor sent an official letter asking to accept the work or send a reasoned refusal. According to the letter of the Russian Post (Certificate from 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 get a response from the customer.
10. On September 23, 2008, the Contractor’s Commercial Director Ovchinnikov personally delivered the results of work on the laser disc, Acts of Completion and an official letter addressed to the Head of the Customer, which was received by the Customer’s office (attached). This letter is the third attempt to get a response from the customer.
11. The documents mentioned in paragraphs 8-10 of this document were left unanswered by the representatives of the Customer.
12. The customer submitted a “Notice of Termination of Agreement” document in the Claim, dated September 19, 2008.
September 24, 2008 The Contractor received a facsimile copy and the original of the Cover Letter to the “Notice of Termination of the Contract”. The notification itself was delivered neither by fax, nor by the original.
- Clause 4.4.4 of the Agreement is not applicable to termination of the agreement due to the absence of duly executed requirements that would not be satisfied.
- Upon termination of the contract according to the Civil Code of the Russian Federation, the Customer is obliged to pay for the actually performed part of the work. The Contractor will, upon request, provide an estimate of the cost of creating the site design and additional work.
- Notice of intent to terminate the Contract, was delivered by mail of Russia to the Contractor’s address no earlier than October 1, 2008.
- According to clause 9.4. contract notice of intent to terminate the contract is sent at least 15 days before the date of termination.
- Based on the date of the alleged termination of the contract on October 15, 2008, the Customer’s delay in accepting the work is 57 working days.
- Paragraph 5.7 provides that in case of non-compliance with the terms stipulated by the contract, the guilty party compensates the other party for losses in the amount of 0.1% of the total value of the Contract for each working day of delay.
- The penalty for late 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 completely completed and must be paid. Payment is also subject to a penalty according to claim 1, paragraph 3, clause 12 of this document.
Development of individual design ****** rub.
Penalty for delay in accordance with claim 1. is ******* rub. * 0.1% x 23 working days = **** rubles 06 kopecks
Penalty in delay according to claim 3. is ******* rub. * 0.1% x 28 working days = **** rub. 52 kopecks
The penalty for late acceptance of design work is ***** rub. * 0.1% x 57 working days = ***** rub. 88 kopecks
The total total amount of cash actually spent by the Contractor under the Contract amounts to **** rubles 46 kopecks.
14. By the beginning of October 2008, it became apparent to the Contractor that despite the large amount of joint work done, the Customer has an intention to terminate the contract. Within 2 weeks, the representative of the Contractor discussed with the lawyer of the Customer the terms of the termination of the contract, tried to contact for discussion with the Director of the Customer.
A draft agreement was dated October 20, 2008 (Attached)
Agreement
about termination of the contract for the creation of the WEB-site â„– ******, providing for full payment of the design work.
The Contractor claims that the terms of the agreement have been agreed with the Director of the Customer in a telephone conversation held on October 10, 2008.
However, this agreement was not signed by the representatives of the Customer.
By this time S.Ovchinnikov made more than 20 trips to the territory of the Customer. For reasons of economy and being self-righteous, the Contractor did not insist on signing the document.
The total total amount of cash actually spent by the Contractor under the Contract is ******* ruble 46 kopecks.
Court
At the preliminary meeting, I met a sensible and reserved lawyer, the representative of the plaintiff. The judge called us in 35 minutes after the appointed time, so it was time to talk. As it turned out, he knows almost nothing about the case (he just got acquainted with the material of the claim, did not read the contract and documents). He was sent to submit a case, but in general it is the competence of another lawyer, a girl.
My position was this: a thing of the past, I don’t want to lose a lot of time, but if I have to, I will go to court for a long time and prove my case. I suggested that the lawyer analyze his and his evidence base and enter into a settlement agreement (we give money for the design, we refund the balance of the prepayment, no fines).
While the lawyer was reading, the judge invited us. The power of attorney was not registered according to the rules, so the lawyer of the plaintiff shared a sample.
The judge heard us (1.5 minutes for each) and said, well, everything is in order, we schedule a meeting. The plaintiff’s lawyer immediately said: “But here we have a settlement agreement being planned ...” The judge said: well, bring it in, issue it.
The court was not going to do anything, all by itself.
Since the lawyer-guy was a temporary replacement, I waited for a call from the main lawyer-girl. Nobody called me, in the end, after 4 days, I called myself.
I was told: 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 to pay fines and penalties. I was a little stunned and asked: did you read my review and counterclaim? "No, I did not read." I had to say that the documents should be read and thought; what is a settlement agreement does not suit us at all; that we are ready to discuss the conditions, but the central point: payment design. Otherwise, I will sue for a long time and with pleasure.
I must say that the familiar lawyers with whom I prepared the materials predicted high chances to sue the design if the judge reads and thinks. As it seemed to me, the judge was quite sensible, although far from IT.
The girl-lawyer said that she would read, think and talk with the management.
Total
It took another 3 days, the girl representative of the plaintiff called and said that they accept my terms of the settlement agreement.
A few days later the following agreement was signed in the judge’s office:
Again, we waited a long time for reception at the judge, and I asked how the discussion of the terms of the settlement agreement took place. It turned out that the management did not want to pay at all, but, as the girl-lawyer admitted, with such facts and documents there was simply no chance to sue everything.
The moral is simple: do the work, make out the papers, do not quarrel with customers and do not be afraid of ships.
First, briefly, then in detail with the documents, then about the court itself (the customer and the person will not be named).
Briefly
A large client with 4 levels of management (board of directors, managing director, service manager, service employee) wanted a site. A tender was held, we won. The budget was small, but tolerable. According to the mind, it was necessary twice as much, but the tender + pressure on 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).
A contract was concluded with the usual terms on both sides, which an efficiently managed business could easily withstand (for example, 7 working days for review of mock-ups, 10 working days for consideration of TK, etc.).
')
In the course of the project, staff from the personnel department communicated with us (strange but true). I still saw 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 instructions such as "but we still found." On our side, too, there were delays for various reasons. The situation required several meetings, heaps of organizational expenses, the connection of additional forces and the implementation of actions. As a result, we made a layout that met all the requirements that we knew about. Just at this time, the period of vacations began and the feedback from the customer came to naught. The other one, the third on vacation, did not make a decision, the board of directors did not meet, and so on.
Mutho
I endured two months, then told the customer in a telephone conversation about our position in this form: accept work, tell me what is wrong, but if you continue to waste time, I will demand acceptance of work and payment of idle time under the contract at the rate of 0.1 % in a day.
I was told: “Ah, so! Okay". And two days later we received a fax “Covering letter to the notice of termination of the contract” (without the notification itself).
Fussing began, as hemorrhoids as the project itself. By this time, 11 months have passed since the beginning of the work, and I was tired of the order. I must say that we acted quite competently in terms of paperwork and were ready to demand payment for the design in full.
The fuss lasted for two months, then I spat and scored, retaining the prepayment and distributing to all the employees their bonuses for the completed part of the project.
After 10 months, the Customer filed a lawsuit with the Arbitration Court requesting the return of the entire prepayment and a penalty of another 20% of the contract amount. I had to sue.
Texture
The text of the claim is shown in the pictures.
This is what the Claimant was going to show and prove in court. I disputed a part of the facts, a part was confused in the lawsuit, about some essential things were simply forgotten.
The court accepted the application and invited us, that is, the Respondent, to a preliminary hearing.
I had to write two documents. The first - a response to the claim. Written in the form of a response to the requirements. What I do not agree with and why. Nothing more, with all the documents attached.
The second is a counterclaim. I had a lot of complaints and additional facts that the judge should have known. I was not going to earn penalties and fines, but it is important to fight on foreign territory so that the money spent for the design will definitely stay with us.
This is with some explanations and simplifications of the text of the counterclaim, so the style is the most wooded and boring, which can be invented.
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 the information is insufficient, the Customer provides information on request within 5 working days.
On December 25, 2007, the Contractor sent to the Customer a draft technical specification with questions for the work, which is confirmed by a letter
// letter screenshot
According to p. 4.3.1. Of the Agreement, the Customer should have provided answers to questions no later than January 15, 2008.
However, the Customer has fulfilled his obligations improperly. Only on February 15, 2008, all the information was provided for drawing up the technical specifications.
Thus, the delay of the Customer is 23 business days.
Clause 5.7 provides that in case of non-compliance with the terms stipulated by the contract, the guilty party reimburses the other party for losses in the amount of 0.1% of the total value of the Contract for each working day of delay.
Penalty for delay is ******* rub. * 0.1% x 23 working days = **** rubles ** kop.
2. Paragraph 6 of the Claim contains a statement about the delay by the Contractor of the provision of 2 design layouts for 32 working days, which is not true:
- technical design (attached) was signed by the Parties on February 22
- Two different design layouts by the Respondent were provided on March 11, 2008, as evidenced by a letter (according to clause 3.1. Of the Contract, the Contractor provides the results of the work by e-mail)
// letter screenshot
Subsequently, the Customer’s representatives in telephone conversations and emails (attached) expressed their wishes to the Contractor’s project manager for developing an additional site design option.
The Contractor, meeting the wishes of the Customer, prepared another version of the site design layout on April 22, 2008, which is confirmed by a letter (according to clause 3.1. Of the Contract, the Contractor provides the results of the work by e-mail).
// letter screenshot
3. According to clause 3.2. Of the Contract within 5 days from receipt of the design sketches, the Customer chooses one of the sketches, and notifies the Contractor by sending First Comments in the form of a letter signed by the head and stamp sent by Russian Post or by sending a facsimile message.
However, the Customer has not fulfilled its obligations. A letter drawn up in accordance with the requirements of the Agreement has not been sent to the Contractor.
However, after 28 working days from the date of submission of 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 e-mail entitled “Comments on the site”
The Contractor, paying attention to the violation of the form of the response in accordance with clause 3.2. But driven by the objectives of the earliest and best performance of obligations, accepted this email as the First Comments provided by the Agreement.
Thus, the delay of the Customer is 28 working days.
Clause 5.7 provides that in case of non-compliance with the terms stipulated by the contract, the guilty party reimburses the other party for losses in the amount of 0.1% of the total value of the Contract for each working day of delay.
Penalty for delay is **** rub. * 0.1% x 28 working days = ***** rub. 52 kopecks
4. On 21.05.2008, the Contractor sent design layouts of the site of the ****** company in accordance with the requirements for Comments, which is confirmed by a letter (according to clause 3.1. Of the Contract, the Contractor provides the results of the work by e-mail)
// letter screenshot
5. According to clause 3.4. Of the Contract within 5 days from receipt of the design sketches, the Customer sends the Second Observations to the Contractor in the form of a letter signed by the head and stamp, 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 has not been sent to the Contractor.
May 27, 2008 The Contractor was instructed to draw or cut the photos that were sent by the Customer. The customer sent to the address of the Contractor more than 10 large-format photos for processing.
On May 28, 2008, the Customer was notified that the submitted photographs are not suitable for creating illustrations.
2.06.2008 The Contractor, acting within the framework of the agreement, sends the requirements for the materials that are needed to create the illustrations. Photos for site caps
At a meeting on June 5, representatives of the Customer and the Contractor (FULL NAME, FULL NAME, FULL NAME) worked out a decision that the Contractor is trying to create an illustration based on the sent photos or is considering the option of creating the illustration as a separate work.
In this case, 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 limits of the signed project.
It was also said (in particular, the full name) that there are no complaints about the design of the page, except for new wishes on the top of the page (caps)
A complete set of photographs for creating illustrations was sent by the Customer on June 10, 2008 (more than 30 letters with photographic materials).
From June 10, 2008, the beginning of works on the Customer’s Second Observations is counted (clause 4.1.4 of the Agreement)
On June 11, requirements to the illustration of the plant were systematized and sent to the Customer.
6. June 17, 2008. The Customer sent the Contractor a letter with a proposal to analyze the found site and develop the ideas expressed earlier in the schedule.
The Contractor asserts that this letter contains a SECOND set of instructions for actions in excess of the scope of work specified in the Contract, as recorded in the Technical Project.
The Contractor claims that the Customer was notified that the illustration is a new job that will require additional time costs. A significant number of materials sent to her are proof of this fact.
7. July 11, 2008. The Contractor sent a set of sketches to the Customer, taking into account ALL the Customer's wishes.
// letter screenshot
No response from the customer to this letter has been received. In the numerous attempts of the project manager to contact representatives of the Customer to receive a response, various employees of the Customer claimed that there was no answer, that the responsible persons were on leave, that “the board of directors did not discuss the issue”, etc.
8. Clause 3.6 of the contract states: “Within 5 working days after providing the Site with the design, the Customer provides written confirmation of acceptance of this design or gives a reasoned refusal to accept work. In case of not providing a reasoned refusal within the specified time, the work is considered accepted. "
The work was sent on July 11, July 18, the 5-day work acceptance deadline expired, on August 1, the deadline for submitting claims on the accepted work (clause 4.4.2 of the Contract) expired.
9. In the absence of a response to the transferred work, the Contractor considered it accepted. After 30 days, during which the Contractor made repeated attempts to get a response from the Customer’s representatives, the Contractor sent an official letter asking to accept the work or send a reasoned refusal. According to the letter of the Russian Post (Certificate from 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 get a response from the customer.
10. On September 23, 2008, the Contractor’s Commercial Director Ovchinnikov personally delivered the results of work on the laser disc, Acts of Completion and an official letter addressed to the Head of the Customer, which was received by the Customer’s office (attached). This letter is the third attempt to get a response from the customer.
11. The documents mentioned in paragraphs 8-10 of this document were left unanswered by the representatives of the Customer.
12. The customer submitted a “Notice of Termination of Agreement” document in the Claim, dated September 19, 2008.
September 24, 2008 The Contractor received a facsimile copy and the original of the Cover Letter to the “Notice of Termination of the Contract”. The notification itself was delivered neither by fax, nor by the original.
- Clause 4.4.4 of the Agreement is not applicable to termination of the agreement due to the absence of duly executed requirements that would not be satisfied.
- Upon termination of the contract according to the Civil Code of the Russian Federation, the Customer is obliged to pay for the actually performed part of the work. The Contractor will, upon request, provide an estimate of the cost of creating the site design and additional work.
- Notice of intent to terminate the Contract, was delivered by mail of Russia to the Contractor’s address no earlier than October 1, 2008.
- According to clause 9.4. contract notice of intent to terminate the contract is sent at least 15 days before the date of termination.
- Based on the date of the alleged termination of the contract on October 15, 2008, the Customer’s delay in accepting the work is 57 working days.
- Paragraph 5.7 provides that in case of non-compliance with the terms stipulated by the contract, the guilty party compensates the other party for losses in the amount of 0.1% of the total value of the Contract for each working day of delay.
- The penalty for late 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 completely completed and must be paid. Payment is also subject to a penalty according to claim 1, paragraph 3, clause 12 of this document.
Development of individual design ****** rub.
Penalty for delay in accordance with claim 1. is ******* rub. * 0.1% x 23 working days = **** rubles 06 kopecks
Penalty in delay according to claim 3. is ******* rub. * 0.1% x 28 working days = **** rub. 52 kopecks
The penalty for late acceptance of design work is ***** rub. * 0.1% x 57 working days = ***** rub. 88 kopecks
The total total amount of cash actually spent by the Contractor under the Contract amounts to **** rubles 46 kopecks.
14. By the beginning of October 2008, it became apparent to the Contractor that despite the large amount of joint work done, the Customer has an intention to terminate the contract. Within 2 weeks, the representative of the Contractor discussed with the lawyer of the Customer the terms of the termination of the contract, tried to contact for discussion with the Director of the Customer.
A draft agreement was dated October 20, 2008 (Attached)
Agreement
about termination of the contract for the creation of the WEB-site â„– ******, providing for full payment of the design work.
The Contractor claims that the terms of the agreement have been agreed with the Director of the Customer in a telephone conversation held on October 10, 2008.
However, this agreement was not signed by the representatives of the Customer.
By this time S.Ovchinnikov made more than 20 trips to the territory of the Customer. For reasons of economy and being self-righteous, the Contractor did not insist on signing the document.
The total total amount of cash actually spent by the Contractor under the Contract is ******* ruble 46 kopecks.
Court
At the preliminary meeting, I met a sensible and reserved lawyer, the representative of the plaintiff. The judge called us in 35 minutes after the appointed time, so it was time to talk. As it turned out, he knows almost nothing about the case (he just got acquainted with the material of the claim, did not read the contract and documents). He was sent to submit a case, but in general it is the competence of another lawyer, a girl.
My position was this: a thing of the past, I don’t want to lose a lot of time, but if I have to, I will go to court for a long time and prove my case. I suggested that the lawyer analyze his and his evidence base and enter into a settlement agreement (we give money for the design, we refund the balance of the prepayment, no fines).
While the lawyer was reading, the judge invited us. The power of attorney was not registered according to the rules, so the lawyer of the plaintiff shared a sample.
The judge heard us (1.5 minutes for each) and said, well, everything is in order, we schedule a meeting. The plaintiff’s lawyer immediately said: “But here we have a settlement agreement being planned ...” The judge said: well, bring it in, issue it.
The court was not going to do anything, all by itself.
Since the lawyer-guy was a temporary replacement, I waited for a call from the main lawyer-girl. Nobody called me, in the end, after 4 days, I called myself.
I was told: 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 to pay fines and penalties. I was a little stunned and asked: did you read my review and counterclaim? "No, I did not read." I had to say that the documents should be read and thought; what is a settlement agreement does not suit us at all; that we are ready to discuss the conditions, but the central point: payment design. Otherwise, I will sue for a long time and with pleasure.
I must say that the familiar lawyers with whom I prepared the materials predicted high chances to sue the design if the judge reads and thinks. As it seemed to me, the judge was quite sensible, although far from IT.
The girl-lawyer said that she would read, think and talk with the management.
Total
It took another 3 days, the girl representative of the plaintiff called and said that they accept my terms of the settlement agreement.
A few days later the following agreement was signed in the judge’s office:
Again, we waited a long time for reception at the judge, and I asked how the discussion of the terms of the settlement agreement took place. It turned out that the management did not want to pay at all, but, as the girl-lawyer admitted, with such facts and documents there was simply no chance to sue everything.
The moral is simple: do the work, make out the papers, do not quarrel with customers and do not be afraid of ships.
Source: https://habr.com/ru/post/72475/
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