1. DEFINITIONS AND INTERPRETATION
1.1. In these General Terms the following capitalised words and expressions shall have the following meanings:
1.1.1. ‘Affiliate’ shall mean means in relation to any person, any other person directly or indirectly Controlled by, or Controlling of, or under common Control with, that person.
1.1.2. ‘Agreement’ shall mean an agreement entered into by and between Yango and the Counterparty into which agreement these General Terms are incorporated by reference and constitute an integral part of such agreement. The Agreement may change, disapply, and (or) supplement any provisions of the General Terms.
1.1.3. ‘Code of Business Ethics and Conduct’ shall mean Yandex’s Code of Business Ethics and Conduct as available at https://ir.yandex/corporate-governance/.
1.1.4. ‘Confidential Information’ shall mean without limitation organisational, technological, commercial, financial, and any other information and data associated with or related to the conclusion and performance of the Agreement by the Parties. For the avoidance of doubt: information contained in the Requests and the contents of the Agreement constitute the Confidential Information, and the fact of the existence of the Agreement does not constitute the Confidential Information.
1.1.5. ‘Contractual Framework Agreement’ shall mean the Contractual Framework Agreement entered into by and between Yango and the Counterparty.
1.1.6. ‘Control’ shall mean with regard to a person the power or authority, whether exercised or not, to direct the business, management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the voting of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such person or power to control the composition of a majority of board of directors of such person. The terms ‘Controlled’ and ‘Controlling’ have meanings correlative to the foregoing.
1.1.7. ‘Counterparty Account’ shall mean a part of the Service available to the Counterparty at https://lk.taximeter.yandex.ru after authorization using the Counterparty’s login and password, which [part] includes without limitation interaction with the Service and the Statistical Data.
1.1.8. ‘Country Law’ shall mean all laws (including, as the case may be, common law and civil codes), regulations, directives, statutes, subordinate legislation, all judgments, orders, notices, instructions, decisions and awards of any competent Governmental Authority and all codes of practice having force of law, statutory guidance and policy notes, in each case to the extent applicable to the Parties or any of them, or as the context requires existed at the relevant time in the Country.
1.1.9. ‘Country Terms’ shall mean a document which bears in its title expression ‘Country Terms’ and the most recent version of which is available on-line at the Counterparty Account. The Country Terms may change, disapply, and (or) supplement any provisions of the Agreement and the General Terms.
1.1.10. ‘Data Processing Agreement’ shall mean the agreement as available at https://yandex.com/legal/yandextaxi_dpa/ that is deemed to be incorporated into the Agreement by reference .
1.1.11. ‘Dispute’ shall have the meaning attached to this term in Clause 8.2.1 of the General Terms.
1.1.12. ‘Dispute Notice’ shall have the meaning attached to this term in Clause 8.2.3 of the General Terms.
1.1.13. ‘Driver’ shall mean either of:
(a) an individual who (i) has signed or otherwise became a party to either an employment or other contract with the Counterparty or any third party, or Yango has grounds to believe that such contractual relations exist, and (ii) has all licences and (or) permissions as required by the Country Law to drive the Vehicle and perform the Transfer, and (iii) actually capable of driving the Vehicle at the relevant time, or
(b) the Counterparty if the Counterparty is an individual who (i) has an entrepreneur, sole trade or an equivalent legal status, and (ii) has all licences and (or) permissions as required by the Country Law to drive the Vehicle and perform the Transfer, and (iii) actually capable of driving the Vehicle at the relevant time.
If an individual ceases, for any reason and regardless the Counterparty’s fault, to satisfy the criteria of the Driver (including without limitation does not have a valid driving licence or does not comply with the Country Law) but continues to render the Transfer services or use the Service, such individual shall for all purposes be deemed to be the Driver.1.1.14. ‘E-Platform’ shall have the meaning attached to this term in the Contractual Framework Agreement.
1.1.15. ‘E-Service Agreement’ shall mean the E-Service Agreement entered into by and between Yango and the Counterparty.
1.1.16. ‘Effective Date’ shall mean the date of the Agreement either determined pursuant to the electronic records of the Service or stated on its first page. In case of discrepancies between the date recorded in the electronic records of the Service and the date stated on the first page of the Agreement, the date recorded in the electronic records of the Service shall prevail and be deemed as the only true effective date of the Agreement.
1.1.17. ‘Electronic Notice’ shall mean an electronic communication by any of the following means:
(a) via the Counterparty Account,
(b) to a Party’s e-mail address specified in the Counterparty Account,
(c) to a Party’s e-mail address specified in the Agreement,
(d) when the communication from Yango to the Counterparty is concerned, by publication at yango.yandex.com or yandex.com/legal/, or
(e) when the communication from Yango to the Counterparty is concerned, to the Counterparty’s or the Counterparty’s duly authorised representative’s e-mail address which the Counterparty or its relevant representative has previously used for a communication with Yango.
1.1.18. ‘Event of Force Majeure’ shall have the meaning attached to this term in Clause 6.6 of the General Terms.
1.1.19. ‘General Terms’ shall mean these General Terms containing various terms, rights, and duties of the Parties in addition to those contained in the Agreement.
1.1.21. ‘Governmental Authority’ shall mean any government or state and any ministry, department or political subdivision thereof, and any person exercising executive, judicial, regulatory or administrative functions of, or pertaining to, government (including any independent regulator) or any other governmental entity, instrumentality, agency, authority, corporation, committee or commission under the direct or indirect control of a government, and for the avoidance of doubt includes any court or competent authority or tribunal. The references to a competent Governmental Authority shall mean a Governmental Authority that has jurisdiction over a Party or matter concerned.
1.1.21. ‘Law’ shall mean all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any competent Governmental Authority and all codes of practice having force of law, statutory guidance and policy notes, in each case to the extent applicable to the Parties or any of them, as the context requires, existed at the relevant time in the Netherlands.
1.1.22. ‘Party’ shall mean either Yango or the Counterparty.
1.1.23. ‘Parties’ shall mean jointly Yango and the Counterparty.
1.1.24. ‘Personal Details’ shall mean the any of following details of an individual:
(a) phone number;
(b) e-mail address;
(c) travel routes; and
(d) other personal data as defined by the Data Processing Agreement and (or) the Country Law.
1.1.25. ‘Reporting Period’ shall mean a period of time which starts on the first day and ends on the last day of the relevant calendar month. Provided that the first Reporting Period shall be a period of time from the Effective Date until the last day of a relevant calendar month, and the last Reporting Period shall be a period of time from the first day of the relevant calendar month until the date of expiration, repudiation, or termination of the Agreement.
1.1.26. ‘Request’ shall mean the information on a potential demand for the Transfer that is submitted by a User via the Service.
1.1.27. ‘Statistical Data’ shall mean Yango’s automated systems data, which may contain without limitation data for the calculation of the cost of the Service Fee and any other data relating to the performance of the Agreement, is available at the Counterparty Account.
1.1.28. ‘Supervision’ shall mean Yango’s activity which objective is to evaluate whether the Counterparty complies with the terms and conditions of the Agreement. The Supervision may include various activities as Yango considers necessary and appropriate.
1.1.29. ‘Transfer’ shall mean (i) transportation of passengers and (or) baggage and (ii) provision of services related to such transportation (if any).
1.1.30. ‘User’ shall mean an individual who has unconditionally accepted the terms and conditions of either:
(b) the Licence Agreement for the Service application for mobile devices available at https://yandex.com/legal/yango_mobile_agreement/.
1.1.31. ‘Vehicle’ shall mean a motor vehicle used by the Driver for the Transfer.
1.1.32. ‘Written Notice’ shall mean a communication in writing that include any modes of reproducing words in any legible form (but shall not include any electronic communication, including the modes of communication specified for the Electronic Notice) that is addressed to a relevant postal address of a Party specified in the Agreement and delivered by registered mail with delivery confirmation via a courier service.
1.2. Capitalised words and expressions that are not defined in these General Terms, shall have meanings attached to them in the Agreement, the E-Service Agreement, or in the Country Terms, as the case may be, and in the absence of such meaning the provisions of Clause 1.3.17 of the General Terms shall apply.
1.3. The following principles shall be used for the interpretation of the Agreement:
1.3.1. if there is any controversy or discrepancy between the Agreement and the General Terms, the provisions of the Agreement shall prevail.
1.3.2. if there is any controversy or discrepancy between the Agreement and the Country Terms, the provisions of the Country Terms shall prevail.
1.3.3. if there is any controversy or discrepancy between the General Terms and the Country Terms, the provisions of the Country Terms shall prevail.
1.3.4. any reference to the Agreement includes:
(a) the General Terms;
(b) the Country Terms,
(c) the Data Processing Agreement; and
(d) amendments, schedules, supplements, annexes duly executed by the Parties as provided for in the Agreement,
which jointly form an integral part of the Agreement for all purposes.
1.3.5. references to the Agreement shall be construed as references also to any separate or independent stipulation or agreement contained therein;
1.3.6. any headings and titles in the Agreement are for convenience only and shall not affect its interpretation;
1.3.7. references to any document (including the Agreement) or a provision of any document includes such document or provision thereof as amended or supplemented in accordance with its terms, and whether or not such other document or provisions thereof is or becomes ineffective for any reason;
1.3.8. unless expressly provided for to the contrary in herein, words in the singular shall include the plural and vice versa, and references to one gender include other genders;
1.3.9. a reference to a ‘person’ shall include a reference to any individual, firm, company or other body corporate, an individual's executors or administrators, Governmental Authority, unincorporated association, trust or partnership (whether or not having separate legal personality), and shall include a Party’s Affiliate but shall not include a reference to the Parties and their respective employees and officers;
1.3.10. a reference to a particular ‘person’ shall include a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation);
1.3.11. a reference to a Section, Clause, or paragraph shall be a reference to a section, clause, or paragraph of, as the case may be, either the Agreement, or the General Terms, or the Country Terms, unless otherwise expressly provided for herein.
1.3.12. if a period is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day, unless otherwise specified;
1.3.13. references to any Dutch legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than the Netherlands be deemed to include what most nearly approximates the Dutch legal term in that jurisdiction and references to Dutch statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction;
1.3.14. references to ‘writing’, ‘written’ and similar expressions shall include any modes of reproducing words in any legible form on paper (for the avoidance of doubt: this shall not include any electronic communication, including e-mail, attachments to e-mail, fax, telefax, the modes of communication specified for the Electronic Notice);
1.3.15. except where the context otherwise requires, a reference to time or the time of any day is to the Country’s time (at the location of its capital) on the relevant date and events stated or deemed to occur upon, or actions required to be performed by, any given date shall be deemed to occur at, or must be performed before, 11:59:59 pm;
1.3.16. if a Party ‘may’ or has a ‘right’ to perform an action or activity, or to refrain from performing an action or activity, then such Party has a full unrestricted discretion to perform or refrain from performing the relevant action or activity and it does not have a duty to seek for a consent of, or to inform, the other Party thereof.
1.3.17. if any term or expression, whether capitalised or not, is not defined in these General Terms, the Country Terms and the Agreement, and its meaning cannot be ascertained from the generally accepted plain meaning of this term or expression in the English language, the following sources shall be used in the following order to ascertain its meaning:
(a) the meaning of a relevant provision of the Agreement interpreted in a way that favours Yango,
(b) the general context of the Agreement,
(c) the legislation and court practice of the Netherlands.
2. GENERAL PROVISIONS
2.1. These General Terms apply the Agreement.
2.2. By entering into the Agreement, the Counterparty consents to be bound by the General Terms without any additional formalities (including without limitation without signing the General Terms or receiving a printed copy of the General Terms).
2.3. Yango may amend the General Terms when considers necessary without the Counterparty’s consent and, notwithstanding anything to the contrary, such amended General Terms shall be binding on the Counterparty when they are made available via an Electronic Notice.
3.1. Yango may conduct Supervision at any time and unlimited number of times without any particular reason and may choose any means and methods of the Supervision.
3.2. The information and data obtained in a course of the Supervision shall not constitute the exclusive source for evaluation whether the Counterparty complies with the terms and conditions established by the Agreement, and Yango may use any other information and data to make such evaluation.
3.3. The Counterparty shall timely, actively, and diligently assist Yango with anything that may be necessary to conduct the Supervision. The Counterparty’s failure to provide such assistance shall considered as a material breach of the Agreement.
4. GUARANTEES AND WARRANTIES
4.1. Each Party guarantees and warrants to each other Party that each of the below listed guarantees and warranties are true, accurate, and not misleading in respect of itself at the Effective Date:
4.1.1. a Party is duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of the Agreement;
4.1.2. a Party has, directly or indirectly, corporate power and authority to enter into and perform the Agreement and any agreement entered into pursuant to the terms of the Agreement and the provisions of the Agreement and any agreement entered into pursuant to the terms of the Agreement, constitute valid and binding obligations on it and are enforceable against it, in accordance with their respective terms; and
4.1.3. a Party has duly authorised and accepted the Agreement in its entirety and will, when required, have authorised, accepted, executed and delivered, as the case may be, any agreements to be entered into pursuant to the terms of the Agreement.
4.2. The Counterparty also guarantees and warrants to Yango that each of the below listed guarantees and warranties are true, accurate, and not misleading in respect of itself at the Effective Date:
4.2.1. the acceptance by the Counterparty of, and the performance by the Counterparty of its obligations under the Agreement will not:
(a) if the Counterparty is not an individual, result in a breach of or conflict with any provision of its constitutional documents,
(b) result in a material breach of, or constitute a material default under, any instrument to which it is a party or by which it is bound, or
(c) result in a breach of the Country Law;
4.2.2. all consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Counterparty which are necessary or desirable for it to obtain in order to enter into and perform the Agreement and any agreement entered into pursuant to the terms of the Agreement in accordance with its terms, have been unconditionally obtained in writing; and
4.2.3. no order has been made, petition presented or meeting convened for the winding up of the Counterparty or any of its Affiliates, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in the Country) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in the Country, and no events have occurred which, under applicable law of a relevant jurisdiction, would justify any such proceedings.
4.3. Save for the guarantees and warranties expressly stated in Clause 4.1 of the General Terms, Yango provides no other express or implied guarantees and warranties and expressly disclaims any other guarantees, warranties, and provisions.
5. ANNOUNCEMENTS AND CONFIDENTIALITY
5.1.1. Unless otherwise expressly provided for in Clause 5.1.2 of the General Terms, neither Party shall (and each Party shall procure than none of its Affiliates shall):
(a) make or send; or
(b) permit another person to make or send on its behalf,
a publication, public announcement, or circular regarding the existence or the subject matter of the Agreement, the details of relations of the Parties.
5.1.2. Clause 5.1.1 of the General Terms does not apply to a publication, announcement, or circular:
(a) which is required by the Law or the Country Law, a court of competent jurisdiction or a competent judicial, governmental, supervisory or regulatory body;
(b) which is required by a rule of a stock exchange or listing authority on which the shares or other securities of a Party or its Affiliate are listed or traded; or
(c) in regard to which a Party has obtained the other Party’s prior written permission.
5.1.3. If the Counterparty is required to make or send a publication, announcement, or circular in the circumstances contemplated by Clause 5.1.2(a) or Clause 5.1.2(b) of the General Terms, it shall, before making or sending the publication, announcement, or circular, consult with Yango and take into account Yango’s requirements as to the timing, content and manner of making the publication, announcement, or circular to the extent it is permitted to do so by the Law or the Country Law and to the extent it is reasonably practicable to do so.
5.2.1. Save as provided in Clause 5.2.2 of the General Terms, no Party shall, without the written consent of the other Party, disclose to any person, or use or exploit commercially for its own purposes any Confidential Information.
5.2.2. Subject to Clause 5.2.3 of the General Terms, Clause 5.2.1 of the General Terms does not apply to a disclosure or use of the Confidential Information in the following circumstances:
(a) the disclosure or use is required by the Law or the Country Law or required or requested by a competent Governmental Authority;
(b) the disclosure or use is required by a rule of a stock exchange or listing authority on which the shares or other securities of a Party or its Affiliate are listed or traded;
(c) to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of the Agreement by any Party;
(d) the Confidential Information has been disclosed to such Party by a person who is not in breach of any undertaking or duty as to confidentiality whether express or implied;
(e) the disclosure or use is required for the purpose of legal proceedings arising out of or in connection with the Agreement;
(f) the disclosure is made to a professional adviser of the disclosing Party, in which case the disclosing Party is responsible for ensuring that the professional adviser complies with the terms of Section 5 as if it were a party to the Agreement;
(g) the disclosure by means of references to the Counterparty as a user of the Service in Yango’s informational, promotional, or advertising materials;
(h) the disclosure to or use by Yango’s Affiliates (which includes without limitation the information and data provided by the Counterparty to Yango via or collected by Yango by means of the Service, such as the data on the Vehicles’ location (GPS tracking data));
(i) the disclosure by Yango is required to react to or otherwise deal with any person’s accusations, claims, publications, requests, and (or) statements including without limitation those related to the Parties and their relations;
(j) the disclosure is required in the circumstances provided for in the Agreement.
5.2.3. If the Counterparty is required to make a disclosure in the circumstances contemplated by Clauses 5.2.2(a), 5.2.2(b), or 5.2.2(e) of the General Terms, it shall, before making such disclosure, to the extent it is permitted to do so by Law or the Country Law and to the extent it is reasonably practicable to do so, notify Yango of such disclosure and consult with Yango and take into account Yango’s requirements as to the timing, content, and manner of making the disclosure (except for disclosure for legal or regulatory reasons where the disclosure is made to a regulatory body only in the ordinary course of its supervisory function).
5.2.4. If a Party has, whether intentionally, unintentionally, or otherwise, disclosed the Confidential Information in the circumstances when it has not been permitted to do it pursuant to the Agreement, that Party shall pay to the other Party actual damages sustained by damages sustained by that other Party for each instance of such non-permitted disclosure within ten (10) calendar days upon the receipt of a Written Notice from the other Party.
5.3. The obligations of the Parties under this Section 5 shall be in full force and effect during the term of the Agreement and continue for a period of three (3) years from the date of termination of the Agreement.
6. LIABILITY OF THE PARTIES
6.1. Unless expressly provided for to the contrary in herein, Yango shall not be held liable to the Counterparty, its Affiliates, and (or) its clients (contractors, partners, users, and other persons) for any indirect and (or) consequential loss or damage (whether for loss of profit, loss of business, loss of information, loss of production and (or) business, or otherwise), costs, expenses, or other claims for consequential compensation whatsoever (howsoever caused), regardless of whether or not the Counterparty could have foreseen the possibility of such loss or damage in a particular set of circumstances, and regardless weather or not Yango acted with intent, gross negligence, negligence, or innocently, which [loss, damage etc] arise out of, or in connection with, the Agreement.
6.2. If the Counterparty fails to comply with any terms and conditions of the Agreement and (or) the Country Law, Yango may without incurring any liability to the Counterparty and (or) any person:
6.2.1. immediately, without notice, suspend or terminate the Counterparty’s access to the Service, or any part thereof, until the Counterparty has fully remedied any incompliance to the satisfaction of Yango; and (or)
6.2.2. terminate the Agreement upon a Written Notice by Yango to the Counterparty with an immediate effect upon postage.
6.3. The Counterparty agrees and acknowledges that Yango shall not be liable or otherwise responsible for any damage, losses, and expenses, which, directly or indirectly, resulted from, related to, or connected with (without limitation):
6.3.1. the Counterparty’s intentional, negligent, or innocent non-performance or improper performance of any of its duties under the Agreement, the Law, and (or) the Country Law; and (or)
6.3.2. the circumstances as provided for in the Agreement.
6.4. Notwithstanding anything to the contrary herein (including without limitation Clause 6.1 of the General Terms), the Counterparty shall indemnify and hold harmless Yango, its Affiliates, employees, directors, officers, and agents for any liability, damage, losses, and expenses, which, directly or indirectly, resulted from, related to, or connected with (without limitation):
6.4.1. the Counterparty’s intentional, negligent, or innocent non-performance or improper performance of any of its duties under the Agreement, the Law, and (or) the Country Law. The Counterparty shall, among other things, at its own expense use all efforts to settle amicably any claims, complaints, and (or) actions that have been threatened to be submitted or have been submitted against Yango; however, this does not preclude Yango from settling of and (or) defending itself from any such claims, complaints, and (or) actions; and (or)
6.4.2. the circumstances as provided for in the Agreement.
6.5. The Counterparty shall, within ten (10) calendar days from the receipt of a Written Notice from Yango, reimburse to Yango any amounts of liability, damage, loss, and expenses, as listed in such Written Notice, that have been sustained by Yango in the circumstances described in Clause 6.4 of the General Terms. The Counterparty expressly waives any right to (i) challenge, legally or otherwise, the content of the Written Notice and (ii) request any proof or evidence of the existence or the extent of liability, damage, loss, and expenses sustained by Yango and any other facts mentioned in the Written Notice. If the Counterparty has, whether intentionally, unintentionally, or otherwise, not complied with the provisions of this Clause 6.5 of the General Terms in any respects, then the Counterparty shall pay to Yango a penalty as provided for in the Country Terms.
6.6. The Parties shall be relieved of liabilities for full or partial non-performance or improper performance of their obligations under the Agreement if such non-performance or improper performance 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 Governmental Authority, strikes, disturbance of communications or electric power supply, explosions which occur during the term of the Agreement and could not reasonably be foreseen or prevented by the Parties (each, an ‘Event of Force Majeure’).
6.7. The Party affected by an Event of Force Majeure shall notify the other Party about such Event of Force Majeure by an Electronic Notice within five (5) business days from the moment of the its occurrence. If possible, the notice shall specify the nature of the Event of Force Majeure and shall contain a correspondent reference to an official document issued by a competent authority confirming the existence of such Event of Force Majeure and, if applicable, give evaluation of its effects on the Party’s ability to perform its obligations under the Agreement. Such documents shall be sent by the correspondent Party within reasonable time periods specified for such documents.
6.8. If the Party affected by an Event of Force Majeure fails to send the notice as specified in Clause 6.7 of the General Terms, the Party shall have no right to refer to such Event of Force Majeure as an excuse for failure to perform its obligations and, upon a Written Notice of the other Party, shall reimburse to such Party any damage incurred due to the effect of the Event of Force Majeure.
6.9. Upon occurrence of an Event of Force Majeure, the term for obligation performance under the Agreement by the affected Party shall be prolonged for the subsequent and equal period of time during which the Event of Force Majeure and consequences thereof continue as well as the reasonable terms required to redress such consequences.
6.10. The affected Party shall, within five (5) business days), notify the other Party about the discontinuance of an Event of Force Majeure by an Electronic Notice. Such Electronic Notice shall specify the period of time within which the Party expects to perform its obligations under the Agreement delayed due to such 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 non-performance or improper performance of its obligations and, upon a written request of the other Party, shall reimburse the other Party the losses incurred by the other Party in connection with the absence of timely notification and of the Event of Force Majeure effect.
6.11. Should an Event of Force Majeure continue for more than thirty (30) calendar days, the Parties shall negotiate in good faith the future of the Agreement. If the Parties fail to reach an agreement (including by failure to commence negotiations) within thirty (30) calendar days from an Electronic Notice by one Party suggesting to commence negotiations, either Party may unilaterally terminate the Agreement by giving the other Party a Written Notice with the immediate effect upon its receipt by the other Party.
7. TERMINATION OF THE AGREEMENT. SURVIVAL
7.1. The Agreement may be terminated in the following circumstances:
7.1.1. upon a mutual written agreement duly executed by the Parties;
7.1.2. upon a Written Notice by a Party to the other Party delivered at least thirty (30) calendar days prior to the date of termination;
7.1.3. upon a Written Notice by the Counterparty to Yango delivered at least ten (10) calendar days prior to the date of termination if the Counterparty does not wish to be bound by an amended version of the Agreement provided that such Written Notice has been delivered within thirty (30) calendar days from the date when such amended version had become binding upon the Parties. The Agreement shall be deemed terminated from the later of: the termination date specified in the Counterparty’s Written Notice, or the tenth (10th) calendar day from the date of receipt of the Counterparty’s Written Notice by Yango;
7.1.4. in the circumstances specified in Clause 6.2 of the General Terms;
7.1.5. in the circumstances specified in Clause 6.11 of the General Terms;
7.1.6. upon a Written Notice by Yango to the Counterparty with immediate effect upon postage in the circumstances when continuing contractual relations with the Counterparty are inconsistent with the principles of business conduct set out in Code of Business Ethics and Conduct; and
7.1.7. as provided for by the Agreement.
7.2. Notwithstanding anything to the contrary herein (including without limitation Clause 7.1 of the General Terns), the following provisions of the Agreement shall survive its termination:
7.2.1. the General Terms,
7.2.2. sections of the Agreement and the Country Terms which contain the definitions that are absent in the General Terms;
7.2.3. sections of the Agreement and the Country Terms which amend, disapply, and (or) supplement the General Terms;
7.2.4. the Country Terms to the extent they contain addresses and other details of the Parties.
7.3. The provisions listed in Clause 7.2 of the General Terms may be terminated only upon a mutual written agreement duly executed by the Parties.
7.4. The termination of the Agreement for any reason shall not relieve the Parties from the liability for violations of the Agreement which have occurred before the termination.
7.5. The Counterparty explicitly waives its rights under Articles 6:265 and following of the Dutch Civil Code to rescind (in Dutch: ‘ontbinden’) the Agreement.
8.1. Governing law. The Agreement and any non-contractual obligations arising out of or in connection with the Agreement shall be governed by and construed in accordance with law of the Netherlands, without regard to its conflict of law provisions.
8.2. Dispute resolution
8.2.1. The Parties agree that they will aim to resolve any claim, dispute, difference, or controversy of whatever nature arising under, out of, relating to or in connection with the Agreement (including a claim, dispute, difference or controversy regarding its existence, termination, validity, interpretation, performance, breach, the consequences of its nullity or any non-contractual obligations arising out of or in connection with the Agreement) (hereinafter referred to as the ‘Dispute’), by means of friendly negotiations.
8.2.2. The existence of the Dispute does not relieve the Parties from performing their obligations under the Agreement.
8.2.3. If, within fourteen (14) calendar days from the date of the Dispute occurrence, such Dispute has not been resolved by means of the negotiations, any Party may send a Written Notice (hereinafter referred to as the ‘Dispute Notice’) to the other Party informing on the nature and substance of the Dispute, its demands, and suggesting steps and (or) measures that may lead to a resolution of such Dispute.
8.2.4. If the Parties cannot resolve their differences that gave rise to the Dispute within thirty (30) calendar days as of the date of delivery of the Dispute Notice to the other Party, any Party may refer the Dispute to the Netherlands Arbitration Institute (hereinafter referred to as the ‘NAI’). The NAI shall have the exclusive jurisdiction to finally settle all Disputes between the Parties arising in connection with the Agreement, or further agreements resulting therefrom, in accordance with the Arbitration Rules of the NAI (hereinafter referred to as the ‘Rules’) as at present in force and as modified by this Clause, which Rules shall be deemed incorporated into this Clause.
(a) The number of arbitrators shall be three (3), one of whom shall be nominated by Yango, one by the Counterparty, and the third of whom, who shall act as the chair of the arbitral tribunal, shall be nominated by the two Party-nominated arbitrators, provided that if the third arbitrator has not been nominated within thirty-five (35) calendar days of second party-nominated arbitrator accepting its mandate such third arbitrator shall be appointed by the agreement of the Parties and, if the Parties fail to reach an agreement within thirty-five (35) calendar days, the third arbitrator shall be appointed in accordance with the Rules.
(b) The seat or legal place of arbitration shall be Amsterdam, the Netherlands.
(c) The language used in the arbitral proceedings shall be English. All documents submitted in connection with the arbitral proceedings shall be in the English language or, if in another language, accompanied by an English translation.
(d) Each Party agrees that any arbitration under this Clause 8.2 of the General Terms shall be confidential to the Parties and the arbitrators and that each Party shall therefore keep confidential, without limitation, the fact that the arbitration has taken place or is taking place, all non-public documents produced by any other Party for the purposes of the arbitration, all awards in the arbitration and all other non-public information provided to it in relation to the arbitral proceedings, including hearings, save to the extent that disclosure may be requested by a regulatory authority or required by a rule of a stock exchange or listing authority on which the shares or other securities of a Party or its Affiliate are listed or traded, or required of it by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.
(e) This Clause 8.2 of the General Terms and any non-contractual provisions arising out of or in connection with this Clause 8.2 of the General Terms are governed by law of the Netherlands.
(f) This Clause 8.2 agreement to arbitrate shall be binding upon the Parties and their successors.
8.3. Set off and deductions. Unless otherwise expressly provided for in the Agreement, every payment payable by the Counterparty under the Agreement shall be made in full without any set off or counterclaim howsoever arising and shall be free and clear of, and without deduction of, or withholding for or on account of, any amount which is due and payable to Yango under the Agreement. Yango may set off or deduct any amount from any payment that is due and payable to the Counterparty pursuant to the Agreement without any notice to or agreement or permission of the Counterparty and without signing any document.
8.4. Entire agreement. The Agreement, the General Terms, the Country Terms, the Data Processing Agreement and any other documents referred to therein jointly (i) constitute the entire agreement between the Parties with regard to the subject matter contained therein and (ii) supersede all prior agreements and understandings, both oral and written, between the Parties with respect to the subject matter of these agreements.
8.5. Changes. Yango may make any changes to the Agreement (including without limitation the General Terms and the Country Terms) which changes shall be binding upon the Parties immediately after they become available for viewing at https://yango.yandex.com, https://yandex.com/legal, and (or) the Counterparty Account. The term ‘change’ includes any change, amendment, supplement, deletion, or replacement however effected. The Counterparty herewith consents to and agrees with such amended Agreement in advance.
8.6. Unenforceable provisions. If any provision or part of the Agreement is void or unenforceable due to the Law or the Country Law, it shall be deemed to be deleted and the remaining provisions of the Agreement shall continue in full force and effect. If any invalid, unenforceable, or illegal provision of the Agreement would be valid, enforceable, and legal if some part of it were deleted, the provision shall apply with the minimum deletion necessary to make it valid, legal, and enforceable. The deemed deletion of any provision shall not affect the remaining provisions of the Agreement which shall continue to have full force and effect.
8.7. Assignment. Unless otherwise expressly provided for in the Agreement, neither Party may at any time assign, transfer, charge, pledge, or deal in any other manner with the Agreement or any of its rights under it, nor purport to do so, without a prior written permission of the other Party. Yango may at any time assign the Agreement or any of its rights under it to any Affiliate. Any purported dealing in contravention of this Clause 8.7 of the General Terms shall be void.
8.8. Business ethics. Yango, being a company of the Yandex group, adheres to the principles and conditions of work set out in Yandex’s Code of Business Ethics and Conduct in all its activities. Yangos of the companies of the Yandex group are expected to abide by the principles of business conduct set out in this Code of Business Ethics and Conduct. On the Effective Date a copy of the Code of Business Ethics and Conduct is available at https://ir.yandex/corporate-governance/.
8.9. Penalties. The Parties explicitly exclude applicability of Article 6:92 of the Dutch Civil Code with respect to any penalties due by the Counterparty to Yango under this Agreement.
8.10. Anti-bribery. 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 the 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 the Agreement) shall not accept, pay, offer to pay and allow (authorise) the payment and (or) acceptance of any funds or transfer of any assets (including intangible assets), directly or indirectly, to and (or) 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.
8.11. For the purpose of implementing provisions of the Agreement the Parties shall comply, use, and carry out their activity in accordance with the following legal acts:
8.11.1. basic principles of the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
8.11.2. the Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.); and
8.11.3. other provisions of the Law on corruption and corrupt business practices.
8.12. Translations. The Agreement, the General Terms, the Country Terms, the Data Processing Agreement and any other documents referred to therein are made in English and may be translated into the Country Language. Any such translation in the Country Language is for informational purposes only, and in case of any discrepancies between the English version and the Country Language version, the English version shall prevail at all times and for all purposes.
8.13. Addresses and Details of the Parties:
8.13.1. Addresses and other details of Yango are specified in the Country Terms for a relevant Country.
8.13.2. Addresses and other details of the Counterparty have been provided by the Counterparty to Yango via the E-Platform and are specified at the Counterparty Account.
8.13.3. A Party shall immediately notify the other Party by an Electronic Notice about any changes in its details.
8.14. The Counterparty shall, within the term specified in Yango’s Electronic Notice, provide to Yango the original documents confirming the Counterparty’s place of registration and tax residency.
Date of publication: June 3, 2019