Essential terms of the service agreement
By contract for paid services the contractor undertakes to provide services (perform certain actions or carry out certain activities) on the instructions of the customer, and the customer undertakes to pay for these services(Clause 1 of Article 779 of the Civil Code of the Russian Federation).
The contract for the provision of paid services is concluded on:
auditing services;
information Services;
medical services;
tourism services;
This list is not exhaustive.
The relations of the parties under a contract for the provision of paid services are regulated by Chapter 39 of the Civil Code of the Russian Federation. According to Article 783 of the Civil Code, general provisions on contracts (Articles 702 - 729 of the Civil Code) and provisions on household contracts (Articles 730 - 739 of the Civil Code) are applied to an agreement for the provision of paid services, unless this contradicts the special rules on this agreement (Articles 779 - 782 of the Civil Code) , as well as the peculiarities of the subject of the contract for the provision of paid services.
When providing certain types of services, the parties to the contract, in addition to the Civil Code, are also required to be guided by the norms of special legislation. For example, the provision of communication services is regulated by the Law “On Communications” and the Rules for the provision of communication services, which define both the essential conditions for the provision of mobile communication services and other conditions for the provision of this type of service that must be included in the contract.
In some cases, an agreement for the provision of services for a fee is public, therefore the Law of the Russian Federation "" applies to the relations of the parties under such an agreement.
Below is a standard form of a service agreement. Of course, you need to understand that each contract is unique and its terms depend on the specifics of a number of conditions and the will of the parties. Nevertheless, there are conditions (they are called) that any contract for the provision of services must contain and without which the contract is considered not concluded. The essential terms of the contract for the provision of services include the conditions that determine the specific type of service provided (clause 1 of Article 779 of the Civil Code of the Russian Federation), i.e.:
the result obtained from the service cannot be seen or touched;
the service itself is consumed at the time it is provided to the customer;
the service is considered provided after the signing of the acceptance certificate for the services provided;
for accounting and tax accounting purposes, it is necessary to prove the fact of provision of services,
The general provisions on (Articles 702 - 729 of the Civil Code) and provisions on household contracts (Articles 730 - 739 of the Civil Code) apply to the contract, unless this contradicts the norms of Chapter. 39 of the Civil Code, as well as the specifics of the subject of the contract for the provision of paid services (Article 783 of the Civil Code).
Because the:
Therefore, the preparation of primary documents is important for both the customer and the contractor.
To reflect services, the main documents are:
Service Agreement;
Invoice (invoice) of the service provider;
Standard form of a service agreement
| G. ____________________ | "__" ________ 201__ |
Romashka LLC, hereinafter referred to as the “Customer”, represented by General Director ____________________, acting on the basis of the Charter, on the one hand, and Odnodnevka LLC, hereinafter referred to as the “Contractor”, represented by Director ____________________, acting on the basis of the Charter, on the other hand, have entered into this Agreement as follows:
What mistakes are made most often in the preamble of a contract?
1. The Subject of the Agreement
1.1. The Contractor undertakes to provide the Customer with the services (hereinafter referred to as the Services) named in the List of services provided, which is an integral part of the Agreement (Appendix No. 1), and the Customer undertakes to pay for these Services.
1.2. The Contractor undertakes to provide the Services personally.
1.3. The terms for the provision of Services are defined in the List of services provided (Appendix No. 1).
What mistakes are made most often in the subject of the contract?
2. Procedure for delivery and acceptance of services
2.1. Upon provision of the Services, the Contractor presents to the Customer for signing (Appendix No. 2) in two copies.
2.2. Within 7 days after receiving the Certificate of Acceptance and Delivery of Services Rendered, the Customer is obliged to sign it and send one copy to the Contractor, or, if there are deficiencies, provide the Contractor with a reasoned refusal to sign it.
2.3. If there are deficiencies, the Contractor undertakes to eliminate them within 14 days from the date of receipt of the relevant claims from the Customer.
2.4. Services are considered provided from the moment the Parties sign the Certificate of Acceptance and Delivery of Services Rendered.
3. Contract price and payment procedure
3.1. The total cost of the Services is ____ (___________________) rubles, including VAT _____ (__________) rubles.
3.2. The Customer pays for the Services in the following order (select the required one/it is possible to establish a different payment procedure): part of the cost of the Services in the amount of _____ (__________) rubles, including VAT _____ (__________) rubles, the Customer pays before the Contractor begins to provide services (advance payment ), the remaining cost of the Services in the amount of _____ (__________) rubles, including VAT _____ (__________) rubles, the Customer pays within _____ days after the Parties sign the Acceptance Certificate for the services provided.
6.4. Any changes and additions to this agreement are valid only if they are made in writing and signed by authorized representatives of the parties. The appendices to this agreement constitute its integral part.
6.5. This agreement is drawn up in two copies in Russian. Both copies are identical and have the same strength. Each party has one copy of this agreement.
6.6. Attached to the agreement:
6.6.1. List of services provided
6.6.2. Service acceptance certificate
7. LEGAL ADDRESSES OF THE PARTIES
current account No. __________________________ in Bank _______________Contractor: _______________________________ (location address)
current account No. __________________________ in Bank _______________
SIGNATURES OF THE PARTIES:
How to correctly draw up an acceptance certificate for services provided
Appendix No. 2
to the Compensation Agreement
provision of services No. ____ from "___" ___________ _____
Certificate of acceptance of services provided
| G. ____________________ | "__" ________ 201__ |
Romashka LLC, hereinafter referred to as the “Customer”, represented by General Director ____________________, acting on the basis of the Charter, on the one hand, and Odnodnevka LLC, hereinafter referred to as the “Contractor”, represented by Director ____________________, acting on the basis of the Charter, on the other hand, we have drawn up this Certificate of Acceptance and Delivery of Services Rendered (hereinafter referred to as the Certificate) under the Paid Services Agreement No. ___ dated "___" ___________ _____ (hereinafter referred to as the Agreement) on the following.
-
________________________________________
________________________________________
In pursuance of clause 1.1 of the Agreement, the Contractor, during the period from "__" _______ ___ to "__" _______ ___, fulfilled its obligations to provide services, namely, provided the Customer with the following services:
The above services were completed in full and on time. The customer has no complaints regarding the volume, quality and timing of the provision of services.
According to the Agreement, the total cost of services provided is _____ (__________) rubles, including VAT __% in the amount of _______ (__________) rubles.
The total amount of the transferred advance amounted to _____ (__________) rubles, including VAT __% in the amount of _______ (__________) rubles.
Under this Act, _____ (__________) rubles are due, including VAT ___% in the amount of _____ (__________) rubles.
This Act is drawn up in two copies, one each for the Contractor and the Customer.
| By customer: Last name I.O. |
From the Artist: |
The concept of a contract as a legal document is regulated by Articles 779-783 of Chapter 39 of the Civil Code of the Russian Federation. Drawing up contracts for the provision of services is necessary in cases where one party undertakes to perform certain work or actions, provide services, and the second party undertakes to pay for them. Such agreements are called fee-for-service agreements and are usually drawn up in writing. The subject of the contract can be a variety of types of services: audit, accounting, legal support, educational and medical services, services for various types of work, for the supply of goods, etc. A separate issue is the drafting of contracts that require notarization. These include:
- transactions between individuals and legal entities or only legal entities;
- transactions for certain amounts (exceeding the minimum wage by at least ten times);
- transactions provided for by law (stipulated in Article 161 of the Civil Code of the Russian Federation).
General information about service contracts includes the following information:
1) Subject of the agreement: type and form of services provided and the obligations of the consumer of these services;
2) Type of agreement: one-time, framework, prolonged, etc.;
3) Type of contract: drawing up contracts for the provision of services, purchase and sale, performance of work (contract), mediation, labor relations, etc.;
4) Parties to the agreement: both individuals and legal entities;
5) Form of the agreement: not specified by law, but written execution in 2 copies is required - failure to comply with this requirement in case of disputes does not confirm the existence of a transaction;
6) Terms of the agreement: the law defines three categories of conditions when drawing up such agreements:
- ordinary ones, which are specified in laws and must be included in the text of the agreement;
- essential conditions specified by laws for this type of agreement and conditions that one of the parties insists on introducing;
- random conditions - to supplement or change the usual conditions (these include: designation of risk insurance, non-standard number of copies, procedure for making changes to the content, etc.);
- introductory part;
- designation of the subject of the contract (list of actions or activities of the performer);
- obligations and rights of the parties;
- duration of the agreement (by agreement of the parties);
- cost of services (goods, work), payment mechanism and terms;
- responsibility of the parties to the agreement;
- conclusion.
An agreement for the provision of paid services is considered officially concluded if an agreement is reached on the usual and essential conditions, which must be confirmed by the signatures of the parties (in accordance with Article 432 of the Civil Code of the Russian Federation). It should be noted that most standard contracts do not require special legal knowledge. But important agreements, transactions for large sums, transactions during the implementation of which force majeure circumstances or complications may arise, must undergo legal examination. We strongly recommend that you entrust the drafting of agreements for the provision of services to experienced lawyers, which will guarantee the successful resolution of disputes if they arise.
Contract for drawing up technical specifications
Drawing up technical specifications is one of the key stages of many types of work and services, for example, architectural, design, engineering design, website development, creation of creative objects, production of non-standard products, etc. But, drawing up a technically and legally competent technical specification, which is the basis for all subsequent work - a difficult and very responsible matter. Therefore it must be paid accordingly. For this, we need a contract for drawing up technical specifications - legal confirmation of the agreement between the customer and the contractor that the latter will develop the technical specifications, and the former will pay for these works in accordance with the contractual terms.
As a rule, the preparation of contracts for the provision of services for the development of technical specifications includes the following points:
- purpose, principles and objectives of future work (design, creative, other);
- conditions and procedure for their implementation;
- deadlines;
- Expected results.
On the part of the customer, this agreement requires the provision of initial technical data and a clear indication of what he needs from the contractor - this must be included in the text of the agreement. It should be borne in mind that oral agreements have no legal force and will not be taken into account in the event of disputes. The standard cost of developing technical specifications is 10-15% of the total cost of the project or work.
Agreement for the preparation of estimate documentation
Such an agreement is an equally important point in the performance of certain works; it is a type of contract. This is an agreement that the performer (contractor) undertakes the responsibility to develop an estimate and, within the agreed time frame, provide it to the customer, who must pay for the work in accordance with the conditions. The agreement for the preparation of estimate documentation is drawn up in writing and does not require certification by a notary, regardless of the amount of remuneration for services. This type of agreement must necessarily include certain essential conditions, namely: terms of reference for the preparation of estimate documentation, requirements for estimates, amount and terms of payment for work performed. In the absence of one of these conditions, the contract may be recognized as not concluded. Since drawing up an estimate is not only a complex matter, but also a very responsible one, as a rule, a fairly large number of additional conditions are included in contracts for estimate documentation. Some of the most important are sanctions for improper fulfillment of conditions, guarantees for results and the responsibility of the performer for the results.
Drawing up a contract
The most frequently concluded type of agreement is the drawing up of a contract or, in other words, for the performance of work. There are several types of such agreements:
- construction contract (construction of buildings and structures, utility networks, roads);
- to carry out survey and design work (geodesy, geology, architecture, design of utility networks, etc.);
- contract for work for municipal and state needs (garbage removal, maintenance of housing stock and infrastructure, etc.);
- household contract (for repair or other work).
Placing an order for subcontracted work is also included in the preparation of such an agreement and is carried out in cases where the General Contractor (usually in construction) attracts other performers to perform special work. In form, a subcontract agreement is similar to a construction agreement, but requires taking into account many legal subtleties regarding the resolution of disputes in construction. Therefore, it is preferable to entrust the drafting of a contract to a specialist or carry out his legal expertise, especially if the volume of work and payment amounts are significant.
Conclusion
The drafting of contracts for the provision of services must meet the following important requirement: the wording of the provisions must be as clear, understandable as possible and give unambiguous answers to the question of who should do what and when, under what conditions, what remuneration and in what order will be received, what will happen if the terms of the agreement are violated. A legally correctly drafted contract eliminates almost all possible risks and makes it possible to resolve all claims and disputes out of court.
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A contract is an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations (in accordance with Article 420 of the Civil Code of the Russian Federation).
Correctly adjusted contract work system in an enterprise can prevent unnecessary mistakes and misunderstandings that waste human and financial resources. In addition, it will help avoid many legal disputes.
For example, the simplest error in contract work can bring your organization not only to the arbitration court, but also cause the initiation of a “tax” criminal case. This, in turn, can affect the reputation of the organization, and in the case of tenders, negatively affect their results.
The author of the article, having climbed the career ladder from the position of secretary-assistant to deputy head of the legal department of a large federal unitary enterprise, shares his experience accumulated in the field organization of document flow contracts at the enterprise. In this article we will look in detail at:
- preparation of a draft agreement;
- its approval;
- conclusion of an agreement (signing and sealing);
- registration (including state registration);
- accounting and operational storage, issuance of copies (originals) of contracts;
- formation of a database based on counterparties’ documents;
- organization of contract execution;
- preparation of contracts for archiving.
The main thing is the principle!
At the initial stage of construction contract work systems it is necessary to determine the principle by which it will be built:
- centralized or
- decentralized.
To do this, you should conduct a survey of the business processes and operating methods of the enterprise. Based on the information received, it is possible to decide who will be responsible for organization of contract work:
- a specific structural unit (when choosing a centralized principle) or
- individual employees in different structural divisions (if choosing a decentralized principle).
Having analyzed experience in contract work in Russia, the author of the article can say that in most small and medium-sized companies document flow of contracts“broken” - divided between individual workers. The responsible executor prepares a draft agreement, organizes its approval, the secretary or clerk registers it, and the contract is stored either by the responsible executor, or the chief accountant of the enterprise, or someone else.
In large companies, as a rule, the principle of centralization is used: the responsible executive prepares a draft contract and submits it to the office management service (or contract department), which coordinates, concludes, registers, records and stores contracts, and issues their copies.
At the moment, organizing contract work on a centralized basis is the most optimal for large companies with a network of geographically remote divisions.
Preparation of a draft agreement
Preparation of a draft agreement (drafting your own draft agreement or reviewing one received from the counterparty) carried out by the responsible executor the structural unit that initiates the conclusion of the contract, together with a lawyer.
According to Article 161 of the Civil Code of the Russian Federation, transactions of legal entities between themselves and with citizens must be made in simple written form, with the exception of transactions requiring notarization.
The draft agreement is submitted for approval and signing as follows: number of copies:
- usually by the number of sides;
- for contracts valid from the date of registration by its authorized body of state power or local government (for example, lease agreements) - by the number of parties + 1 copy for the registering authority.
It is recommended to provide for the following in the structure of any business agreement: sections, which in some cases can be combined or divided:
- Preamble.
- Subject of the agreement.
- Rights and obligations of the parties.
- Cost and payment procedure.
- Special terms of the contract.
- Responsibility of the parties.
- Change, termination and termination of the contract.
- Confidentiality.
- Dispute resolution.
- Force majeure circumstances.
- Contract time.
- Addresses and details of the parties.
- Signatures of the parties.
We check the counterparty!
At the stage of working with the draft contract, the responsible executor is obliged to ensure that the counterparty provides a package of documents. This is due to a number of reasons. The fact is that the concluded agreement may not have legal force (for example, if it was signed by an unauthorized person). To avoid such excesses, you must carefully approach the verification of the counterparty’s documents.
Based on practice, we can say that a full check of the counterparty’s documents (that is, checking not only registration and constituent documents, but also securities, corporate documentation, assets, auditors’ opinions, financial reports, etc.) is advisable when concluding not all contracts. It may be necessary, for example, when merging an organization, since an operating business is being acquired, during the course of which certain obligations may have been created.
The list of documents provided by the counterparty is determined by the legal service of the organization. We present to your attention a sample list of them:
- documents containing information about counterparties:
- documents provided legal entity:
- copies of constituent documents,
- a copy of the document confirming the authority of the head of the legal entity,
- a copy of the power of attorney, certified in the prescribed manner by the legal entity, and a photocopy of the representative’s passport (if the agreement is signed on behalf of the legal entity not by its director, but by a representative),
- a copy of the certificate of state registration of a legal entity with all changes,
- a copy of the letter from the statistical observation authorities on the assignment of codes,
- a copy of the tax registration certificate,
- documents containing information including the company's postal address, telephone and bank details,
- copies of licenses certified by the seal of the organization and the signature of its head to carry out the relevant type of activity, certificates, etc. (in cases provided for by the current legislation of the Russian Federation);
- documents provided by the counterparty - by an individual:
- copy of the passport,
- a copy of the certificate of registration with the tax authority at the place of residence,
- a copy of the certificate of registration as an individual entrepreneur (for individuals - individual entrepreneurs),
- bank details (if payment is required through a bank),
- a copy of the insurance certificate of the Pension Fund of the Russian Federation.
- documents provided legal entity:
There is currently no general legal act establishing the procedure for verifying counterparty documents in all organizations in Russia. Although there are separate special regulations. For example, credit institutions and professional securities market participants have the right to request certain information about the counterparty:
- in relation to individuals - last name, first name, as well as patronymic (unless otherwise follows from the law or national custom), citizenship, details of an identity document, details of a migration card, a document confirming the right of a foreign citizen or stateless person to stay (residence) ) in the Russian Federation, address of place of residence (registration) or place of stay, taxpayer identification number (if available);
- in relation to legal entities - name, taxpayer identification number or code of a foreign organization, state registration number, place of state registration and location address.
Based on work practice, we can say that in most cases documents are submitted by the counterparty without problems. This has become the norm in business communication. Problems begin when checking documents. It may turn out, for example, that a license or power of attorney has expired. If, for a number of reasons, the counterparty cannot or does not want to submit documents, this should alert you.
Approval of the draft agreement
Prepared draft agreement the responsible executor submits to the office management service(or contract department) together with package of documents. At our enterprise it consists of:
- draft agreement in electronic form;
- documents prepared by the counterparty;
- approval sheet containing the following information:
- FULL NAME. the responsible executor, indicating his position, the name of the structural unit in which he works,
- executive visa,
- visas of executives of the responsible executor,
- type of document sent for approval (contract, additional agreement),
- name of the counterparty,
- list of endorsers,
- the date of receipt of the document for endorsement and the date of return of the document by the employees approving the contract.
The approval sheets for draft agreements are registered in a special journal, which makes it possible to clearly record the number of draft agreements received for approval. The journal also reflects the progress of approval of draft agreements. The presence of links to the date of receipt of the contract for approval and the date of return from the visa specialists helps to track the terms of approval by each visa specialist, as well as their violation;
- explanatory note (if necessary). The explanatory note signed by the responsible executor must contain the following information:
- justification for the need to conclude an agreement,
- justification for choosing a counterparty,
- about the counterparty,
- subject of the agreement (briefly),
- contract amount,
- conditions of payment,
- conditions for receiving payment or fulfilling obligations;
- feasibility study (TES) of the project if necessary. It contains the following information:
- justification of the feasibility of the transaction,
- subject of the transaction, total amount of the transaction, other essential conditions,
- estimate of costs associated with the execution of the transaction, economic consequences of the transaction,
- timing of the transaction,
- description of the counterparty: how long has this product (work, service) been present on the market, how has it proven itself, etc.
Please note that the above list of documents is approximate, because Each enterprise establishes its own procedure for contractual work, which largely depends on the type of activity of the organization and the scope of contracts. From the list above, each enterprise has the right to choose those documents that are most optimal for it.
For example, in large trading and manufacturing companies, the presence of an explanatory note to the contract is desirable. It gives a clear idea of the purpose of concluding the contract. If the head of an enterprise has to sign a large number of contracts every day, then an explanatory note significantly reduces the time he spends studying the contract. In addition, it provides necessary information for visa officers.
In large trading companies offering goods or services, standard contracts have been developed, in which case there is no need to prepare an explanatory note, and possibly an approval sheet. There is no need for these documents in small companies, where the manager can sign up to 2 contracts per day. Therefore, the organization of contract work should be approached creatively, analyzing many factors and choosing the most optimal way to negotiate contracts.
Approval of the draft agreement organized by the office management service(or contract department).
Since contractual relations are serviced by legal, accounting, and financial services, it turns out that contractual work should permeate the entire economic activity of the enterprise. Exactly properly organized negotiation of contracts helps eliminate the possibility of negative consequences associated with the invalidity of the contract or additional economic, tax, currency, customs and other losses.
Each enterprise can independently determine the list of persons carrying out approval of the draft agreement, which should be enshrined in local regulations. As a rule, “vising” positions are:
- lawyer;
- financial director;
- Chief Accountant;
- head of the concerned department.
The availability of additional visas depends on the specifics of the contract sent for approval.
To optimize the process of agreeing contracts in the organization, they are developing standard forms of contracts, which must be approved by order of the head of the organization (see Example 2). As a rule, this applies to contracts, the conclusion of which is related to the main activity of the enterprise: in trade organizations they are standard supply contracts, insurance companies are developing standard insurance contracts.
Upon conclusion standard contract its draft is agreed only with the legal service, which checks the submitted draft document for compliance with the standard one and checks the counterparty’s documents. This significantly reduces the time required to approve a draft contract.
It is necessary to distinguish standard contracts, approved by the organization, and so-called contract templates, representing sample contract texts. Unlike draft standard contracts draft contracts that are drawn up using a template must be agreed upon by a full range of specialists at a particular enterprise.
All specialists coordinating the draft agreement make notes in approval sheet(see Example 3), and if they disagree with the draft agreement, they must write a reasoned conclusion on the comments sheet or draw it up in the form of a separate document (see Example 4).
The approval sheet, developed at our enterprise and shown to you in Example 3, contains a section “Signing the agreement”. But it is relevant only for large enterprises with a large number of persons who have the right to sign contracts. The “Notes” section helps confirm the transfer of documents (their list) by employees of the office management service (contractual department) to the responsible executor for sending the documents to the counterparty, which is very important in case of loss of documents.
If there are no explanatory notes at the enterprise, you can enter additional information in the approval sheet by placing it before the “Approval” section:
The timing of approval of the draft contract by each specialist must be determined in a local regulatory act, this may be the Regulation on contract work. Wherein responsibility for compliance with visa deadlines is assigned to the specialists who carry out the approval, and control over compliance with deadlines is assigned to the head of the office management service (head of the contract department).
If you have any comments from visa persons to draft agreement it is transferred by employees of the office management service (contractual department) to the contractor to eliminate comments, and then re-sent for approval. If disagreements remain, the responsible executive initiates a meeting with the participation of the heads of interested departments. The meeting is recorded, and based on its results, the director of the organization makes a decision on the advisability or inexpediency of concluding an agreement.
When organizing the contract approval process, one nuance should be taken into account. In a local regulatory document, as a rule, the positions of specialists who have the right to endorse contracts without indicating their names are recorded. This is advisable because in case of dismissal or transfer of a visa person, no changes to the local regulations are required.
However, in the absence of employees (when sent on a business trip, on sick leave) who have the right endorsement of contracts, acting duties of the above specialists are not always appointed. Therefore, in order to carry out the continuous process of agreeing on contracts, an order of the organization may grant the right to endorse draft contracts additionally for specific employees. A sample order is given in Example 5.
Conclusion of an agreement
(signing and stamping)
The draft agreement agreed upon by all specialists is prepared by the office management service (or employees of the contract department) for signing.
There are cases when one of the parties, having received an agreement signed and sealed by the other party, replaced some pages, violating previously reached agreements. In order to avoid such situations, there are several ways in the practice of contract work:
- endorsement (initial) of each page of the contract by the persons who sign it. Maybe endorsement of the text of the contract the head of one of the structural divisions who has been granted such a right, which must be appropriately enshrined in the local regulatory act of the organization, for example, the head of the legal service. In this case, initialing can be carried out using a special stamp, which indicates:
- Name of the organization,
- number of the contract sheet from the total number of sheets, for example, “Sheet No. 1 of 5 sheets”,
- signature of the relevant manager;
- stitching of contract sheets indicating the number of stitched, numbered sheets and sealing this information with seals and signatures of the parties. Usually the inscription looks like that shown in Example 6. Particular attention should be paid to affixing a seal impression when certifying a document. It should include part of the job title of the person signing the document and part of the sheet on which it is written “Stitched, numbered, sealed ___ sheets.” It is this arrangement of seal impressions that helps avoid document forgery.
Right to sign an agreement have:
- persons holding the relevant position, in accordance with the constituent documents of the organization,
- persons who have received a power of attorney.
It should be taken into account that even whenthe contract is signed not a representative A the first person of the company - it may not always have the authority to complete a transaction.
For example, a decision to enter into a major transaction, the subject of which is the property of a joint-stock company, the value of which is more than 50% of the book value of the company’s assets as of the date of the decision to complete the transaction, must be approved by the general meeting of shareholders (Article 79 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”).
A similar procedure has been introduced for managers of unitary enterprises. In accordance with Article 23 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises,” the head of a unitary enterprise is limited in the size of transactions. Thus, a transaction for the alienation of property should not exceed 10% of the authorized capital or 50 thousand minimum wages established by law (currently this is 5,000,000 rubles). To conclude larger transactions, it is necessary to obtain the consent of the owner.
Similar restrictions are also provided for in Art. 46 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”.
In addition, additional restrictions on the powers of the company's first person may be contained in the constituent documents of the enterprise. If such restrictions exist, it is necessary to ensure that the decision to enter into a contract is approved by the relevant persons. Otherwise, the contract may be declared invalid by virtue of Art. 174 Civil Code of the Russian Federation.
If the agreement is signed by a person on the basis of a power of attorney, It is necessary to pay attention to what type it belongs to. Depending on the content of the powers specified in the document, the so-called ones are distinguished:
- general powers of attorney (issued for a representative to carry out a wide variety of transactions on behalf of the represented person),
- special powers of attorney (issued for concluding homogeneous transactions (agreements), for example, only purchase and sale agreements) and
- one-time powers of attorney (issued to sign a specific agreement, and the power of attorney must indicate the number and date of the agreement, the name of the counterparty with whom this agreement must be concluded, briefly the subject of the agreement, as well as the amount for which the agreement is concluded).
Why is it necessary to know this difference? The mere fact that the person signing the agreement has a power of attorney does not mean that the person has the authority to enter into this agreement. Let's imagine specific situations (see Examples 7 and 8). In both cases, the transactions will be invalid.
It should also be taken into account that power of attorney is issued for a certain period, which is established at the discretion of the person who issued it, but cannot exceed 3 years (Article 186 of the Civil Code of the Russian Federation). If the validity period is not specified in the power of attorney, it remains valid for a year from the date of its issue. A power of attorney that does not indicate the date of its issue is void. This document must be signed by the head of the organization, or a person authorized to sign powers of attorney. A power of attorney issued by way of delegation is valid only if notarized in accordance with clause 3 of Art. 187 of the Civil Code of the Russian Federation (with the exception of certain cases), the validity period of such a power of attorney cannot exceed the validity period of the power of attorney on the basis of which it was issued.
A sample of a special power of attorney is given in Example 9. Please note that the seal impression must include part of the title of the position of the person signing the power of attorney. In addition, we will give an example of drawing up an order to revoke a power of attorney for such a common reason as the dismissal of an employee (see Example 10).
In the office management service (contractual department) there should be keep copies (or originals) of powers of attorney for the right to sign contracts. For systematization of information on powers of attorney a Register of powers of attorney for the right to sign contracts is compiled (see Example 11). Copies of powers of attorney must be provided to the heads of departments preparing draft agreements. Based on the issued powers of attorney, a Register of sample signatures of persons entitled to sign contracts is compiled (see Example 12).
We present to your attention a matrix of the process of agreeing and signing contracts (for a sample, see Example 13).
Legend: P - signs; MP - can sign; B - endorses. Pay special attention to the symbol MP - can sign. From a legal point of view, several people may have the right to sign the same agreements at once (primarily the first person of the organization, as well as other persons who have the appropriate powers of attorney). However, according to the procedure established within the organization, homogeneous agreements can be signed by only one person, while other persons have the opportunity to exercise their powers only in the event of his absence (illness, being on a business trip, etc.).
If the enterprise has a practice of sending cover letters along with contracts, the office management service (contract department) may be assigned the function of preparing them. Letters are submitted for signature by the manager along with the draft agreement.
All contracts signed by the first person of the organization or a person authorized by him on the basis of a power of attorney are certified by the seal of the organization. The seal is placed on the contract when:
- availability of signature;
- availability of visas of the required persons;
- if the signature on the contract matches the sample signature of the authorized person in the Register of Sample Signatures.
Registration of contracts
All contracts signed by the head of the enterprise (authorized person) are transferred to the records management service (contract department) for registration and assignment of the corresponding number to the contract.
Each party to the contract must, after signing, assign it a serial number and ensure its internal registration. Therefore, the contract number is usually complex, consists of separate numbers of counterparties, which are written through a fraction, which is not always convenient (see Example 14).
In practice, another way is possible assigning a contract number: if the organization receives a contract that is already assigned the number of one side, then the second party, having completed internal registration, indicates its registration number on the back of the last page of the document. In this case, a special stamp is used, which indicates the name of the organization, the registration number of the agreement and the date (see Example 15). In this case, the contract number will be considered the number assigned by the counterparty (see contract No. AB104 with Leos LLC in Example 16).
When an organization receives an agreement without a number, it is assigned a number that matches the registration one, then it is placed on the first page of the document (see agreement with ZAO MOR No. 116/10/06 in Example 16).
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For large companies we can recommend the following structure contract registration number: serial number of registration in the office management service, number of the structural unit in accordance with the approved classification in the organization or letter designation of the structural unit, year of conclusion of the contract. For example: 108/07/06 or 199-KS/06, where KS is the letter designation of the commercial service.
Registration of contracts carried out in a special journal, which is usually maintained electronically. We recommend the following composition of columns in the Contract Registration Journal:
- registration number;
- additional number (counterparty number);
- agreement date;
- name of the counterparty;
- subject of the contract;
- validity;
- responsible department (responsible executor);
- contract price;
- availability of applications;
- who signed the agreement.
If the organization uses fractional numbering of contracts, then instead of two columns “registration number” and “additional number (counterparty number)”, one is entered - “contract number”.
In a number of cases determined by law, contracts require state registration. For example:
- a lease agreement for a building or structure concluded for a period of at least a year is subject to state registration and is considered concluded from the moment of such registration;
- licensing agreements (registration and re-registration of brand names, trademarks, service marks, assignment of rights of claim under trademarks) come into force only after their registration with Rospatent;
- transactions with land and other real estate are subject to state registration in accordance with Art. 164 Civil Code of the Russian Federation.
Transfer of the signed contract to the counterparty
The agreement signed on behalf of your organization is handed over to the responsible executor against signature on the approval sheet (see Example 3 in the first part of the article on page 35 of the March 2006 issue of the magazine) for transfer to the counterparty. In our organization, the responsibility for delivering the contract to the counterparty rests with the contractor under the contract. As a rule, in large enterprises the sending of documents is entrusted to the preschool educational institution service, which must maintain a Register of sent documents.
The agreement can be sent by registered mail with acknowledgment of receipt. It can be handed over against signature to authorized officials of the counterparty organization or in another way that allows you to reliably confirm the fact of receipt of the contract.
When sending important documents by mail, you should do so by registered mail with return receipt requested. Tracking the return of notifications will allow you to monitor the progress of delivery of contracts to partners. In some cases, it is appropriate to send documents with an inventory of attachments (in the form of valuable letters and parcels).
Unfortunately, when sent by mail, documents may be lost, damaged, or not delivered on time. In all these cases, according to the Rules for the provision of postal services (approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 221), you can contact the post office with a claim. Moreover, both to the postal operator who accepted the item, and to the postal operator at the destination of the postal item. Postal providers are required to accept your claim for consideration within 6 months from the date of sending the documents you are looking for or the documents they have damaged.
The claim must be submitted in writing. Copies of all documents related to the issue under consideration are attached to it. First of all, this is a shipping receipt and an inventory of the attachment (if we are talking about a valuable item). A copy of the contract for the provision of postal services is attached only if one has been concluded. If the essence of the claim concerns a delay in the delivery of a simple item, then it is necessary to present its envelope with the dates of receipt and receipt of the postal item indicated on it.
The time frame for consideration of claims depends on the geography of movement of the postal item with which problems arose. For shipments within the same locality, you should receive a response within 5 days. For all other postal items and transfers - within 2 months.
Issuance of originals and copies of contracts
Issuance of originals and copies of contracts carried out by employees of the office management service (contractual department) based on a written request. At our enterprise this is documented in an internal memo. It must indicate the rationale for the need to obtain the document, to whom (full name, position) and for how long it is issued. For examples of memos, see Examples 17 and 18. For a method of filling out a special journal that records the fact of issuing and returning documents, see Example 19.
At issuance of the original contract Employees of the office management service (contract department), according to the established procedure at our enterprise, are required to make a photocopy of the contract and place it in the file.
To maintain order and avoid losing important documents, you can periodically carry out the following procedure. At the end of the month, the office management service (contract department) prepares a report on the movement of contracts. On its basis, memos with a list of contracts that need to be returned are sent to all heads of structural divisions (see Example 20).
Accounting for counterparties' documents
The internal regulatory document must define a list of registration and constituent documents that should be requested from the counterparty before concluding a transaction with him. The composition of the documents depends on who your organization is dealing with - an individual or a legal entity, a resident or non-resident of the Russian Federation (we discussed this issue in more detail in the first part of the article published in the previous issue of the magazine).
All necessary documents about the counterparty are provided by the responsible executor along with the contract to the office management service (contractual department), where they are subject to storage. Contractors' documents are compiled into files using a card index system in alphabetical order with a general directory, which is usually maintained in electronic form (it indicates the case number in which the counterparty's documents are stored). Each counterparty can be assigned a code.
When concluding several contracts with the same counterparty, resubmission of documents is not required. Upon receipt of each new contract, the documents are checked for:
- the right to sign the agreement, the term of office of the head of the enterprise;
- validity period of the license, powers of attorney;
- registration addresses;
- compliance of the subject of the agreement with the direction of the counterparty’s activities in accordance with the charter.
If the need arises, additional documents may be requested from the counterparty.
Storage of contracts
Contracts signed by an authorized person of the organization are transferred by employees of the records management service (contract department) to the responsible executor, and contracts that have the signatures of all parties (as a rule, these are bilateral transactions) remain in the records management service for operational storage.
All contracts are formed into cases in accordance with the nomenclature of cases of the records management service (contractual department), which is part of the Consolidated Nomenclature of Cases of the enterprise. When compiling a nomenclature, it is very important to choose classification schemes for its construction.
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The main requirement is that the title of the case must clearly and in a generalized form reflect the main content and composition of the documents of the complex, since it is by the title that the necessary documents are searched. The headings of cases can be clarified in the process of forming and registering cases, but in any case, when compiling them, you should adhere to the established rules. The required elements of a case title are:
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In some cases, it is possible to form cases based on object characteristics. So, in one case, contracts will be formed, concluded with a specific organization, which will act as a specific object.
Therefore, when developing case nomenclatures, you must first develop principle of classification of contracts at the enterprise in such a way that it ensures the fastest possible search for contracts, allows for the reasonable distribution of documents and the formation of cases. After all, contracts are often concluded not for one year, but with the possibility of their subsequent extension. Therefore, usually in the office management service (contractual department) a large number of existing contracts concluded several years ago may be stored.
Document retention periods are established in accordance with the “List of standard management documents generated in the activities of organizations, indicating storage periods” (M., 2000), with departmental lists of documents and other regulatory documents. In this case, contracts with a permanent shelf life should be distinguished separately, for example:
- gift agreements;
- contracts for the purchase and sale of land, buildings, premises;
- agreements on long-term lending and investment activities;
- contracts for the right of ownership, possession, use, disposal of property (a permanent storage period for all contracts of this group is established by Article 57, at the same time for individual contracts of this group the List establishes exceptions - shorter storage periods, for example, Article 28 obliges to store purchase agreements -sale of shares by shareholders only 5 years after their expiration);
- agreements for registration and re-registration of company names, trademarks, service marks;
- agreements on acceptance and rental of premises;
- privatization agreements;
- agreements on economic, scientific and cultural relations;
- contracts for the supply of materials (raw materials), products, equipment for government needs.
It should be noted that when storing and forming cases, each agreement must be accompanied not only by additional agreements on its amendment and addition, but also, if determined by the terms of the agreement, letters on changing the details of the parties, as well as letters on unilateral termination of the agreement ok. Such letters received from the counterparty must be registered. Letters sent by your organization to the counterparty must also be registered and marked as having been received by an authorized person of the counterparty. In addition, approval sheets for specialist visas may be attached to each contract.
Let us give as an example a fragment of the nomenclature of affairs of the office management service, directly related to contract work:
1 See Federal Law No. 115-FZ of August 7, 2001 “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism.”
In the life of ordinary citizens and the activities of various organizations, there is often a need to perform various types of actions carried out to achieve a certain useful effect or result.
Not everyone has the opportunity to perform these actions for themselves (they do not have the necessary skills, knowledge, time, etc.). In such a situation, it is necessary to engage a third party/company to provide the appropriate service.
What kind of document is this?
In Russian law, a contract for the provision of services is an agreement under which one of the parties undertakes to perform certain actions, and the other - to pay for them.
The subjects of such an agreement can be both individuals (citizens) and legal entities (organizations, individual entrepreneurs). In this case, the person who undertakes to perform the services is usually called the contractor, and the one who pays for them is called the customer.
If the contractor is a commercial organization, and the customer is an ordinary citizen, the contract is considered domestic and, among other things, is subject to the regulation of the Law on the Protection of Consumer Rights.
Most often, the document is drawn up in simple written form. If it is concluded between citizens and costs up to 10 thousand rubles, it can also be in oral form. If an agreement is concluded for personal services, then it can be formalized by issuing a receipt, coupon, ticket, etc. In the case of immediate execution of the customer’s task (in his presence), it is sufficient to issue a check or receipt confirming payment.
All the nuances of disputes under such an agreement are discussed in detail in the following video:
The legislative framework
General provisions are established by the Civil Code of the Russian Federation (Chapter 39). Separate rules govern such types of agreements as transportation, storage, assignment and others specified in paragraph 2 of Art. 779 of the Civil Code of the Russian Federation. In addition, Art. 421 of the Civil Code of the Russian Federation establishes that parties can enter into contracts not expressly named in the law.
The distinction between contracting and the provision of services lies primarily in the fact that the latter do not, for the most part, involve a material expression, and in some cases do not have a beneficial effect from the actions performed by the contractor. That is, the value for the customer is the activity of the performer itself (a classic example is a hairdresser). Therefore, when drawing up an agreement, it is very important to accurately describe the subject of the agreement, specifying what exactly is included in the concept of a particular service and what actions the contractor must perform to provide it.
In some cases, a service may be accompanied by the creation of some kind of material result (for example, legal ones may end with the issuance of a legal opinion, medical ones - with the production of an image, product, prosthesis, etc.). But in any case, such a result is an expression of part of the performer’s actions.
The provision of services for individuals (citizens) is regulated by:
- Law on the protection of consumer rights.
- Rules for consumer services in the Russian Federation (1997, as amended).
- Rules for the provision of public services (2011, resolution No. 354).
Their varieties
Considering the diversity of needs of individuals and legal entities for certain business results, there are many types of such agreements.
These are, first of all, those listed in Art. 779 of the Civil Code of the Russian Federation services:
- paid educational;
- communications;
- security;
- in the field of public utilities;
- audit;
- paid medical.
In turn, almost each named type can be specified taking into account the needs of the customer (for example, from municipal services the service for removal of solid household waste, water supply and others is distinguished, security services are divided into services of physical security and security using technical means).
In general, such contracts can be classified into:
- compensated(provided by the contractor for a fee);
- gratuitous(for which no remuneration is provided).
It is interesting that the Civil Code of the Russian Federation talks about, but it is not prohibited to enter into gratuitous agreements. However, it should be remembered that the absence of payment terms in the text does not make the contract gratuitous, and by court decision the cost of actions can be recovered from the customer.
In order to avoid subsequent disagreements, if the parties have agreed on gratuitous activities, this must be specifically stated in the text of the document.
Civil Code of the Russian Federation in Art. 780 states that services must be provided personally by the performer. Therefore, it is necessary to agree on the involvement of a co-executor at the stage of concluding the agreement.
It is necessary to distinguish from co-execution agency contract, according to which the customer-principal instructs the contractor (agent) to carry out certain actions in his own interests and at his own expense. As an independent type, such a contract is regulated by Ch. 52 of the Civil Code of the Russian Federation. It must specify exactly what functions the contractor must perform, whether he acts on his own behalf or on behalf of the customer, what powers he has, how expenses are distributed and paid, and how the agency is terminated.
In general, the legislation does not provide a clear delineation of some contracts, leaving the opportunity to establish rights and obligations at their own discretion to the parties - the customer and the contractor.
In what cases are they concluded?
The most common types of contracts in civil legal relations are:
- - to perform appropriate actions in accordance with the laws of the Russian Federation. If the executor is a lawyer, it is necessary to establish, in addition to the procedure for payment of services, reimbursement of expenses, including legal expenses.
- or consulting. Such services can be provided to individuals, but more often the customers are organizations. The most common types are: tax, managerial, financial, designed to increase the efficiency of the enterprise.
- Medical. In addition to the norms of the Civil Code, they are regulated by the Rules for the provision of paid medical services (Resolution of the Government of the Russian Federation of 2012, No. 1002). The customer can be either an individual or a legal entity, and the contractor can be an organization that has the corresponding type of activity. It is interesting that the end consumer may not be the customer, but the person specified by him in the agreement.
- Promotional. In general, such services are very diverse - you can advertise (promote, maintain interest) goods, works, websites, and in a wide variety of methods (in the media, the Internet, etc.). In addition to the Civil Code of the Russian Federation, they are regulated by the Law “On Advertising” (FZ-38, 2006).
- Accounting. They are often classified as consulting or management. Some services require special certification as a professional accountant.
- Security. They are regulated by the Law on Protection of Activities, government regulations on detective activities and a number of other legal acts. To provide them, the performer must have.
- Educational. An appropriate one is also needed here.
It is noteworthy that there is no contract for construction services as such, since this activity, by its nature, is accompanied by the creation of a material result - a constructed object, repair, demolition of a building, etc., and therefore refers to contract work, not services.
Also, the Civil Code of the Russian Federation specifically distinguishes (cargo, luggage, passengers) and transport expeditions, without relating them directly to the provision of services.
Nuances of the conclusion
The legislation allows the conclusion of such agreements between both individuals and legal entities. According to the Civil Code of the Russian Federation, any organization has the right to attract a citizen under an agreement if such activity cannot be considered as entrepreneurial (aimed at constant, systematic profit-making).
More often there is a situation when an individual acts on the customer’s side, and a legal entity acts on the contractor’s side. If a citizen orders a service for personal (non-business) purposes, such an agreement is subject to the Law on the Protection of Consumer Rights and is characterized by increased protection of the customer’s rights by the law. In addition, court claims related to this are not subject to state duty and are considered in a shortened time frame.
Form and rules of registration
The law establishes that a contract for the provision of services must have certain mandatory provisions:
- The subject of the agreement and the list of services must be named (preferably in detail).
- The timing of their provision, including start and end.
- Cost (if it is not specified, the usual price for this type of activity will be charged).
- Requirements for the quality of actions.
- Responsibility of the parties (can be established by agreement of the parties, differing from the standard specified in the Civil Code of the Russian Federation).
The contract is considered concluded if the customer and the contractor agree on all essential terms. As a rule, it is concluded in writing, less often in the form of a receipt, check, etc.
Also, the contract is considered concluded if the parties expressed consent in another way, for example, in response to the customer’s application, the contractor began to provide the service (Article 438 of the Civil Code of the Russian Federation).
Contents, controversial issues and their resolution
The structure of the document is similar to a number of other agreements and, as a rule, consists of:
- Preambles (indicating the parties, on the basis of which they act, the date and place of conclusion of the contract).
- Subject of the agreement (essence and composition of services, period of provision, payment, etc.).
- Obligations of the parties (for the customer, this is the obligation to pay).
- Section establishing liability for non-fulfillment, inadequate quality, delay, etc.
In addition to the above, they usually include provisions on acceptance of services (act of acceptance), liability for refusal to fulfill obligations, and the possibility of attracting co-contractors. Signatures of the parties and their seals (if any) are required.
It is important to remember that the contract can be terminated at any stage, either by the decision of the customer or the contractor. In this case, the customer reimburses the costs incurred to fulfill the agreement. If he refused the contract before its commencement, liability will not be established.
The contractor is obliged to compensate for losses caused by refusal to fulfill the agreement at the request of the customer.
Like any civil agreement, this agreement can be challenged in court. Most often, the pre-trial stage of dispute resolution includes a claim settlement procedure (an individual must be considered within 10 days). In this case, a dispute between an individual and an organization is resolved in a court of general jurisdiction or before a magistrate (depending on the value of the claim), and between two organizations - in an arbitration court.
According to this document, one party provides a service, and the other pays for it: everything is extremely simple.
The legislation does not contain any special requirements for the composition of the obligation to provide paid services, but do not forget that some types of activities are licensed.
Sample contract
This is a basic template; the conditions can be clarified, added, and made more acceptable to one party or another. So, for example, you can add a clause about the possibility of the Contractor refusing to work in certain conditions, you can prescribe a different payment scheme for services, for example, provide for prepayment, etc.
Service agreement
City, date
(name of organization or full name), acting on the basis (registration certificate), hereinafter referred to as the Customer, and (name of organization or full name), acting on the basis (registration certificate), hereinafter referred to as the Contractor, have entered into this agreement as follows.
1. Under the contract for the provision of paid services, the Contractor undertakes to provide the Customer with the services specified in clause 1.2 of this agreement, and the Customer undertakes to pay for the ordered services.
1.1. The Contractor undertakes to provide the following services: _________________________________, hereinafter referred to as Services.
1.2. The period for completing the work is from “__” ______ 20 __ to “__” ______ 20 _. The Contractor has the right to complete the work ahead of schedule.
1.3. Services are considered provided after the Customer signs the acceptance and transfer certificate for Services no later than 3 days after the end of the work period (see clause 1.2.).
2. Rights and Obligations of the parties
2.1. The Contractor undertakes:
2.1.1. Provide Services of appropriate quality, in full and on time specified in clause 1.2. actual agreement.
2.1.2. At the Customer's request, correct all identified deficiencies free of charge within 5 days.
2.1.3. The contractor must perform the work personally.
2.2. The customer is obliged:
2.2.1. The Customer is obliged to pay for the work at the price specified in clause 3 of this agreement within _____ days from the date of signing the acceptance certificate for the Services.
2.3. The customer has the right:
2.3.1. Refuse to perform the contract at any time before signing the act by paying the Contractor part of the established price in proportion to the part of the Services provided performed before receiving notice of the Customer’s refusal to perform the contract.
3. The price of this agreement (paid to the Contractor) is: _________________________ rub.
3.1. Payment by the Customer to the Contractor of the contract price is carried out by transferring funds to the Contractor's bank account specified in this contract no later than 5 banking days after signing the Transfer and Acceptance Certificate (see clause 1.3).
4. Responsibility of the parties
4.1. For violation of the term for the provision of Services specified in clause 1.2 of this agreement, the Contractor shall pay the Customer a fine in the amount of ___% of the contract amount and a penalty at the rate of ___% of the contract amount for each day of delay.
4.2. Liability measures of the parties not provided for in this agreement are applied in accordance with the norms of civil legislation in force in the territory of Russia.
4.3. Payment of the penalty does not relieve the Contractor from fulfilling his obligations or eliminating violations.
5. Dispute resolution procedure
5.1. Disputes and disagreements that may arise during the execution of this agreement will, if possible, be resolved through negotiations between the parties.
5.2. If it is impossible to resolve disputes through negotiations, the parties, after implementing the procedure for pre-trial settlement of disagreements provided for by law, submit them for consideration in ________________ court.
6. Final provisions
6.1. Any changes and additions to this agreement are valid only if they are made in writing and signed by authorized representatives of the parties. The appendices to this agreement constitute its integral part.
6.2. This agreement is drawn up in two copies in Russian. Both copies are identical and have the same strength. Each party has one copy of this agreement.7. Addresses, details and signatures of the parties.
Customer: ______________
Artist: ______________