Distribution Services Agreement
This Agreement (“Agreement”) according to Title Eleven of the Swiss Code of Obligation (“CO”) is a legally binding agreement between:
YOU, being any person or company distributing Content or Devices under the terms of this Agreement (“You” or “Distributor”); and
Yandex Services AG (“Yandex”) a company incorporated under the laws of Switzerland with address at: Werftestrasse 4, 6005 Luzern, Switzerland.
This Agreement sets forth the terms and conditions applicable to the distribution relationship between You and Yandex regarding Your distribution of Content or Devices together with Yandex products.
BY SIGNING A SERVICES ORDER (INCLUDING BUT NOT LIMITED TO SUBMITTING YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON “ACCEPT” OR OTHER BUTTONS PROMPTING YOU TO ACCEPT THIS AGREEMENT ON THE RELEVANT YANDEX ACCOUNT REGISTRATION PAGE), YOU:
(I) REPRESENT AND WARRANT THAT THE INFORMATION PROVIDED BY YOU IS TRUE AND ACCURATE; YOU HAVE THE FULL LEGAL CAPACITY NECESSARY TO ENTER INTO THIS AGREEMENT UNDER ANY LAW THAT MAY BE APPLICABLE TO YOU, AND THAT YOU ARE, IN ANY CASE, AT LEAST EIGHTEEN (18) YEARS OLD; YOU ARE EITHER (A) THE CONTENT OWNER OR AN AUTHORIZED OR LEGAL REPRESENTATIVE OF THE CONTENT OWNER, AND HAVE THE POWER AND AUTHORITY TO BIND THE CONTENT OWNER TO THIS AGREEMENT AND ENTER INTO THIS AGREEMENT ON ITS BEHALF, OR (B) THE DEVICE MANUFACTURER OR AN AUTHORIZED AGENT OR LEGAL REPRESENTATIVE OF THE DEVICE MANUFACTURER, AND HAVE THE POWER AND AUTHORITY TO BIND THE DEVICE MANUFACTURER TO THIS AGREEMENT AND ENTER INTO THIS AGREEMENT ON ITS BEHALF; AND
(II) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT (INCLUDING ALL APPENDICES THERETO), UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND/OR HAVE CAUSED THE CONTENT OWNER/THE DEVICE MANUFACTURER TO DO SO.
“Actions” mean those particular actions that You perform to distribute the Distribution Pack in the Territory.
“Activation” means a unique, as counted by Yandex statistics, use of the Distribution Pack that have been distributed with Content within the Territory or preinstalled on a Device distributed within the Territory.
“Apps Recommendations“ mean paid highlighted apps recommendations shown to End User based on their interests and displayed in a special block within the software from the Distribution Pack.
“Content” means an item, which may be a software application, game, web site or any other digital material, which is distributed by You together with Yandex products under the terms of this Agreement.
“Content Owner” means You as the person or company holding the rights in and to the Content.
“Device” mean a consumer electronic device which are manufactured and/or imported and/or supplied and/or retailed by Distributor or Distributor’s partners.
“Distribution Pack” means the software, services, settings for browsers and other products (including search boxes) of Yandex that are to be distributed by You hereunder.
“Effective Date” means that particular date when You have signed the first Services Order hereunder and thus concluded this Agreement with Yandex.
“End User” means any individual user who (a) accesses Content for customary personal use purposes and not for redistribution or (b) uses a Device.
“End User Data” means various information on End User, including but not limited to, cookies, location data or any other information about End Users.
“Install” means a unique, as counted by Yandex statistics, installation of the Distribution Pack onto a Device distributed within the Territory.
“Intellectual Property Rights” mean exclusive rights, including patents on inventions, utility models, designs; exclusive rights in trademarks and trade dress; rights in designs, trade, business or domain names, (whether registered or not); rights in original works of authorship, including copyrights and relating (neighbouring) rights; exclusive rights in know-how, trade secrets or other intellectual property or other similar rights existing anywhere in the world now or in the future and additions, modifications, improvements or applications to or for the foregoing.
“Revenue”means the net revenue (less all taxes (including VAT), agency commissions, and remuneration accrued according to Yandex Zen Monetization Terms&Conditions) generated by Yandex, as the case may be, from:
(i) the advertisements and/or Apps Recommendations placed within the software from the Distribution Pack that have been assigned with unique client identifiers as a result of the installation from the Distribution Pack distributed by You; or
(ii) provision of technical opportunity of serving and displaying advertisements and/or Apps Recommendations in ad blocks within the software from the Distribution Pack that have been assigned with unique client identifiers as a result of the installation from the Distribution Pack distributed by You.
The amount of Revenue shall be calculated using solely Yandex data, books and records.
“Services Order” means a document, specifying exact Services to be provided by Distributor to Yandex, fees and other relevant terms applicable to providing Services under. Any Services Order is an integral part of this Agreement and shall be incorporated herein by reference.
“Trademarks” of a Party or a Party’s partner means that person’s trade names, trade dress, trademarks, service marks and logos.
“Web Content” mean any publicly available third-party web content (which may include text, data, information, photos, images, graphics, audio, video or other content), accessible through Yandex software, services, settings for browsers and other products included in the Distribution Pack.
“Yandex Group” means Yandex, Yandex Inc. (USA), Yandex N.V. (Netherlands), YANDEX LLC (Russia) or any other company under direct or indirect control by Yandex N.V. (Netherlands), where “control” means the ownership of, and/or the right to vote, securities representing at least 50% of the voting power of the relevant entity on matters submitted to the equity holders of such entity generally, or other right to determine and manage the operations of such entity.
As used herein, words importing the singular also include the plural and vice versa where the context requires. Words importing one gender also include other genders. Words importing persons or parties shall include firms and corporations and any organization having legal capacity.
Reference to the words “include” or “including” shall be construed without limitation to the generality of the preceding words.
The headings are for convenience only and shall not be taken into consideration in interpretation or construction of this Agreement.
1.1. For consideration as set forth herein, Distributor shall provide to Yandex services related to attracting new users of the products, services and software of Yandex by distributing the Distribution Pack (the “Services”) by performing certain Actions, in the manner fully described in Services Orders hereto.
1.2. In consideration for providing the Services, Yandex shall pay Distributor fees in accordance with the provisions of the Agreement and Services Orders thereto.
2. YOUR RIGHTS AND RESPONSIBILITIES
2.1. For the whole term of the Agreement You shall fully comply with all applicable laws as well as procure that Your products, services, goods, Devices, web sites and software that are used for the provision of or in connection with the Services hereunder, are in compliance with any and all applicable laws, regulations, common practices and best industry standards.
2.2. Within the course of providing the Services hereunder, You shall follow and abide by all requirements and guidelines of Yandex set forth in any appendices hereto as well as other requirements and recommendations that Yandex communicates to You during the term of the Agreement.
2.3. You have the right to subcontract and otherwise engage third parties to perform the Services (or any part thereof) and/or any other Your obligations under this Agreement subject to prior written approval from Yandex.
2.4. Solely for purposes of providing the Services and the performance of this Appendix, Yandex hereby grants to You for the whole term (including the initial term and any renewal term) of this Agreement in the Territory a limited, royalty-free, fully paid-up and non-exclusive right and license to:
2.4.1. copy, reproduce, integrate the software included in the Distribution Pack into Distributor’s Content and/or install the software included in the Distribution Pack onto an unlimited number of Devices; and
2.4.2. export, import, distribute, sell and otherwise make available the copies of the software as part of the Distribution Pack installed onto Devices; and
2.4.3. copy, reproduce, publicly display, communicate to public and make available the software included in the Distribution Pack and Yandex Trademarks (including but not limited to using images, screen shots and videos of the software included in the Distribution Pack and Yandex Trademarks in the Distributor’s marketing materials and demonstrations) in, in connection with and through the Services as well as in marketing of Devices or Content, subject to full compliance with the Yandex brand/trademark guidelines and prior written approval from Yandex on a case-by-case basis.
2.5. Distributor may sublicense any and/or all rights granted to it under section 2.4 to any third party subcontracted and/or engaged by Distributor under section 2.3 (and solely for the purposes described in that section) with a prior written consent of Yandex.
2.6. Yandex will provide You with updates and new versions of the software included in the Distribution Pack as soon as they become available.
2.7. Solely for the purpose of promotion of the Yandex products and services as preinstalled on the Devices or integrated into Content, Distributor hereby grants to Yandex or procures for Yandex to be granted for the whole term (including the initial term and any renewal term) of this Agreement in the Territory a limited, royalty-free, fully paid-up and non-exclusive right and license to: copy, reproduce, publicly display, communicate to public and make available the design and layout of the Devices, Content and Distributor’s or its partner’s Trademarks (including but not limited to using images, interface screen shots and videos of the Devices, Content and Distributor’s or its partner’s Trademarks in Yandex marketing materials and demonstrations) in, in connection with and through the marketing of Yandex products and services, subject to full compliance with the Distributor or its partner brand/trademark guidelines and prior written approval (e-mail is sufficient) from Distributor on a case-by-case basis.
2.8. Artificial Traffic. You shall not, directly or indirectly (independently or through the assistance of third parties), take action designed to falsely increase the number of clicks and/or Installs/Activations and/or interactions within Apps Recommendations, including, but not limited to, making queries or clicks and/or Installs/Activations and/or interactions within Apps Recommendations manually and/or by using any automatic software or hardware means for making of clicks and/or Installs/Activations and/or interactions within Apps Recommendations. Such artificial mala-fide traffic will not be calculated when determining the amount of Fee due to You.
2.9. Prohibited Distribution. You shall have no right to distribute the Distribution Pack in any manner other than explicitly set forth herein. Any clicks on advertisements and/or installs/activations of apps placed in the software from the Distribution Pack made as a result of such unauthorized distribution shall not be counted as part of the Revenue to be shared with You.
2.10. No Use of Search Logs. You shall not collect, save, store, utilize, transfer to any third parties or otherwise use any search queries of End Users to Yandex search engine and the search engine’s responses to those queries.
2.11. Notice to Yandex. You shall notify Yandex not later than 10 (ten) business days before the Devices go in retail sales, where such notice must specify the technical information for each Device, namely the values of the parameters of the Build.MANUFACTURER and Build.MODEL in accordance with the developer documentation for the Android OS, located at http://developer.android.com/reference/android/os/Build.html.
2.12. Distribution Pack Updates. In the case where Yandex has provided You with a new version of the Distribution Pack, You shall integrate this new version of the Distribution Pack into Your Content or pre-install this new version of the Distribution Pack onto all models of the Devices that are running in production after You have received the new version of the Distribution Pack, and, if reasonably possible, replace older versions of the applications included with the Distribution Pack to newer versions of the same on the Devices that are already in use.
2.13. No Delete or Change of the Distribution Pack. You agree not to undertake any action (including, without limitation, releasing a firmware/software update, making those available on their web properties, updating the Devices remotely via the Internet, etc.) that would cause applications and/or settings from the Distribution Packs installed on the Devices to be removed, changed or that would change the placement of those on the Devices.
2.14. You shall not mislead End Users of Your Content or Devices with Distribution Pack, including, but not limited to, by way of declarations to End Users concerning any guarantees made by Yandex as to the properties of Distribution Pack, the review and approval of Your Content or Devices by Yandex and any joint and/or several liability of You and Yandex for the quality of Your Content or Devices or Distribution Pack.
3. SPECIAL TERMS FOR CERTAIN PRODUCTS
3.1. The following terms and conditions in this Section 3 apply to You if You distribute and/or incorporate Zen and/or ZenKit SDK and/or YAD Toolbox together or within Your Content.
3.2. In case the Distribution Pack provided to You by Yandex contains ZenKit SDK and/or YAD Toolbox, then You are also granted a limited license to integrate the ZenKit SDK and/or YAD Toolbox into your designated Content, as agreed by Yandex, for the purpose of providing Zen service and/or Apps Recommendations to End Users within Your Content. For the avoidance of doubt, You may only use Zen, ZenKit SDK, and YAD Toolbox as set forth in this Section 3.2.
3.4. You agree that You will not mislead End Users of Your Content incorporating Zen, ZenKit SDK and/or YAD Toolbox, including, but not limited to, by way of declarations to End Users concerning any guarantees made by Yandex as to the properties of Zen, ZenKit SDK and/or YAD Toolbox, the review and approval of such items by Yandex and any joint and/or several liability of You and Yandex for the quality of Your Content and/or Zen, ZenKit SDK and/or YAD Toolbox.
3.5. You agree and acknowledge that You are solely responsible for the compliance of any Content, which incorporates Zen and/or ZenKit SDK and/or YAD Toolbox, with the requirements of the applicable law including those related to protection of personal data owners’ rights and Intellectual Property Rights.
3.6. You agree and acknowledge that Yandex and/or third parties (including, but not limited to, advertisers, DSPs, agencies) will have all required rights and licenses in respect to End User Data which Yandex collected via Zen and/or ZenKit SDK and/or YAD Toolbox within Your Content.
3.7. You agree and acknowledge that Yandex and/or respective third parties (including, but not limited to, advertisers, DSPs, agencies) have the right to serve and display advertisements within Zen and Apps Recommendations as incorporated in Your Content.
4. FEES AND PAYMENT
4.1. Fees. In consideration of the provision of the Services under this Agreement, Yandex shall pay You the fees as stipulated in the respective Services Order hereto and may be under the following commercial models as set forth in the respective Services Order.
4.1.1. Cost per Activation. The fee for the Services hereunder is calculated based on the number of Activations made by End Users during the respective Reporting Period.
4.1.2. Cost per Install. The fee for the Services hereunder is calculated based on the number of Installs made by End Users during the respective Reporting Period.
4.1.3. Revenue Share. The fee for the Services hereunder is calculated as a particular share of Revenue generated by Yandex during the respective Reporting Period.
No Guarantees. You hereby acknowledge and agree that the amount of Revenue depends on the activity of the End Users using Your Content and/or Devices, including, but not limited to their interaction with advertisements and/or Apps Recommendations. Therefore, Yandex gives no commitment nor guarantee of the volume of Revenue to be generated and/or Revenue Share payable to You under this Agreement.
For the purposes of the calculation of the Revenue Share due to You, the amounts of Revenue denominated in a currency other than the payment currency stipulated in the respective Services Order shall be converted into the payment currency stipulated in the respective Services Order using the exchange rate as of the last day of Reporting Period, as published by the European Central Bank at https://www.ecb.europa.eu, unless Service Order stipulates otherwise.
4.2. Reporting Period. A calendar quarter shall be the reporting period hereunder, unless Service Order stipulates otherwise.
4.3. Non-payable Periods. No fee for a Reporting Period shall be paid if no Revenue was generated and/or no Activations/Installs were made in such a Reporting Period. In this case the Services of Distributor hereunder shall be deemed as not provided in the given Reporting Period and no invoices shall be executed and payable.
4.4. Payment terms. Unless otherwise set out in the respective Services Order hereto, Yandex shall pay the fees within thirty (30) days following the receipt of an invoice for a corresponding Reporting Period issued by You in accordance with Yandex data available through its partner interface or provided in the relevant report, as the case may be. All settlements hereunder shall be made in currency stipulated in the respective Services Order by wire transfer from and to the bank account set forth in the respective Services Order.
4.5. Delivery and Reports. Yandex will, where possible, provide You with access to its partner interface, or, at its own discretion, with a report that contains statistics data on the scope of Services rendered by Distributor (“Report”) within 7 (seven) business days upon the end of each Reporting Period as of the Effective Date hereunder. You then shall within 5 (five) business days from the receipt of the Report issue an invoice to Yandex for the amount due in the Reporting Period in accordance with Yandex data.
4.6. Taxes. Each Party shall be individually responsible for paying taxes levied on it under applicable laws. The amounts set forth in the Agreement and/or Services Orders hereto include all taxes, fees and other payments collected in accordance with the laws of the Distributor’s country (if any). Yandex will transfer the amounts due in full without deduction of any taxes, fees or other payments in accordance with the laws of Yandex’s country.
4.7. You shall immediately notify Yandex on any changes in its registered and correspondence addresses, the legal status (including the form of incorporation) and/or banking details.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each Party hereto represents and warrants to the other Party that it has the full right and authority to enter into and perform its obligations under this Agreement. Each Party hereto further represents and warrants that the person who signs any Services Order and accepts this Agreement on its behalf is fully and completely authorized to do so and to bind and commit that Party to the terms and conditions of this Agreement. Each person who signs any Services Order and accepts this Agreement warrants and represents that he/she has been authorized to do so as set forth in the first sentence of this section.
5.2. Each Party hereto represents and warrants that entering into this Agreement shall not violate any other agreement and/or contract that they may have previously entered into and does not violate the rights of any third party. Each Party hereto also represents and warrants that they have the proper experience and expertise required in order to perform their obligations hereunder.
5.3. Each Party hereto represents and warrants that it shall not bind the other Party to any agreement or obligation or give any representation, warranty or guarantee on behalf of and in respect of the other Party, except for those that are specifically authorized by the other Party in advance and in writing.
5.4. Distributor represents and warrants that it owns, holds a proper license in, or otherwise has all necessary rights and permissions in and to use its Content, products, services, goods, Devices, web-sites, and software that are used for the provision of or in connection with the Services hereunder and that it shall be fully responsible for the same. Distributor further represents and warrants that its Content, products, services, goods, Devices, web-sites, and software that are used for the provision of or in connection with the Services hereunder are free from any infringement of trademark, copyright, patent, trade secret, proprietary information or other Intellectual Property Rights of any third party. Distributor also represents and warrants that its Content, products, services, goods, Devices, web-sites and software are not and/or do not contain viruses and other malicious software.
5.5. Distributor represents and warrants that it will not and will not permit any third party to, directly or indirectly: (i) generate queries, clicks and/or Installs/Activations and/or interactions within Apps Recommendations shown within any Yandex software, services, settings for browsers and other products included in the Distribution Pack, by any automated, deceptive, fraudulent or other invalid means; (ii) encourage or require End Users or any other persons, either with or without their knowledge, to click on such advertisements and/or to install/activate apps through offering methods that are manipulative, deceptive, malicious or fraudulent.
5.6. Yandex represents and warrants that it owns, holds a proper license in, or otherwise has all necessary rights and permissions in and to the materials and software that are provided to Distributor in the Distribution Pack for the provision of or in connection with the Services hereunder and that those materials and software, to the best of Yandex's knowledge, are not infringing upon any trademark, copyright, trade secret, or proprietary information of any third party. Distributor agrees and acknowledges that this representation and warranty does not extend to any material which is beyond Yandex's control, including, but not limited to, Web Content, and Yandex gives no warranties and assumes no obligations whatsoever with respect to such materials, including, but not limited to, Web Content.
5.7. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND WARRANTIES, NEITHER PARTY MAKES ANY OTHER WARRANTIES HEREUNDER, WHETHER EXPRESS, IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.8. DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT YANDEX PROVIDES NO WARRANTIES OF ANY NATURE TO OR BY ANY THIRD PARTY (INCLUDING ADVERTISERS, DSPS, AGENCIES) AND BEARS NO LIABILITY WITH RESPECT TO ADVERTISEMENTS AND/OR APPS RECOMMENDATIONS SERVED AND DISPLAYED IN ACCORDANCE WITH THIS AGREEMENT.
6.1. The Parties hereby agree and undertake to keep secret and deem as confidential the terms and existence of their relationship, including terms of any and all Services Orders concluded between them, as well as any and all information received by either Party from the other Party in the course of the performance of the Agreement and indicated by the Party providing such information as confidential (the “Confidential Information”), and not to disclose, make public, expose or provide such Confidential Information to any third party (except third parties subcontracted and/or engaged by Distributor as may be provided for in Services Orders hereto and bound by confidentiality obligations no less strict than the obligations of Distributor under this Agreement) in any other way unless the Party providing such information gives its prior written consent.
6.2. The Parties shall take all necessary measures to protect the Confidential Information at least to the same extent of diligence with which the Parties protect their own confidential information. The access to the Confidential Information shall be granted only to those employees of the Parties who reasonably need such access to fulfill their duties related to the performance of the Agreement. Each Party shall oblige such employees to assume obligations with respect to the Confidential Information no less strict than the obligations of such Party under this Agreement.
6.3. The Confidential Information shall at all times remain the property of the Party that provides such Confidential Information. No rights in any Party’s Confidential Information are granted to the other Party or are to be implied from the provisions of this Agreement save as expressly set out in this Agreement.
6.4. The obligation to protect and keep secret the Confidential Information shall not apply to information that:
6.4.1. at the time of the disclosure was or later came to be in public domain except cases when it happened in consequence of a violation committed by the receiving Party; or
6.4.2. becomes known to the receiving Party from a source other than the disclosing Party, provided that the receiving Party does not breach the provisions of this Agreement, which may be confirmed by documents that suffice to confirm that the source of such Confidential Information is a third party; or
6.4.3. has been known to the receiving Party prior to its disclosure under the Agreement, which is confirmed by documents that suffice to ascertain the fact of such prior possession of the Confidential Information; or
6.4.4. has been disclosed upon a request of a government/municipal body or agency in any legal or administrative proceedings under applicable law, provided that the Party required to make such disclosure notifies the other Party reasonably in advance; or
6.4.5. has been disclosed under written consent of the disclosing Party.
6.5. The obligation to keep the Confidential Information secret shall come into effect at the Effective Date and shall survive for 2 (two) years after any expiration or termination of this Agreement.
6.6. Without prejudice to other provisions of this section 6, Yandex may disclose information about the existence of the contractual relationship with You under this Agreement for advertising and marketing purposes from the time of the commencement of the provision of the Services under the Agreement. Announcements for mass media, press releases, public announcements and advertisements, and other communications relating to this Agreement, may be made by You upon getting prior written consent of Yandex.
6.7. Should a Party breach its confidentiality obligations hereunder, such Party shall be liable to the other Party in accordance with the applicable law and shall compensate all suffered damages to the other Party.
7. LIMITATION OF LIABILITY. INDEMNIFICATION
7.1. EXCEPT FOR SECTIONS 7.2 AND 7.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF DATA, LOST REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF THE OTHER PARTY (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
7.2. Yandex shall defend, indemnify and hold Distributor and and its respective employees, agents and contractors harmless from and against any and all losses, damages, costs and expenses (including without limitation reasonable legal fees and costs of proceedings) arising out of or related to any and all third-party actions, suits, claims and demands brought or made against Distributor and promptly notified to Yandex, alleging any infringement of any third party’s trademark, copyright, proprietary information or trade secret in or related to the materials and/or software provided by Yandex to Distributor in the Distribution Pack, except cases when such alleged infringement arises solely from (i) a breach of the Agreement by Distributor; or (ii) Web Content. In the event of a third-party action, suit, claim or demand as provided herein, Yandex shall assist Distributor in resolving such action, suit, claim or demand, as well as reimburse all evidenced losses, damages, costs and expenses (but not legal fees and costs of proceedings) arising out of or related to the same.
7.3. Distributor shall defend, indemnify and hold Yandex and members of Yandex Group, and their respective employees, agents and contractors harmless from and against any and all losses, damages, costs and expenses (including without limitation reasonable legal fees and costs of proceedings) arising out of or related to any and all third-party actions, suits, claims and demands brought or made against Yandex and promptly notified to Distributor, alleging any infringement of any third party’s trademark, copyright, patent or other Intellectual Property Right in or related to the Content, products, services, goods, Devices, web-sites, and software that are used by Distributor for the provision of or in connection with the Services hereunder, except cases when such alleged infringement arises solely from a breach of the Agreement by Yandex. In the event of a third-party action, suit, claim or demand as provided herein, Distributor shall assist Yandex in resolving such action, suit, claim or demand, as well as reimburse all losses, damages, costs and expenses (including without limitation reasonable legal fees and costs of proceedings) arising out of or related to the same.
7.4. In any case the liability of Yandex under this Agreement as well as indemnity for losses under any grounds shall be limited to the total amount of payments received by You from Yandex within the last 12 (twelve) calendar months preceding the grounds of liability.
8. GOVERNING LAW AND DISPUTE RESOLUTION
8.1. This Agreement shall be governed by and construed in accordance with the laws of Switzerland, without regard to its conflict of laws’ provisions.
8.2. Any claim or action by either Party against the other Party in connection with or related to this Agreement, its existence, validity, performance or termination, shall be brought before the competent courts located in the city of Lucerne, Switzerland, and the Parties hereby submit to the personal and subject matter jurisdiction of, and waive any venue objections against the named venue.
9. FORCE MAJEURE
9.1. The Parties shall be relieved of liabilities for full or partial nonperformance of their obligations under the Agreement if such nonperformance occurs after the Effective Date as a result of any flood, fire, earthquake and other acts of God, war, military hostilities, blockage, prohibitive actions of authorities and acts of the government agencies, strikes, destruction of communications and electric power supply, explosions which occur during the term of the Agreement and could not be foreseen or prevented by the Parties (each, an “Event of Force Majeure”).
9.2. Upon occurrence of an Event of Force Majeure, the Party affected by such an Event of Force Majeure shall within 5 (five) calendar days from the moment of the occurrence of the Event of Force Majeure, notify the other Party of the same in writing. The notice shall specify the nature of the Event of Force Majeure and shall contain a reference to an official document issued by a competent authority confirming the existence of such Event of Force Majeure and, if applicable, give an evaluation of its effect on the Party’s ability to perform its obligations under this Agreement.
9.3. If the Party affected by an Event of Force Majeure fails to send the notice stipulated by section 9.2 of the Agreement in due time, the Party shall have no right to refer to such Event of Force Majeure as an excuse for nonperformance of its obligations and, upon written request of the other Party, shall reimburse the other Party for any proven damages incurred by the other Party due to the effect of the Event of Force Majeure.
9.4. Upon occurrence of an Event of Force Majeure, the term for performance by the affected Party of the obligations under the Agreement shall be prolonged proportionally to the period of time during which the Event of Force Majeure and consequences thereof continue.
9.5. Upon the discontinuance of an Event of Force Majeure, the affected Party shall promptly notify the other Party of such discontinuance in writing. Such notice shall specify the period of time within which the Party expects to perform its obligations under the Agreement delayed due to the Event of Force Majeure. If the affected Party fails to send such notice in due time, such Party shall have no right to refer to the Event of Force Majeure as an excuse for nonperformance of its obligations and, upon written request of the other Party, shall reimburse the other Party for the losses incurred by the other Party in connection with the absence of timely notification and with the effect of the Event of Force Majeure.
9.6. Should an Event of Force Majeure continue for more than 1 (one) month, the Parties shall negotiate in good faith the future of the Agreement. If the Parties fail to reach agreement within 7 (seven) calendar days from the request by one of the Parties to commence negotiations, the Party not affected by the Event of Force Majeure may terminate the Agreement unilaterally by giving the other Party a written notice with immediate effect upon receipt.
10. TERM AND TERMINATION
10.1. This Agreement shall come into effect on the Effective Date and shall be in full force and effect as long as at least one Services Order hereto is in force and effect or unless earlier terminated in accordance with the terms below.
10.2. The Agreement may be terminated:
10.2.1. by the mutual agreement of the Parties;
10.2.2. unilaterally by either Party pursuant to section 9.6 hereof;
10.2.3. unilaterally by Yandex in case of a breach of the Agreement by You which has not been cured within a reasonable term but in any case no later than in 15 (fifteen) calendar days upon Yandex’s notification of such breach, by giving You a prior written notice with immediate effect upon receipt;
10.2.4. unilaterally by Yandex in case of a repeated (second or more) breach of the Agreement, including the terms of any Services Order hereto, by You upon Yandex's notification of such breach, by giving You a prior written notice with immediate effect upon receipt;
10.2.5. unilaterally by Yandex in case the amount of fees due to You for the last Reporting Period is less than 1 000 (one thousand) US Dollars/ 1 000 (one thousand) Euro (as applicable), by giving You a prior written notice with immediate effect upon receipt;
10.2.6. unilaterally by Yandex by giving You at least 30 (thirty) calendar days’ prior written notice for any reason whatsoever or without a reason;
10.2.7. in other cases stipulated in Services Orders hereto.
10.3. Termination or expiration of this Agreement shall not relieve either Party of its obligations accrued prior to the effective date of such termination or expiration, or of any liability arising from any breach of this Agreement, or from any payments due prior to the effective date of such termination or expiration. Sections 5, 6, 7, 8, 9, 11 and this section 10.3 shall survive expiration or termination of the Agreement.
10.4. Upon expiration or termination of this Agreement or the respective Services Order for any reason, the obligations of the Parties related to the provision of the Services under the respective Services Order and payment of the fee shall terminate, therefore Yandex shall not pay to Distributor for any Activation/Install made and/or Revenue received after the effective expiration or termination date and Distributor shall cease distributing the Distribution Pack.
11. GENERAL PROVISIONS
11.1. The Parties hereto have expressly agreed that this Agreement and related documents shall be written and interpreted in the English language. Any notices required or provided under this Agreement shall be in English. In the event of any conflict between the English version of this Agreement (or any notices) and a translation, the English version will prevail.
11.2. If any court of law having the jurisdiction to decide on this matter rules that any provision of this Agreement is invalid, then that provision shall be deemed removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
11.3. This Agreement (and its exhibits, attachments and addenda, if any) together with Services Order hereto set forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersede all prior agreements, understandings and negotiations with respect to the subject matter hereof.
11.4. Yandex may, from time to time, modify the terms of this Agreement by:
11.4.1. posting the revised agreement on its website and notifying You of the change by e-mail; or
11.4.2. notifying You of the change by e-mail and forwarding a copy of the revised Agreement to You electronically upon Your request; or
11.4.3. any other means reasonably deemed suitable to inform You of the terms of the revised Agreement; or
11.4.4. posting the revised agreement on its website.
Any terms of the Service Orders executed before the modified version comes into force that are in conflict with the terms of the modified Agreement shall prevail and take precedence over the conflicting terms of the modified Agreement, unless otherwise has been specifically agreed in writing with You upon publication of the relevant modifications to the Agreement.
11.5. A printed version of this Agreement, a facsimile copy of it and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
11.6. This Agreement may not be assigned or transferred by You without Yandex’s written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, Yandex may assign any of its rights and obligations under this Agreement, without the consent of You, to any person from Yandex Group. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns. This Agreement is not made for the benefit of any third party who is not a party hereto, and only the Parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of this Agreement.
11.7. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11.8. The companies of Yandex Group adhere to the principles and conditions of work set out in the YANDEX Code of Business Conduct and Ethics in all its activities. The companies of Yandex Group expect their contractors to abide by the principles of business conduct set out in the Code of Business Conduct and Ethics. A copy of the Code of Business Conduct and Ethics is available in the corporate section of the Yandex portal at http://ir.yandex.com/documents.cfm.
11.9. The Parties hereby acknowledge and confirm that they have adopted a policy of zero tolerance to bribery and corruption, envisaging a total ban of any corrupt practices and on any facilitation payments. During the performance of this Agreement the Parties, their affiliates, employees, stakeholders and representatives (including agents, commission agents, customs brokers and other third parties directly or indirectly involved in the performance of this Agreement) shall not accept, pay, offer to pay and allow (authorize) the payment/acceptance of any funds or transfer of any assets (including intangible assets), directly or indirectly, to/from any persons for the purpose of influencing the actions or decisions with the intention to obtain any improper advantage, including bypassing the procedure established by the legislation, or pursuing other illegal purposes.
11.10. For the purpose of implementing provisions of this Agreement the Parties shall comply, use and carry out their activity in accordance with the following national and international legal acts:
Basic principles of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
The Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.).
11.11. If a Party presumes that a breach of any provisions of this Agreement has occurred or may occur, the relevant Party shall give the other Party a written notification of that fact.
11.12. Notice by either Party under this Agreement shall be in writing and personally delivered or given by registered mail, return receipt requested, overnight courier, telecopy or e-mail confirmed by certified mail, addressed to the other Party at its address given below (or any such other address as may be communicated to the notifying Party in writing) and shall be deemed to have been served if delivered in person, on the same day; if sent by telecopy or via e-mail, twenty four (24) hours after transmission; if sent by registered mail, ten (10) days after deposit into the mail system, or if sent by overnight courier, the second (2) day after deposit with the courier.
General Distribution Policies
Disallowed Distribution, Traffic and Query Generation Behavior.
The following provides a non-exhaustive list of disallowed distribution, traffic and query generation behavior, Distributor will not, and will not authorize any third party to engage in the following (any of which may constitute a Traffic Quality Issue):
Masking or altering of any part of the ad call or user’s browser information, including the original user agent, user’s IP address, referring URL, serve URL;
Clicks, queries, or impressions generated by any automated or fraudulent method, including purchasing of fraudulent or automated traffic, manipulating an End User’s intended action, or acquisition of traffic through the use of malware;
Clicks, queries, or impressions generated by:
Compensating, incenting, inducing, requiring, or encouraging End Users to Click on ads, including items such as the following:
Paid to Click or paid to read schemes;
Generating a Click, query, or impression when that was not the user’s intent (where the user’s action is transformed into an unintended or unknowing Click, query, or impression).
Note: Programs incenting an end user to use Distribution Pack are permissible; the issue is with an incented Click on an ad.
Unauthorized delivery/syndication of ad links, queries, ad impressions, or ad Clicks;
Reordering, stripping, blocking, or filtering ads;
Redirecting End Users to another URL without a direct click by the User (except with respect to redirection to DNS sites: (i) for legal, non-deceptive and non-malicious purposes or (ii) that do not drive invalid clickthroughs);
Blocking traffic from being delivered to search results, advertisers, etc;
Ad implementations that differ materially from those permitted by Yandex policy;
Intentionally providing false information to Yandex (false implementation information, false ad call information (including false serve URL or overwriting the referrer URL), false names, contact info, etc);
Generating false conversions, meaning installs that don’t generate user activities.
Previous version of the document: https://yandex.com/legal/distribution_terms/04042017.
Previous version of the document: https://yandex.com/legal/distribution_terms/16052016.