Review of the claim for recovery of the amount under the contract for the development of the website and mobile application
Specialized interdistrict
Economic Court of Almaty
To Judge Aketaev D.A.
050008, Almaty, ul. Baizakova, 273 B
8 (727) 333-10-70
020203@sud.kz
from the Defendant: M.B.G. LLP
BEAN .
Almaty, 194 B. Street, 10th floor, office 1009
+7 705 ……………….
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
Feedback
on a claim for recovery
Your proceedings include civil case No. 7527-24-00-2/2745 on the claim of the Limited Liability Partnership of T.S. LLP (hereinafter referred to as the Plaintiff) against M.B.G. LLP (hereinafter referred to as the Defendant) for the recovery of the amount under the contract.
Where the plaintiff demands: M.B.G." in favor of LLP "T.C" the amount of debt in the amount of 2,200,000 tenge;
1. Recover from "M.B.G." LLP in favor of "T." LLP.C" the amount of the paid state duty in the amount of 66,000 tenge.
Thus, an Agreement was signed between the parties for the development of the website and mobile application No. 667 dated 02/09/2022 (hereinafter referred to as the Agreement) 151, 152, 378 of the Civil Code of the Republic of Kazakhstan, which stipulates that an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations is recognized as a contract, which is not disputed by the parties in this civil case.
According to the terms of the concluded Agreement, clause 1.1 "The Customer assigns, the Contractor undertakes the development of the website and mobile application in accordance with the terms of reference (Appendix No. 1 to this Agreement), which is an integral part of this Agreement."
In accordance with clause 2.1. of the Agreement, "The cost of work under this Agreement is: 2,200,000.
In accordance with clauses 2.2-2.7 of the Agreement
"The first installment is 30% of the total cost of work under this agreement: 660,000 tenge. It is paid by the Customer within 3 banking days from the date of signing the Contract.
The second installment is 40% of the total cost of work under this agreement: 880,000 tenge. It is submitted by the Customer within 3 banking days from the date of signing the interim act confirming the approval of the design.
The third installment is 30% of the total cost of the work under this agreement: 660,000. It is submitted by the Customer upon completion of the work and the signing of the acceptance certificate of the work performed by the parties. "
T.S. LLP paid in full the amount of 2,200,000 tenge, this fact is confirmed by payment orders and certificates of completed works No. 1060 dated 30.06.2022.
In accordance with clause 3.1. of the Agreement, "The Contractor undertakes to deliver the finished website and mobile application to the Customer within 45 working days from the moment the Customer approves the design of all pages of the mobile application and provides data for enabling online payment, and the Customer accepts them and pays."
In accordance with clause 2.6. of the Agreement, "The second installment must be paid by the Customer within 3 banking days from the date of signing the interim act confirming the approval of the design."
The interim act of delivery and acceptance of work on the design of all pages of the site dated March 10, 2022 was signed by the defendant and sent to the Plaintiff's side, against which the plaintiff had no claims, and the second part of the payment, according to the payment order, was paid by the Plaintiff.
683 of the Civil Code of the Republic of Kazakhstan stipulates that under a contract for the provision of paid services, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
According to Appendix 1 to the Agreement, M.B.G. LLP was obliged to fulfill:
1. Development, coordination and approval of the website and mobile application structure;
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, connection of Push notifications;
6. Development Website and MP Management Systems;
7. Content content of the website and MP;
8. Testing the website and MP;
9. Publishing a mobile application in the App Store and Google Play and uploading the site to hosting;
10. Enabling online payment;
In accordance with Articles 68, 72 of the CPC of the Republic of Kazakhstan, each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability.
According to the terms of the concluded Agreement, on 30.06.2022, the Defendant fully handed over the Completed Works Act No. 1060, the developed website and mobile application to the Plaintiff, who, in turn, accepted the work and signed and sealed the ADR.
The Act of completed works No. 1060 dated 06/30/2022 was signed by the parties and subsequently not disputed, as well as in this civil case is not questioned.
In accordance with Article 6.7 of the Agreement, the Warranty period for the website under the Agreement is 6 (six) months from the date of signing the act of completed works on 30.06.2022, that is, until the end of December 2022. During the warranty period, the Defendant undertakes to eliminate all identified deficiencies in the Services independently at his own expense.
As part of the website's Warranty Service, the Defendant fulfilled his obligations under the Contract 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.
I would like to draw the court's attention to the fact that the Website consists of complex codes that constantly require updating and maintenance by specialists who, with each update of the contributing software, need to be edited and updated.
The plaintiff's actions violate Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts.
Thus, Dear Court, the Plaintiff's arguments that the terms of the Contract are not being fulfilled are not valid and are not justified on the basis of the above arguments.
According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
Being a decent and responsible person, the Defendant has never refused to fulfill his Contractual obligations to the Plaintiff. However, the Plaintiff himself did not undertake any constructive dialogue to resolve the current situation. To date, the Defendant has fulfilled all the clauses of the contract, however, the Plaintiff himself has been abusing the clauses of the contract and the norms of legislation for his own unscrupulous selfish purposes.
We consider the Plaintiff's arguments to be unsubstantiated and unjustified from the point of view of relevance and admissibility as evidence in accordance with art. 68 of the CPC RK, each evidence is subject to assessment taking into account relevance, admissibility, reliability, and all the evidence collected together sufficiency to resolve a civil case – in this civil case, we observe the groundlessness of Claims and Defamation in relation to The defendant.
392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole. Also, Article 6 of the Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" provides: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Also, the selfish thoughts of the Plaintiff will not find their embodiment, since according to Article 147 of the Civil Code of the Republic of Kazakhstan, Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
The plaintiff in this civil case does not dispute in his claims the Contract for the development of the website and mobile application No. 667 dated February 09, 2022.
In addition, the signed Act of Completed Works No. 1006 dated 06/30/2022 confirms the proper performance of contractual obligations in accordance with the norms of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan. Obligations arise from the contract and the Obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.
Thus, we consider that the Plaintiff, without recognizing the above-mentioned documents as invalid or without terminating them in court, has no right to demand the recovery of the amount under the contract, since the Contract and the Act of Work performed comply with the requirements of the legislation and have legal force for the parties.
By virtue of art. 219 part 2 of the CPC, the Court does not have the right to change the subject or the basis of the claim on its own initiative and is obliged to resolve the case within the limits of the claims stated by the plaintiff.
In accordance with Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.
Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
The plaintiff applied to the Successful IT Solutions Company.
Thus, the Plaintiff received an Expert Opinion no. without a number dated 12/01/2023 compiled by the Successful IT Solutions Company represented by Director Zhakupov Chingiz Arlievich.
When studying the Conclusion, we found that:
1. According to the Notice of Commencement of activity as an Individual Entrepreneur (IP Successful IT Solutions), the company "Successful IT Solutions" was registered on May 17, 2021. Since the registration of the IP, Successful IT Solutions has been operating. According to the Register of Tax deductions (https://goszakup.gov.kz/ru/registry/tax?filter%5Bbin%5D=831020399093&search =) In 2021, I paid 21,142.98 tenge of tax to the budget, and in 2022, I paid 12,116.19 tenge to the budget. However, IP Successful IT Solutions in 2023 and in the first half of 2024 did not show income where it can be argued that it did not operate;
2. IP "Successful IT Solutions" carries out its business activities under OKED No. 62020 - Consulting services in the field of information technology. In the materials of the Expert Opinion no. without a number dated 12/01/2023, it can be seen that the Customer is TeplokomBatys LLP and the contractor is Successful IT Solutions, and the conclusion does not stipulate that the Contractor provides services free of charge. Thus, there is no Service Agreement concluded between the parties and a receipt from the KKM for payment, which is a gross violation of the Tax legislation of the Republic of Kazakhstan by virtue of art. 31 of the Tax Code of the Republic of Kazakhstan.
The above facts speak about the competence and work experience of an alleged expert or specialist in the field of programming.
If cases of violations of legality are identified, the court has the right to issue and send a private ruling to the authorized body in accordance with art. 270 of the CPC RK.
3. Chingiz Arlievich Zhakupov drew up an Expert opinion no. without a number dated 12/01/2023, while he is not a member of the Chamber of the Republican Chamber of Judicial Experts, which can be checked at the link https://rpse.kz /, does not have a license issued by an authorized state body to engage in expert activity;
4. Chingiz Arlievich Zhakupov attached to the materials of the Expert opinion Certificates of completion of the online course of study at the National Open University "Intuit" in different years on the course "Programming languages RNN, C++, etc." which is located in the Russian Federation, the city of Moscow https://intuit.ru/content/contacts . However, these certificates can serve as additional information that Chingiz Arlievich is a specialist when confirming his Diploma of higher education, as well as his work experience. Thus, we believe that Chingiz Arlievich is also not a specialist in the field of programming, since evidence of work and a Diploma of higher or secondary specialized education in the field of programming were not attached.
5. The expert opinion submitted to the court by the Plaintiff's party dated 12/01/2023, No number, no examination of the subject of the study, Zhakupov Ch.A., in accordance with Art. 420 of the Criminal Code of the Republic of Kazakhstan has not been warned about criminal liability for knowingly giving a false conclusion, it is not numbered, laced or stamped by an expert or specialist, or if the conclusion is drawn up in electronic format or signed with an electronic digital signature of the expert, it is not indicated what work experience the expert has in the specified specialty, what Methodological manuals, Literature and etc., research methods are not specified, and what equipment and tools were used in the study are not indicated. Which contradicts art. 38, 39 Contents and Expert Opinions of the Law of the Republic of Kazakhstan On Forensic expertise.
The following questions were put to the expert:
1) Does the result of the work performed by TOO "M.B.G." under contract No. 667 dated 02/09/2022 meet the requirements of the Terms of Reference (Appendix No. 1 to the contract)?
2) Has the two-way integration of the online store with 1C been completed in accordance with agreement No. 699 dated 06/18/2022?
3) Is it possible to use the results of the work performed by the defendant as a ready-made working website as of the current date?
4) What is the volume and cost of the work actually performed under contract No. 667 dated 02/09/2022 and their consumer value for the customer?
5) What is the cost of completing the work under contract No. 667 and No. 699 at the present time?
According to the conclusion, it was identified and established:
"Based on the information contained in those assignments, as well as other information obtained during
after conducting an expert examination of the project, the company "Successful IT Solutions" came to the following conclusion:
In its current form, the site https://tkb .kz is not ready for
used by the customer. The required functionality is not working:
1. Basic functionality such as ordering a product does not work
2. Integration with 1C has not been completed,
3. Online payment is not enabled
The mobile application is not available / has not been made. The total cost of the amount of work done by TOO "M.B.G." averages 570,000 (Five hundred and seventy thousand) tenge.
The cost of work under contracts No. 667 dated February 09, 2022 and No. 699 dated 06/18/2022 currently amounts to 2,950,000 (two million nine hundred and fifty thousand) tenge.
Taking into account that there is no administrative access to the site, therefore there is no way to make a backup copy. These access rights must be available to TOO "M.B.G." and must be transferred to the customer of "T.S." LLP. These circumstances also enable the contractor of TOO "M.B.G." to delete the code and make the site inaccessible, impossible to use. If the codes are deleted, the cost of re-creating the site and application and other work under contracts No. 667 dated February 09, 2022 and No. 699 dated 06/18/2022 will be significantly more expensive.
- Dear court, the act was signed on June 30, 2022. And the expert provided an opinion on 12/01/2023 and did not make an assessment on file changes since the signing of the act of completed work, which is fundamentally incorrect, since during this period any changes on the website and in the mobile application could have been made by the customer himself in 1.5 years.
We believe that the expert should have checked the file changes from the date of signing the certificates of completed work, and not the status of the site at the time of granting access to it and or the site.
In addition, the Defendant was not notified that the Plaintiff was conducting an expert examination at the Successful IT Solutions Company and or receiving a specialist's opinion, whereas if the Plaintiff's party had properly notified the Examination, the Defendant could have asked his questions, provided arguments and evidence for an objective study.
When examining an Expert opinion…
To Zhakupov Ch.A., the Plaintiff was asked the question of whether the two-way integration of the online store with 1C was connected in accordance with contract No. 699 dated 06/18/2022?
On this issue, how can the Defendant integrate if the Plaintiff has not provided an api for integration. These legal relations are regulated by another Agreement No. 699 for the bilateral integration of the online store with 1C dated June 18, 2022. in the civil case No. 7527-24-00-2/2627.
Also, the plaintiff's party, J. C.A., asked a research question - What is the volume and cost of the work actually performed under contract No. 667 dated 02/09/2022 and their consumer value for the customer? - What is the cost of completing the work under contract No. 667 and No. 699 at the present time?
On this issue, I would like to note that we are in a time of free market pricing, that is, in a Market economy — an economic system based on the principles of entrepreneurship, a variety of forms of ownership of means of production, free market pricing, contractual relations between business entities with minimal economic intervention by the state in economic activities and state regulation of the economy..
In this case, we consider that determining the cost of work is not within the competence of Ch.A. Zhakupov, and this issue should be handled by Specialists and Experts in pricing in financial or auditing activities.
In paragraph 6, the final conclusion is the examination of the site and conclusions Based on the information contained in the technical assignment, as well as on other information obtained during the examination of the project, the company "Successful IT Solutions" came to the following conclusion.
- The expert points to other information, then does not describe in the conclusion what other information he was based on in the conclusion, and it is not known.
Article 9. The comprehensiveness, completeness, objectivity and scientific validity of forensic expert research, the Law stipulates that when conducting a forensic examination, a forensic expert must take all measures for a comprehensive, complete and objective examination of objects based on special scientific knowledge. The expert's opinion should be based on provisions that make it possible to verify the validity and reliability of conclusions based on generally accepted scientific and practical data.
Also, Zhakupov Ch.A., in his Expert Opinion indicates that "At the moment, there is only a website template on a virtual server hosted by hoster.kz at: https://tkb.kz There is access to the hosting, but there is no virtual server, based on this, it is not possible to check the site code, configure the database, and this does not give a complete picture of the work done. Also, these circumstances allow the performer TOO " M.B.G." to delete the code and make the site inaccessible, impossible to use."
- The arguments of access from the site before signing the Act of completed work, the Plaintiff was provided with all materials and, of course, access to the site and the application, and after the Acts of Completed work were signed, which is not disputed by the Plaintiff.
In addition, Ch.A. Zhakupov, assuming himself as an expert or specialist in accordance with the Law of the Republic of Kazakhstan "On Forensic Expertise", has no right to rely on assumptions and/or unconfirmed possibilities without objectivity and scientific validity.
Also, in the case materials and in the Court Room, we did not find the signed, numbered and sealed conclusion "Successful IT Solutions Company" for studying and submitting a reasoned objection to the expert opinion, but only an electronic version without a seal was provided for review.
According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
In accordance with Clause 5 of Article 68 of the CPC RK, circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.
The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:
1) the original document has been lost and has not been handed over to the court;
2) the copies of this document submitted by each of the disputing parties are not identical to each other;
3) it is impossible to establish the content of the original document with the help of other evidence.
Accordingly, the Plaintiff's arguments on the examination conducted in the Successful IT Solutions Company are unacceptable and not relevant as evidence.
The expert's opinion cannot serve as a basis for the satisfaction of the claim, since it does not disclose the essence of the dispute.
The defendant has a mobile download application published in the Google Play app in 2022. Google Play is a serious organization that would never accept and add a NON-working application to its market without verification.
It should be noted that a considerable amount of time has passed since the transfer of work on June 30, 2022, and changes could have been made to the website and mobile application, respectively.
According to Article 5 of the Law of the Republic of Kazakhstan "On Forensic expert activity", an expert performing his expert activity is obliged to adhere to the principles of comprehensiveness, completeness, objectivity and scientific validity of forensic expert research.
Article 92 of the CPC stipulates that an expert's opinion is not binding on the court when adopting a judicial act.
In connection with the above, we believe that in this case there is a low-quality and biased examination. The main principles of independent experts are objectivity and reliability, which is not respected when making an opinion. These violations affect the interests of the defendant.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
It can also be noted that in addition to changing the files on the server, there is also the admin panel of the site, where you can also easily delete all the content, which the customer did. At the time of delivery, everything was working as expected. And there is a clause in the contract, if the customer himself makes changes to the code, the contractor is no longer responsible for the correct operation of the site.
Regarding the content of the website, clause 3.6. of the Agreement clearly stipulates: "The materials necessary to fill out and design the website and mobile application are provided by the customer. The period for the provision of services is extended accordingly to the time of delay – thus, we claim that the Plaintiff himself did not provide the specified materials to the Defendant. 12 07 15 p.m.
Between the Law and Law Law Firm and M.B.G. LLP, an agreement No. 1804/24 was concluded for the provision of legal assistance (hereinafter referred to as the Agreement), according to which the Law and Law Law Firm provides the plaintiff with representation services in all judicial instances in the above–mentioned civil case.
In accordance with paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it.
Based on the above and guided by 166 CPC RK,
I ask the Court:
· The Plaintiff's claims against the Defendant for the recovery of the amount under the Contract for the development of the website and mobile application are to be denied;
· In case of refusal to satisfy the Claim, collect from the Plaintiff in favor of the Defendant representative expenses in the amount of 200,000 tenge.
With respect,
Proxy Representative Lawyer:
________________/Sarzhanov G.T.
Attention!
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