Appeal against the decision of the Specialized Interdistrict Economic Court on the contract for the development of a website and mobile application
Almaty City Court
Plaintiff: Limited Liability Company "OTR G."
BEAN ............
Address: 72 Ryskulov Ave., Almaty, Republic of Kazakhstan
Phone: +7 (701) ..
Representative by proxy:
F.A.N.
IIN .............
phone: +7 777.
The defendant: Limited Liability Company "M.B.G."
BIN …
Address: 194 B.. street, 6th floor, office 600, Almaty, Republic of Kazakhstan
Phone: +7 (705) .
The appeal
On the decision of the Specialized Interdistrict Economic Court of Almaty in the civil case No. 7527-24-00-2/848
On 04/26/2024, the Specialized Interdistrict Economic Court of Almaty issued a decision in the civil case No. 7527-24-00-2/848 on the claim of OTR LLP. (hereinafter referred to as the Plaintiff) to M.B.G. LLP (hereinafter referred to as the Defendant) (signed by Judge Aketaeva D.A. on 05/03/2024) on the recovery from the Defendant in favor of the Plaintiff of the amount under the contract in the amount of 5,750,000 (five million seven hundred and fifty thousand) tenge and the recovery from the Defendant in favor of the Plaintiff of a legal penalty in the amount of 2,043,514.55 (two million forty-three eight thousand five hundred and fourteen) tenge (fifty-five) tiyn.
The decision of the Specialized Interdistrict Economic Court of Almaty in the civil case No. 7527-24-00-2/848 denied the claim of the limited Liability Company "OTR G.".
We do not fully agree with this decision, we consider it unjustified and illegal, and therefore subject to cancellation, due to the following circumstances:
The court found that on May 24, 2021, the parties signed a Contract for the development of the website and mobile application No. 588.
On August 19, 2022, an Additional Agreement was signed to the Agreement No. 588 dated May 24, 2021.
According to the terms of the Agreement, the Defendant undertook the obligation to develop the website and mobile application in accordance with the terms of reference.
The cost of work under this Agreement amounted to 5,750,000 tenge.
1. The court's decision on page 4 stated that, in violation of the requirements of Article 72 of the CPC, the plaintiff did not provide evidence that the defendant had failed to fulfill its obligations to develop the website and mobile application.
This statement does not correspond to reality in detail, since the Plaintiff has provided a Contract for the development of the website and mobile application No. 588 (hereinafter referred to as the Contract), Appendix No. 1 to the Contract and an Additional Agreement to the Contract.
According to Appendix No. 1 dated 05/24/2021 to the Contract for the development of the website and mobile application No. 588, the development of the website and mobile application consists of the following list of works:
1) Development, coordination and approval of the website and mobile application structure (hereinafter referred to as the "MP");
2) Development, coordination and approval of the layout of the main page of the website and the MP;
3) Development, coordination and approval of layouts of internal pages of the website and MP;
4) Layout of the main page and internal pages of the website and MP;
5) Programming:
- peer-to-peer layouts of website pages and MP
- enabling Push notifications;
6) Development of a Website and MP Management System (CMS);
7) Content content of the website and MP (according to clause 3.8. of the Agreement);
8) Website and MP testing;
9) Publishing a mobile application in the App Store and Google Play and uploading the site to hosting;
10) Enabling online payment (Visa, Mastercard);
11) Delivery-acceptance of works.
This amount of work can be determined both visually and with the help of an expert opinion.
In accordance with clause 3.8. of the Agreement, "The Contractor undertakes to perform work on the content content of the website and mobile application. The amount of information entered should not exceed 30 (thirty) pages (1800 characters per page without spaces). The additional amount of content is calculated separately.".
It is clearly visible in the screenshots (appendix No. 9) that the specified number is in volume: 30 pages are missing, 1800 characters per page without spaces is missing.
The plaintiff filed a petition for the appointment of a forensic examination of computer technology tools, according to which the expert was asked the question "What was the content of the site at the time of filing the claim dated 08.01.2024?"
According to Expert Opinion No. 33-2024 dated 04/10/2024, neither the website nor the mobile application comply with the requirement of clause 3.8 of the Agreement, i.e. 30 pages are missing, 1800 characters per page without spaces are also missing. The expert also explained at the hearing that the content of the website and mobile application did not comply with the terms of the contract.
2. The Court established the following in the decision on page 5:: "The defendant Objected to the expert's conclusion, the defendant's representatives drew the court's attention to the fact that the defendant's Mobile download application was published in the application on Google Play on December 15, 2022. Accordingly, Google Play would never have accepted and added a non-working application to its market without verification.
This fact was confirmed by an expert at the hearing, and therefore, the conclusions of the conclusion that the work under the Contract for the development of the website and mobile application was not fully completed are refuted. At the same time, the expert could not explain to what extent the work has not been completed."
In accordance with paragraph 1 of Article 76 of the CPC RK, "Circumstances recognized by the court as generally known do not need to be proved.
Circumstances that are not included in the subject of evidence in a case due to their widespread popularity in a certain territory, including the court and the persons involved in the case, are generally recognized as well-known."
The court established this circumstance as a well-known fact in accordance with paragraph 1 of Article 79 of the CPC RK.
However, according to the official information published on the website GOOGLE.com https://support.google.com/googleplay/android-developer/answer/9874937 ?hl=ru#zippy = the procedure for publishing private applications is prescribed (Appendix No. 10). According to this information: "To upload a private application to the admin console and then publish it, an APK file and the application name are sufficient. When the app is first published, a Play Console account will be created for your organization. Private applications are approved automatically and are usually ready for distribution within 10 minutes. You can download no more than 15 private applications per day.".
3. The examination was carried out according to the terms of reference for the development of the Megaren mobile application and website on 36 pages.
On page 6 of the judgment, the court states the following: "the expert should have conducted an expert study within the framework of Appendix No. 1 (terms of reference), which is an integral part of the Contract, and not the 36-page terms of reference."
It should be noted that the terms of reference repeat Appendix No. 1 to the Agreement, however, it is more detailed with a description of the content of the website and mobile application.
According to the expert's conclusion, the work on the development and content of the website and mobile application has not been completed.
4. The Court accepts the Defendant's arguments that, as part of the Warranty Service of the website under the Contract, the Defendant fulfilled his obligations and all the Plaintiff's wishes were corrected. However, to date, the Plaintiff claims that they have new problems on the site that need to be fixed.
There are also arguments that the Website consists of complex codes that constantly require updating and maintenance by a specialist, which must be edited and updated with each update of the contributing software.
Circumstances that are not supported by evidence cannot be recognized as reliable, permissible and relevant to the case without documentary confirmation of the Defendant's arguments. These arguments have not been confirmed in accordance with Articles 64, 65, 67 of the CPC RK.
In accordance with art. 64 of the CPC RK, "Evidence is recognized by the court as relevant if it contains information about facts that confirm, refute or cast doubt on conclusions about the existence of circumstances relevant to the case."
According to art. 65 of the CPC RK "1. The evidence is recognized by the court as admissible if it is obtained in accordance with the procedure provided for by this Code.
2. Audio and video recordings, including those obtained by surveillance and/or recording devices, photographic and/or film recordings, and other materials on electronic, digital and other material media may be recognized as acceptable evidence.
3. The circumstances of the case, which by law must be supported by certain evidence, cannot be supported by any other evidence.".
According to art. 67 of the CPC RK, "Evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality."
5. Regarding the court's conclusion that the website and mobile application were not working at the time of the Defendant's work, there are no reports.
This fact is confirmed by the fact that the website and the mobile application have not been working since the completion of the work, and screenshots from the website (appendix No. 8) have been attached to confirm this.
The website and the mobile application are incomplete in content, which contradicts clause 7 of Appendix No. 1 to the Agreement, namely "The content content of the website and the mobile application (according to clause 3.8. of the Agreement)".
The Court takes into account the fact that at the time of the Defendant's work, the website and the mobile application were not working, but the Plaintiff's side confirms that the information provided on the website and in the mobile application is incomplete and insufficient for full functioning, i.e. there is no content content in accordance with clause 3.8. of the Contract.
Based on the above, and in accordance with Articles 401-433 of the Civil Procedure Code of the Republic of Kazakhstan, -
ask:
To cancel the decision of the Specialized Interdistrict Economic Court of Almaty in the civil case No. 7527-24-00-2/848 (signed by Judge D.A. Aketaeva on 05/03/2024) in full, to make a new decision to satisfy the claims of OTR G. LLP in full.
Application:
1. Decision of the Specialized Interdistrict Economic Court of Almaty in the civil case No. 7527-24-00-2/848
2. Website and Mobile Application Development Agreement No. 588 dated 05/24/2021;
3. Appendix No. 1 to the Agreement No. 588 dated 05/24/2021;
4. Payment order No. 805 dated 05/25/2021;
5. Payment order No. 885 dated 08/23/2021;
6. Payment order No. 885 dated 09/20/2022;
7. Payment order No. 1722 dated 12/22/2022;
8. Screenshots from the website;
9. Expert opinion No. 33-2024 dated 04/10/2024;
10. Information from GOOGLE.com by publishing applications;
11. Power of Attorney;
12. Extract from the ward.
Representative by proxy F.A.N.
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