A lawsuit to recover the amount under the contract for the development of a website and mobile application

 

 

Specialized interdistrict Economic

Almaty City Court

 

Plaintiff: Limited Liability Company "OTR G.P"

BEAN ...

Address: 72 Ryskulov Ave., Almaty, Republic of Kazakhstan

+7 (701) ....

 

Representative by proxy:

T.A.A.

Born on 04/03/1991, IIN …

address: Almaty, Zhandosova str., d..., 3rd floor, 312 office

Phone: +7 707 …

email address:

 

 

The defendant: Limited Liability Company "M.B.G."

BEAN....

Address: 194 B.. street, 6th floor, office, Almaty, Republic of Kazakhstan …

Phone: +7 (705) ..

 

The amount of the claim: 7,793,514 . 55 (seven million seven hundred and ninety-three

tenge five hundred and fourteen) tenge (fifty-five) tiyn

 

 

The claim

about collecting the amount under the contract

 

On 05/24/2021, MOVE BUSINESS GROUP LLP (hereinafter referred to as the Plaintiff) and OTR G LLP (hereinafter referred to as the Defendant) signed a Contract for the development of website and mobile application No. 588 (hereinafter referred to as the Contract).

On 08/19/2022, an Additional Agreement was concluded to Agreement No. 588 dated 05/24/2021 (hereinafter referred to as the Agreement).

According to clause 1.1 of the Agreement, "The Customer assigns, and 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: 5,750,000 (five million seven hundred and fifty thousand) tenge."

In accordance with clauses 2.2-2.7 of the Agreement, "The down payment is 30% of the total cost of work under this agreement: 1,800,000 (one million eight hundred thousand) 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: 2,225,000 (two million two hundred and twenty-five thousand) 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 work under this agreement: 1,725,000 (one million seven hundred twenty-five thousand) tenge. 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."

According to clause 1 of the Agreement, the amendments to clause 2.4 of the Agreement were demolished and set out in the following wording:

"2.4.1. The third installment is 15% of the total cost of works under this agreement 862,500 (eight hundred sixty two thousand five hundred) tenge.

2.4.2. The fourth installment is 15% of the total cost of works under this agreement 862,500 (eight hundred sixty two thousand five hundred) tenge. "

According to clause 2 of the Agreement, the amendments to clause 2.7 of the Agreement were demolished and set out in the following wording:

"2.7.1. The third installment is paid by the Customer, within 3 banking days from the date of signing the interim act confirming the approval of work on the second stage.

2.7.2. The fourth installment is paid by the Customer upon completion of the work and the signing of the acceptance certificate of the work performed by the parties, including the mobile application".".

The plaintiff made payments in the following order:

1. On 05/25/2021, according to payment order No. 805, an amount of 1,800,000 (one million eight hundred thousand) tenge was transferred to the Defendant's current account.

2. On 08/23/2021, according to payment order No. 885, an amount of 2,225,000 (two million two hundred and twenty-five thousand) tenge was transferred to the Defendant's current account.

3. On 09/20/2022, according to payment order No. 885, an amount of 862,500 (eight hundred sixty-two thousand five hundred) tenge was transferred to the Defendant's current account.

4. On 22.12.2022, according to payment order No. 1722, an amount of 862,500 (eight hundred sixty-two thousand five hundred) tenge was transferred to the Defendant's current account.

In accordance with clause 3.1 of the Agreement, "The Contractor undertakes to deliver the finished website and mobile application to the Customer within 120 (one hundred and twenty) business 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 acceptance certificate for the design of all pages of the site dated 08/13/2021 was signed by the parties, and the second part of the payment, according to payment order No. 885 dated 08/23/2021, was paid by the Plaintiff.

Accordingly, the date of delivery of the completed work after 120 (one hundred and twenty) business days was to be developed and delivered to the Customer the website and mobile application by 02/15/2022.

The deadline for the delivery of the website and mobile application is 663 (six hundred and sixty-three) calendar days.

On 1130/2023, a pre-trial claim was sent to the email address with a request to refund the amount paid under the agreement in the amount of 5,750,000 (five million seven hundred and fifty thousand) tenge, as well as to pay a legal penalty in the amount of 1,998,075.78 (one million nine hundred and ninety-eight thousand seventy-five) tenge (seventy-eight) tiyn.

On 11/30/2023, the pre-trial claim was sent to the WhatsApp group to the Defendant's representatives. In response, the Respondent's representative says that the website and the application have been working for a year. However, the Website and the application are not functioning in full mode, i.e. the actual work is not completed.

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 site 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.

According to 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."

Complaints about the fulfillment of technical specifications:

1) items 1-6 are fulfilled, with a claim to quality and timing;

2) paragraph 7 - the content was provided only by the Plaintiff's side;

3) point 8 - testing of the website and the MP was carried out repeatedly, constantly revealing technical problems, site layout errors, which caused new problems to appear.;

4) paragraph 10 - at the Defendant's insistence, the PayTech payment system was connected, which soon stopped working, which the Defendant did not notify in any way, then, as part of the Guarantee, Internet acquiring from Bank CenterCredit JSC had to be connected, which was not done.

On 12/14/2023, when logging on to the site, it was revealed that the site was completely unusable, and most of the information previously filled in by the Plaintiff was erased.

 

In accordance with Article 268 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the "Civil Code of the Republic of Kazakhstan"), "By virtue of an obligation, one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor), such as paying money and so on, and the creditor has the right to demand from the debtor the fulfillment of his responsibilities. The creditor is obliged to accept execution from the debtor."

By virtue of Article 272 of the Civil Code of the Republic of Kazakhstan, "An 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."

According to paragraph 1 of Article 349 of the Civil Code of the Republic of Kazakhstan, "Violation of an obligation means its non-fulfillment or improper fulfillment (untimely, in violation of other conditions determined by the content of the obligation) - improper fulfillment. In case of impossibility of proper execution, the debtor is obliged to immediately notify the creditor about this.".

In accordance with clause 2 of Article 365 of the Civil Code of the Republic of Kazakhstan, "If, as a result of the debtor's delay, the execution has lost interest for the creditor, he may refuse to accept the execution and claim damages."

According to art. 293 of the Civil Code of the Republic of Kazakhstan, a penalty (fine, fine) is a monetary amount determined by law or contract that the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of obligations, in particular in case of late fulfillment. Upon request for payment of a penalty, the creditor is not obliged to prove the damage caused to him.

According to paragraph 1 of Article 295, "The creditor has the right to demand payment of a penalty determined by law (legal penalty), regardless of whether the obligation to pay it is provided for by agreement of the parties."

298 of the Civil Code of the Republic of Kazakhstan, a penalty is collected for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation.

During the preparation and further participation in the process, the Plaintiff incurred expenses for the representative's services in the amount of 500,000 (five hundred thousand) tenge, which is confirmed by the Service Agreement No. TK11-08/2023 dated 12/07/2023, payment order No. 3500 dated 12/11/2023 and a power of attorney.

 

Based on the above,

I beg:

1.                      To collect from M.B.G. LLP in favor of OTR G. LLP the amount under the Agreement in the amount of 5,750,000 (five million seven hundred and fifty thousand) tenge.

2.                      To collect from M.B.G. LLP in favor of OTR G. LLP 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.

3.                      To collect from "M.B.G." LLP in favor of "OTR G." LLP the costs of paying for the services of a representative in the amount of 500,000 (five hundred thousand) tenge.

4.                      To collect from "M.B.G." LLP in favor of "OTR G." LLP the costs of paying the state fee in the amount of 233,805.43 (two hundred and thirty-three eight hundred and five) tenge (forty-three) tiyn.

 

 

Representative by proxy T.A.A.

 

 

 

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