YANDEX.STORE CLIENT SOFTWARE LICENSE AGREEMENT
This Yandex.Store Client Software License Agreement (the “Agreement”) is entered into by and between:
Yandex Europe AG, a company organized and existing under the laws of Switzerland with its registered address at Werftestrasse 4, 6005 Luzern, Switzerland ("Yandex"); and YOU, being any person or company that has agreed to the terms and conditions of this Agreement and/or uses the Client Software under this Agreement (“You” or “Licensee”); hereinafter referred to collectively as “Parties” and individually as a “Party”.
This Agreement sets forth the terms and conditions applicable to the licensing relationship between Yandex and You regarding Your use of the Client Software (as defined herein).
1.1. “Affiliate” means, with respect to each Party, any entity which directly or indirectly controls, is controlled by or is under common control with such Party; where “controls”, “controlled” or “control” means power to direct or cause the direction of the management or policies of an entity whether through the ownership of securities, by contract or otherwise, including but not limited to ownership of or control over more than 50% (fifty percent) of the voting power in a legal entity.
1.2. “Client Software” means the client-side mobile software of the Yandex App Store owned by Yandex, including the inlying user interface and design elements.
1.3. “Content” means those software programs (applications, games, etc.), and other mobile content (as the case may be) which is or may be made available to End Users through the Yandex App Store.
1.4. “Device” means any mobile device (smartphone, tablet, etc.) on which You choose to use the Client Software.
1.5. “End User” means any individual user who accesses the Content for customary personal use purposes (i.e. not for resale, redistribution or other types of non-personal use).
1.6. “Licensor” means a third-party developer or other licensor of Content who makes the Content available through the Yandex App Store and on behalf of whom Yandex acts as an agent, sub-agent, distributor or in other similar capacity with regard to such Content.
1.7. “Yandex App Store” means the mobile application store site (platform) which is owned and operated by Yandex and where Content is made available to End Users.
2. YOUR USE OF THE CLIENT SOFTWARE
2.1. Yandex hereby grants You a non-exclusive, revocable, royalty-free, worldwide license for the effective term of this Agreement to copy, reproduce, distribute, publicly display, make publicly available, import, export the Client Software for the purposes of (i) pre-installing and making the Client Software available for End Users on Devices (in any case, free of charge to the End User); and (ii) distributing the Client Software to End Users online via Your website free of charge.
2.2. You may obtain a copy of the Client Software by downloading via Yandex’s or its Affiliates’ websites (http://yandex.ru, http://yandex.com, etc.). Any copy obtained otherwise shall not be considered covered by this Agreement.
2.3. Any and all right, title and interest in the Client Software, including all intellectual property rights therein, are retained by Yandex. All rights in the Client Software not expressly granted to You hereunder are reserved. You shall not in any event (i) modify, adapt, translate, or prepare derivative works from the Client Software; (ii) decompile, disassemble, reverse engineer, disassemble or otherwise use attempt to derive source code from the Client Software; (iii) remove, deface, obscure, or alter Licensor’s and/or third parties’ copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Client Software; (iv) “crawl”, “spider”, index or in any non-transitory manner store or cache information obtained from the Client Software; (v) transfer, license, sub-license, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding the Client Software, any copy thereof or any right granted to You therein to any third party; (vi) copy, distribute or otherwise use the Client Software except as expressly allowed herein; (vii) engage in any action or practice that reflects poorly on Yandex, its Affiliates or any Licensor or otherwise disparages or devalues Yandex’s, its Affiliates’ or any Licensor’s reputation or goodwill, including but not limited to distribute or make the Client Software available together with, or in a manner that would reasonably allow an End User to associate them with, any content that is explicit, obscene, offensive or prohibited under any applicable law.
2.4. Yandex App Store shall be operated by Yandex. Yandex shall be solely responsible for the relationships with Licensors and its other principals; without limitation of the foregoing, Yandex shall have sole control over (i) accepting or rejecting Content submitted by Licensors or on their behalf to the Yandex App Store or removing such Content from the Yandex App Store; (ii) processing and receiving payments of any Licensors’ fees made by the End Users for Content available through the Yandex App Store; (iii) processing any End User information disclosed to Yandex through or in connection with the Client Software; (iv) providing technical support to End Users with respect to the Yandex App Store. Any and all right, title and interest in the Content, including all intellectual property rights therein, are retained by its respective Licensors. Nothing in this Agreement shall be construed as a grant or permission to the You to use any Content in any manner. You shall not, and shall not attempt to, remove, efface or obscure any end user license agreement or any other legal information, or any copyright or other proprietary notices or legends from the Content.
2.5. Any and all right, title and interest in each Party’s trademarks, trade names and logos are retained by the respective Party.
3. REPRESENTATIONS AND WARRANTIES
3.1. Each Party warrants and represents to the other that: (i) it will comply with all applicable statutes, rules, orders, ordinances and regulations of governmental and judicial authorities applicable to the performance of its duties and obligations under this Agreement; (ii) there are no restrictions that would impair its ability to perform its obligations under this Agreement; (iii) it has not and will not enter into any agreement inconsistent with its obligations under this Agreement; and (iv) its entry into and performance of its obligations under this Agreement does not and will not cause it to be in breach of any obligations to any third party.
3.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YANDEX MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE CONTENT OR OTHERWISE, EXPRESSED OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL SUCH WARRANTIES AND REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
3.3. EXCEPT FOR DAMAGES ARISING FROM YOUR MISAPPROPRIATION OR INFRINGEMENT OF YANDEX’S OR ANY LICENSOR’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING ANY INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER A PARTY WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER REGARDING ANY AND ALL CLAIMS AND CAUSES OF ACTION EXCEED AN AMOUNT OF USD 100 (ONE HUNDRED US DOLLARS). NOTWITHSTANDING THE FOREGOING, OR ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY APPLY TO LIABILITIES THAT CANNOT BE LIMITED BY LAW.
3.4. THE CLIENT SOFTWARE IS PROVIDED “AS IS”. TO THE EXTENT PERMITTED BY LAW, YANDEX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE CLIENT SOFTWARE AND ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ACCURACY AND SECURITY. YANDEX DOES NOT WARRANT THAT YOUR USE OR OPERATION OF THE CLIENT SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SECURITY MECHANISMS INCLUDED IN OR WITH OR IMPLEMENTED BY THE CLIENT SOFTWARE WILL NOT HAVE INHERENT LIMITATIONS, OR THAT THE CLIENT SOFTWARE WILL SUFFICIENTLY MEET YOUR EXPECTATIONS OR REQUIREMENTS.
4. TERM AND TERMINATION
4.1. This Agreement shall commence and become effective on the date of Your electronic acceptance of this Agreement (as described below) and shall remain in effect until terminated as provided in this Section 4.
4.2. In the event of any material breach or default under the terms of this Agreement by either Party, the other Party shall have the right to terminate this Agreement upon giving a seven (7) days’ prior written notice of termination to the defaulting party unless the defaulting party cures the breach or default within the specified period.
4.3. Either party may terminate this Agreement for any reason or without reason and at any time by giving the other party a thirty (30) days’ prior written notice.
4.4. Upon any termination of this Agreement: (i) You shall cease using the Client Software in any way; provided, however, that You and any of Your distributors, wholesalers, contractors, retailers or End Users may continue to use any copies of the Client Software made available to them during the effective term of this Agreement (including on any Devices); (ii) all licenses in any Content provided to End Users via the Client Software shall survive according to their terms; and (iii) Sections 3, 4.4, 5 and 6 of this Agreement shall survive.
5. GOVERNING LAW AND DISPUTE RESOLUTION
5.1. This Agreement is governed exclusively by the laws of Switzerland, without regard to the principles of conflict of laws and expressly excluding the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980 (both to the direct application of this convention and in case the convention, based on any applicable law, represents substantive Swiss law). Any dispute, controversy or claim arising out of, or in relation to, this Agreement, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with said Rules. The number of arbitrators shall be three. The seat of the arbitration shall be Lucern, Switzreland. The arbitral proceedings shall be conducted in English. The parties acknowledge and agree that any unauthorized use of a Party’s intellectual property would cause such Party irreparable harm for which monetary damages would be inadequate. In the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies.
6.1. Any failure or delay by a Party in performing any duty, obligation or covenant under this Agreement shall not constitute a breach or default by such Party to the extent and for so long as such failure or delay is caused by or results from or in connection with any cause or event beyond the reasonable control of the such Party, including any act of God, fire, flood, epidemic, quarantine restriction, war, riot, breakdown, interruption in power, governmental regulation or action, or order of any court or governmental body; provided however, that strikes, lock out, lack of raw materials, work stoppage, labor trouble and other industrial disturbances all to the extent specific to such Party are expressly excluded and provided further that such Party promptly notifies the other Party of such event and uses its best efforts to correct the failure or delay caused by such event.
6.2. Neither Party may assign or delegate any rights or duties under this Agreement without the other Party's prior written consent; provided, however, that Yandex may assign this Agreement as a whole to (i) a Yandex’s Affiliate; or (ii) a third party entity acquiring Yandex (whether as a result of an acquisition, sale of all or substantially all of Yandex’s assets, merger, or otherwise), which third party agrees to assume all of Yandex’s obligations hereunder. Any purported assignment not expressly permitted by the foregoing shall be void. This Agreement shall be binding on, inure to the benefit of and be enforceable by and against the successors and permitted assigns of the Parties.
6.3. If any provision of this Agreement is found to be illegal, invalid or unenforceable in any respect, it shall not affect any other provision, and the balance of the Agreement shall continue in full force and effect.
6.4. 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.
6.5. All notices under or relating to this Agreement may be sent by e-mail or by registered mail to any address the Parties may designate in writing (including but not limited to any address You provide electronically to Yandex) and shall be deemed effective upon receipt.
6.6. Yandex may, from time to time, modify the terms of this Agreement by (i) posting the revised agreement on its website and notifying You of the change by e-mail; or (ii) notifying You of the change by e-mail and forwarding a copy of the revised Agreement to You electronically upon Your request; or (iii) any other means reasonably deemed suitable to inform You of the terms of the revised Agreement.
6.7. 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.
6.8. 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.
BY SUBMITTING YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON “ACCEPT” OR OTHER BUTTONS PROMPTING YOU TO ACCEPT THIS AGREEMENT ON THE RELEVANT WEBPAGE, BEGINNING TO USE THE CLIENT SOFTWARE FOR ANY PURPOSES OR IN ANY WAY PROVIDED HEREIN AND/OR BY REPLYING “I AGREE” TO THE EMAIL WITH THIS AGREEMENT, 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 THE LICENSEE OR AN AUTHORIZED OR LEGAL REPRESENTATIVE OF THE LICENSEE, AND HAVE THE POWER AND AUTHORITY TO BIND THE LICENSEE TO THIS AGREEMENT AND ENTER INTO THIS AGREEMENT ON ITS BEHALF; AND (II) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND/OR HAVE CAUSED THE LICENSEE TO DO SO.