Payment and prepayment
Business is a thing that is built on trust. But at the same time it will not be amiss to hedge in advance. And they like to drive with us a 100% advance, and then try to scratch it back, because in the process, they either changed their minds, or the contractor was blown away and clearly does not pull. And how to take it back if the money has already been spent? Do you want to sue?
There are three possible schemes:
- If equipment or licenses are purchased along with work, then this can be paid 100%. This is normal, because otherwise the contractor has to withdraw this money from circulation. But demand confirmation of the fact of procurement with the ability to suspend all further payments without this confirmation. Directly on the work itself - 10% and no more. And the rest is at the very end. If the contractor cannot work without an advance, then the question of its sustainability is in question. He also earns it on a permanent basis, sort of like, and does not dissolve himself until the next customer.
- If you can’t agree on the first point, then break down the advances into periods. For example, once a month. But the next advance is only if the work for the previous month will be closed. Should a contractor last a month?
- The third option. Compromise on persuasiveness. Beat all work into stages more or less completed in terms of degree of autonomy and tie all advances in stages to the closure of the previous one. This is a variation of the second option, but in this case, the contractor has much less opportunity to inflate the work for a month (such as how many hours we worked), because here the result of the stage is important, not the process of work.
Copyright
The most common contract in IT is intellectual work. That is, secondary values appear. In order to understand the consequences, I will quote the source:
“The exclusive right to a computer program, database or other work created during the execution of the contract ... that did not directly provide for the creation of such a work, belongs to the contractor (executor), unless otherwise provided by the contract ” (Clause 1, Article 1297 of the Civil Code of the Russian Federation )
Yes, you heard right. You paid the contract to the contractor, but you did not receive everything that was done. Of course, you can still use such a work. But there is one caveat. The term "use" is a slippery path. For example, you are making a complex product and as part of it these works have been transferred to a third-party client. Did you use this? In short, if you do not want problems, write the following phrase in the contract:
“From the moment of termination of this Agreement for any reason or from the moment of signing by the parties of the act of acceptance of the work performed on the corresponding stage of work, depending on which event occurs earlier, the Customer is transferred in full exclusive copyright to the results of the corresponding stage of work, available at the contractor. The customer is entitled to use such results of the corresponding stage of work in accordance with article 1229 of the Civil Code of the Russian Federation in any form and in any way that does not contradict the law (exclusive right), including by the methods specified in paragraphs. 2, 3 of Article 1270 of the Civil Code of the Russian Federation . ”
Work stages
Stages are a very cool thing. In addition to the fact that it allows the parties to understand in principle what should finally turn out in the end, the stages are a cool whip for the contractor. Because each such period has its own term, and the contractor can be dipped hard in violation of this. Responsibility is prescribed for the stage. Payments are tied to the stage. Stages force the contractor not to save and allocate the normal number of workers to your contract, because there is no time to catch up with the delay. But, by the way, these weapons can also be turned against the customer. Therefore, be careful with your desires and calculations. Especially if you are not sure of the constancy of financing.
There are several important things with steps:
- They should ultimately lead to some kind of results of work that can somehow, but transmit. You cannot pass on a stage of some hours of work or an unfinished footcloth of code. So think about the wording.
- Stages must contain deadlines. Each his own. They can intersect, because not necessarily one stage must follow from another. But the deadlines should be. Otherwise, what's the point in the stage?
- The end of the stage should be made out. The same act of acceptance.
Forfeit secure other things
Forfeit is, of course, good. But most often no one is afraid of her for some reason. Perceive either as a fantastic option. Or they hope to fight it off (often it is really possible to reduce it). But there is an option that immediately pulls the contractor. Write not only the penalty. Be creative. Throwing an idea, use your health!
“The parties agreed on the following procedure for changing the price of the contract: in case of delay by the contractor for the start or end of the work (including work stages), as well as in case of delay in the contractor's deadline for eliminating deficiencies, the contract price automatically decreases by 0.1% for each day of delay . The parties confirm that this change in the price of the contract is not the responsibility of the contractor, since with this agreement the parties redistribute the risks of incurring losses in case of delay in transferring the result of work to the customer . ”
How do you like it? This is not a fine. It’s just a price change order agreed by the parties. The contractor will know that each day of delay will not lead to a hypothetical lawsuit (it is unlikely that you will sue for forfeit), but will lead to very real consequences - less money will fall into the account. I warn you right away. This is a rather slippery topic in terms of contestability in court. But for this, the contractor must go to court, and still have a good team of lawyers. And at least in case of problems, this will give you a very good position in the negotiations.
Withdrawal from the contract
The withdrawal from the contract should be concretized and consist of a list of cases and consequences for you:
- Unmotivated exit at any time without compensation for any losses.
- Cases of withdrawal from the contract due to the fault of the contractor: delay of more than 10 days, delayed start of work, two or more times the refusal to accept work in the presence of deficiencies, involvement of a subcontractor without your consent, etc., etc.
Believe me, this will not only facilitate interaction and disputes with the contractor during the term of the contract, but also wildly reduce your risks if you need to terminate the contract with a minimum of losses on your part. Overdue or deficiencies can always be found. And now, a free exit!
Advances and actual fulfillment
In case you run up or deadlines are suspended. There should be tough financial conditions.
- Any advance payment that has not been confirmed by the performance of work (at the time of termination of the contract or the end of the stage) is subject to an unconditional return. All disputes on payment of work only after that.
- If the contract was terminated not through the fault of the contractor, then it will be necessary for him to reimburse what he actually did (unless otherwise agreed). But! Write as follows: “ payment shall be made for actually performed work performed by the contractor at the time of termination of the contract, having independent customer value for the customer .” What does it mean? Again, if the contractor only has an inoperative sheet of code, then this should not be paid by you. Even if he worked on it for a month. Therefore, do not bother you with your calculations of the time spent.
Warranty Terms, Terms and Liability
Prescribing a guarantee is almost more important than arranging battles in the financial sector. Because the work will be shipped to you now, and you can catch the jambs a few more months after that. Therefore:
- The contractor gives a guarantee for the work performed for a period (write yourself).
- All work should be eliminated in a period of no more than (write yourself). It is important. You can agree on any period later. But if it does not work out, then the contractor will already be obliged.
- For delayed elimination of deficiencies comes responsibility (penalty, for example).
- The deadline for making claims for obvious deficiencies is 10 business days after acceptance. This is no longer a guarantee, but let it be on the heap. By default, if the flaw could clearly be detected at the time of acceptance, and you signed the act, then everything, go to the forest. This is a clear drawback. So you, like, it suited. The point will save you if your receivers cheated.
- Break through the insurance deposit. For example, 5% of the cost of work is deducted upon payment. And they are transferred to the contractor only at the end of the warranty period. This will provide at least some motivation for the contractor to move with the elimination of deficiencies.
Subcontracting only with consent and not paid
You can read about what the consequences for you will be when subcontracting. Therefore, if it is important for you that the work is carried out by this particular contractor, then write down the ban on subcontracting. But this is not enough. Responsibility needed:
- You may not accept work if you find that it is subcontracted.
- You can accept them, but the price will be automatic 50% lower.
You can, of course, also prescribe fines, but the price is the best argument.
One-sided offsets and fines
If you do not want to argue with the contractor about fines, then register your right to a one-sided set-off. For example, “the general contractor has the right to withhold the specified penalty unilaterally out of court from the amounts payable to the subcontractor ”. You can hold anything: a fine, losses, the cost of equipment and so on. What is your fantasy ready for?
To the dissenting contractor explain so. Retention does not mean that he is deprived of any rights. He can still defend all this in court. And if it turns out that you forfeited the penalty in vain, then he will return everything back. At the same time, it will also recover losses.
But since most often the amounts of these forfeits are small, then you are not interested in suing. And the contractors understand this. In order for there to be a motive to work and the penalty still hangs like a sword of Damocles, you need to understand that the contractor is really aware of the consequences of its behavior - there will immediately be less money.
Minor work at the expense of the contract
It often happens that during the course of the work, unaccounted moments emerge. Or parallel jambs that can be quickly and easily fixed. If this is NOT a flaw in the work of the contractor, then all this is considered additional work. Contractors take advantage of this. Although you understand perfectly well that it doesn’t cost him anything to fix this small jamb. And the cost of his work for him, too, will not be reflected. But fuss begins with dopnikami, coordination of prices for these works and so on.
To avoid this, include the following phrase in the customer’s rights:
“ Change the scope of work entrusted to the contractor, incl. instruct the contractor to perform additional work at the expense of the price of work under the contract, if this change does not require a significant increase in the financial costs of the contractor. For the purposes of this paragraph, under the criteria of materiality, the parties determined such an increase in financial costs that would not increase the price of work under the contract by more than 10% .
This is still quite blurry, but it will be difficult for the contractor to argue with you if these works are really insignificant. He will already have to prove the opposite somehow, and if technicians take part in your acceptance, it will be problematic.
PS Of course, not all contracts need to shove the above. It is necessary to assess the possible amount of losses and risks. But you can always turn it on, and then exclude it in the course of negotiations, having demanded another concession for yourself. Consider yourself in the eastern bazaar, where everyone gets satisfaction during the course of trading!