(OFFER TO CONCLUDE AN AGREEMENT FOR GRANTING THE RIGHT TO USE THE SOFTWARE PRODUCT) (License Agreement)
1. GENERAL PROVISIONS
1.1. In accordance with Article 435 of the Civil Code of the Russian Federation, this document addressed to the Site user, hereinafter referred to as the User or Licensee, is an official public offer of Mybill LLC, hereinafter referred to as the Licensor, represented by General Director Yuriy Viktorovich Avinov, acting on the basis of the Charter, to conclude an agreement under the terms specified below.
1.2 Full and unconditional acceptance of this offer shall be the User's performing actions provided by Clauses 5.1 and 5.2 of this offer (Agreement) (Article 438 of the Civil Code).
1.3 The acceptance of the offer shall mean that the User agrees with all the provisions of this offer (proposal) and shall be tantamount to concluding a license agreement - an agreement to grant the right to use the software product (hereinafter referred to as the Agreement) under the terms and conditions provided for by this offer.
1.4 The following terms and definitions, among others, are used in this document and the relations between the User and the Licensor arising from or related to it, jointly referred to as the “Parties”:
a) Platform is a software product which is a software tool integrated with the Licensor's Site The functioning of the Platform is defined in section 3 of this Agreement, the functionality, technical and user descriptions of the Platform are defined on the Site;
b) Licensor's Site/Site is the Licensor’s Internet page hosted on the Mybill domain, a Loyalty Program and Marketplace for banks and vendors, its subdomains and associated pages;
c) Service is a set of services provided by the Licensor to the Licensee under the terms of this Agreement using the Site and the Platform, enabling through the functions of the Site to use the Platform, with the possibility of installing additional options for the Licensee;
d) Licensee's Showcase/Showcase is a complex of interconnected electronic pages on the Internet supported by the Platform where the Customers can order goods and/or services of the Vendors by paying for them with Points and/or Certificates transferred to them by the Licensee through the automated tools of the Licensee's Showcase, or inform the Licensee of their wish to exchange Points and/or Certificates for prizes in another form;
e) Vendor is a legal entity that sells Certificates and/or Points for the purchase of goods and/or services as part of its own marketing programs, as well as a seller of such goods and/or services, information about which is displayed in the Licensee's Showcase;
f) Certificate is a certificate issued by the Vendor, having a face value expressed in roubles or conventional units, executed in uncertificated or documentary form and/or designed as a unique alphanumeric code, and serving as a financial instrument for payment for goods and/or services of the Vendor by the Licensee's Client;
g) Customer is a purchaser who uses the services or purchases goods from Licensee to whom Licensee charges Points;
h) Point is a conventional unit, which is an accounting financial instrument for payment for Vendor's goods and/or services by Licensee's Customer and/or used to determine the total face value of Certificates, which are transferred by Licensor to Licensee's Customer;
i) Showcase Balance is the aggregate of the unused Points and/or the face value of Licensee's Certificates uploaded to Licensee's Showcase;
j) Account is a record kept on the Site containing the information necessary to identify the Customer when granting access to the Site, information for authorisation and accounting on the Site;
k) Account Balance is the amount of Points within which Customers can exchange Points for prizes. The procedure for topping up the Account Balance is defined on the Site;
l) Bonus Program is a marketing action of Licensee aimed at stimulating the purchasing power of the respective goods (services) and representing a set of interrelated activities and events that enable its participants when making purchases of goods (services) from partners, as well as for performing certain actions to receive Points that determine the scope of the Customer's rights to receive discounts provided by its partners as part of the Bonus Program.
m) API is a set of commands allowing for automatic data exchange with the Platform.
1.5 By seizing the opportunity specified in Clause 1.2 hereof, the Licensee confirms that he/she:
a) Is a legal entity or individual entrepreneur, joined this Agreement in his/her own interest, or acting for and on behalf of the represented legal entity (individual entrepreneur) both on his/her own behalf and on behalf of the represented entity, and enters into this Agreement in order to carry out business activities, as well as to implement his/her own Bonus program or the Bonus program of the represented legal entity (individual entrepreneur);
b) Is acquainted with the terms and conditions of this Agreement in full;
c) Fully accepts all the terms and conditions of this Agreement, including those setting requirements for his/her activities, without any exceptions or limitations on his/her part, and undertakes to comply with them;
d) Agrees that the Agreement (including any of its parts) can be changed by the Licensor by notifying the Licensee by e-mail, the address of which is specified in the acceptance of this offer, and in case of changes in the terms of Clause 6 of the Agreement - 30 (thirty) calendar days prior to the effective date of the changes. The new wording of the Agreement comes into effect from the moment of its posting on the Site or communicated in another convenient form, unless otherwise provided by the new wording of this offer;
e) Has all necessary rights and powers to enter into the Agreement;
f) Will use the Service only for the purposes permitted by this Agreement, in compliance with its provisions, as well as in accordance with the requirements established by the legislation of the Russian Federation;
g) Will not perform any actions that conflict with or interfere with the provision of the Service or the operation of the equipment, networks, or software by means of which the Service is provided;
h) the use of the Service for specific purposes does not violate property and/or personal non-property rights of the Licensor, the third parties, as well as prohibitions and restrictions imposed by applicable law;
I) Understands and accepts that the provisions of the Consumer Protection Law shall not apply to the relations between the Parties.
SUBJECT MATTER OF THE AGREEMENT
2.1 The Licensor grants the Licensee the right to use the result of his/her intellectual activity - the Platform in the installation and use in accordance with the procedure provided for in the Agreement and the Licensee undertakes to pay the Licensor the remuneration set forth in the Agreement and to comply with the requirements for the use of the Platform when using it in his/her activities.
2.2 The Licensor warrants that it is the exclusive owner of the exclusive right to the Platform. In order to identify the right to use the intellectual property object - Platform, the Licensor creates an account for the Licensor (account) by means of the Service, after performing the activities included in Clauses 5.1 and 5.2.
2.3 The Licensor, in the case of the Licensee's will, in accordance with the procedure specified in Clauses 5.2 and 5.4 of the Agreement. The Licensee shall grant the Licensee the right to use the results of its intellectual activity - the Platform in terms of the installation and use of the additional options in the manner prescribed by the Agreement, the functionality and time of connection which are specified on the Site, and the Licensee shall pay the Licensor the remuneration specified in the Agreement for the installation and connection of the given options and shall observe the requirements for the use of the Platform when using it in its activities.
2.4 The license granted to the Licensee hereunder shall be a simple (non-exclusive) one. Licensor shall retain the right to grant licences to other persons.
2.5 The Licence shall be issued for the duration of this Agreement, but only after the User performs the actions stipulated in Clauses 5.1 and 5.2 or 5.1, 5.2 and 5.4 of this Agreement.
2.6. This Agreement comes into effect from the moment the User accepts this offer in the order specified in this offer.
PROCEDURE FOR OPERATION OF THE PLATFORM
3.1 The procedure for operation of the Platform is posted on the Site.
PROCEDURE FOR THE USE OF THE INTELLECTUAL PROPERTY OBJECT
4.1 The Licensee shall be not entitled to use the Intellectual Property Object in the following ways:
- use the Platform for illegal purposes and in violation of any rights of third parties;
- cause any damage to third parties and/or the Licensor in the process of using the Platform;
- in violation of the requirements of the state authorities and the holders of title to the objects of property and non-property rights.
4.2 The Licensor undertakes to provide the Licensee with the information necessary for the use of the Platform by posting the current version of this offer on the Site or additional information on the Site.
4.3 The Licensee shall not enter into a sub-licence agreement or transfer in any manner whatsoever the account and/or the right to use the Website to third parties.
PROCEDURE FOR ACCEPTANCE OF THE OFFER, PERFORMANCE OF OBLIGATIONS AND EXERCISE OF RIGHTS BY THE PARTIES
5.1 The acceptance of this Agreement (the offer) shall be considered to be made by the User (Licensee) at the moment of the Licensee's receipt of the Acceptance signed by the Licensee in the form provided in the Annex to this Agreement.
5.2 After the conclusion of this Agreement in accordance with the procedure specified in Clause 5.1 of the Agreement the Licensee shall independently transfer the amount of the license fee to the Licensor’s current account in accordance with the schedule corresponding to the Licensee's chosen tariff plan determined on the Site.
5.3 The acceptance of this Agreement (the offer) shall be considered to be fully performed by the Licensee from the moment the amount of the license fee is transferred to the Licensor's account in case the Licensee chooses the tariff plan “Standard” or “Advanced” or from the moment the Licensor receives the Licensee's Acceptance according to Clause 5.1 of the Agreement in case the Licensee chooses the tariff plan “Basic”.
5.4 In order for the Licensee to connect the additional options, the Licensee shall pay for the installation of these options at any time during the term of the Agreement in accordance with the established prices for connecting the additional options on the Site, by transferring the appropriate amount to the Licensor's current account, whereupon the Licensor shall connect the additional options to the Licensee's account within the time period specified on the Site.
5.5. From the moment of performing the actions specified in Clauses 5.1 or 5.1 and 5.4 or 5.1 and 5.2 or 5.1, 5.2, 5.4 of the Agreement, the Licensee receives the right to use the Platform and the Licensee's selected additional options in the manner prescribed in this Agreement.
5.6 The update of the Platform to an up-to-date version that allows the purpose of its creation to be extracted from its use shall be carried out automatically by the functions of the Service.
5.7 In case the Licensee concludes this Agreement with the Licensee's selection of “Standard” or “Advanced” tariff plan and/or the Licensee connects additional options in accordance with Clause 5.4 herein, the transfer of the corresponding rights from the Licensor to the Licensee under this Agreement shall be executed by signing by the Parties of the Act(s) of rights transfer, which form is defined in Annex 2 to this Agreement.
5.7.1 In case the Licensee concludes this Agreement with the Licensee's selection of the tariff plan “Basic”, the transfer of the relevant rights from the Licensor to the Licensee is performed by means of actual direct access of the Licensee to the functions of the Service without drawing up by the Parties of the Act(s) of rights transfer.
5.8. Signing of the Act(s) of rights transfer in case Licensee enters into this Agreement with Licensee's choice of “Standard” or “Advanced” tariff plan and/or Licensee's connection of additional options in accordance with Clause 5.4 shall be performed in the following order:
5.8.1. The Licensor shall, no later than five (5) working days from the end of the calendar month in which the rights stipulated in Clause 2.1. hereof were granted, provide the Licensee with the Act(s) in two (2) copies signed by an authorised representative of the Licensor by sending the said documents to the address of the Licensee specified by him/her in the Acceptance of this Agreement.
5.8.2. The Licensor shall, no later than five (5) working days after the actual granting of the rights stipulated in Clause 2.3. hereof shall provide the Licensee with the Statement(s) in two (2) copies signed by an authorised representative of the Licensor by sending the said documents to the address of the Licensee specified by him/her in the Acceptance of this Agreement.
5.8.3 The Licensee shall, within two (2) working days of receipt of the Act(s) from Licensor, sign the Act(s) on its behalf and send the signed copies to Licensor's postal address indicated on the Site, or send motivated objections to Licensor by e-mail indicated on the Site.
220.127.116.11 If the Licensee fails to hand over to Licensor the Act(s) signed by Licensee, or fails to hand over the relevant reasoned objections, within two (2) calendar weeks from the date Licensor sent the documents in accordance with Clause 5.9.1 hereof, all rights under this Agreement shall be deemed to have been duly transferred by Licensor and accepted by Licensee based on the Act(s) executed by Licensor unilaterally.
5.8.4. If the Licensee sends motivated objections in accordance with Clause 5.8.3, the Licensor shall prepare and send to the Licensee by e-mail specified by the Licensee in the Acceptance of this Agreement a schedule and terms of necessary revisions, drawn up in free form depending on the nature of the revisions, which the Licensor shall carry out at its own expense.
AMOUNT, TERMS AND PROCEDURE OF PAYMENT OF THE LICENSE FEE
6.1 The amount of the licence fee, including payment for additional options, shall be determined on the Site in the manner prescribed in Clauses 5.2 or 5.2 and 5.4 of the Agreement and shall not be subject to VAT*.
* The transfer of the right to use the intellectual property listed in subpara. 26 para. 2 of Art. 149 of the Tax Code of the Russian Federation.
6.2 In the event of blocking the Licensee's access to the Platform as provided by Clause 7.1.5 of this Agreement, the licence fee shall not be refunded.
6.3 All payments under this Agreement shall be made on a cashless basis by transferring a sum of money by the Licensee to the Licensor's account on the basis of acceptance of this offer for the payment of the license fee and/or additional options. The Licensee's payment obligations shall be deemed fulfilled on the date the payment amount is credited to the Licensor's current account.
6.4 Licensor has the right to change the terms of the tariff plans specified on the Site by notifying Licensor 30 (thirty) calendar days prior to the entry into force of the new terms, by sending an email specified in the acceptance of the offer.
RIGHTS AND OBLIGATIONS OF THE PARTIES
7.1 The Licensor shall be entitled to:
7.1.1. Perform scheduled updates of the Platform and the Site, temporarily suspend their operation for a period not exceeding one (1) hour, according to the schedule determined on the Site.
7.1.2. Fully or partially suspend and/or terminate the Licensee's access to the Platform without warning the Licensee while performing unscheduled work aimed at restoring the performance of the Platform, while making every effort to restore the performance of the Platform as soon as possible, as well as, at its discretion, in cases of discovery of facts indicating a breach by the Licensee of its obligations or Russian law, by notifying the Licensee of the suspension of access as soon as possible by the email specified in the acceptance of this Agreement (the offer).
7.1.3. Change at its own discretion the procedure for performing the obligations and exercising the rights of the Parties under this Agreement with notification of the Licensee by e-mail, the address of which is specified in the acceptance of this offer, in case of changes in the conditions of сlause 6 of the Agreement - 30 (thirty) calendar days prior to the changes coming into effect.
7.1.4. Provide additional services to Licensee for an additional fee.
7.1.5. At its own discretion, at any time block the Licensee's access to the Platform by any means, including the deletion of his account in case of breach by the Licensee of the requirements stipulated in Clause 1.5 of the Agreement and/or his obligations under this Agreement, as well as the restrictions set forth in this Agreement.
7.1.6. Receive from the Licensee information and materials required to perform its obligations under the Agreement.
7.1.7. Conclude with the Customers the user agreements required by the Licensee to perform the functions of the Platform and its obligations, as well as other agreements. However, these agreements (contracts) do not bind the Licensor to the obligations of the Licensee arising when the Licensee enters into contracts with Customers and other counterparties.
7.2 The Licensor shall be obliged to:
7.2.1. Ensure that the Platform is operational throughout the duration of the Agreement 24 hours a day, seven days a week. In the event of an unscheduled shutdown of the Platform, make every effort to restore it to working order as soon as possible in accordance with the following regulations.
7.2.2. Provide the Licensee with free access to all information and descriptions required for the Licensee's use of the Platform, 24 hours a day, seven days a week, by posting them on the Site throughout the term of the Agreement.
7.2.3 Provide written advice to the Licensee regarding the use and configuration of the Platform to the Licensor's support service. The procedure for the operation of the Licensor's support service is defined on the Site.
7.2.4. Ensure the continuity of the API software methods, i.e. when finalising the new methods, ensure the functioning of the Platform so that the functioning of the previously used API methods is not affected.
7.2.5. Take all reasonable steps to enable Licensee to enter into a contract with at least one Vendor at any time using the functions of the Service.
7.3. The Licensee shall be entitled to:
7.3.1. Use the current version of the Platform at any time in accordance with Section 3 and Clause 1.6 of the Agreement.
7.3.2. Terminate this Agreement. In this case, the amount of the paid license fee is non-refundable.
7.4. The Licensee shall be obliged to:
7.4.1. Perform its obligations and exercise its rights under the Agreement in accordance with the requirements set forth in Clause 1.5 of the Agreement.
7.4.2. Use only certified equipment to access the functions of the Service and to use the Platform as regards the use of the Showcase or the Showcase with additional options.
7.4.3. Provide the Licensor with the information and materials which are necessary for the Licensor to perform its obligations under the Agreement in a timely manner. The deadlines for providing the information and materials are defined on the Site.
7.4.4. In the event that the Customer submits a claim relating to the purchase of Points through the performance of the relevant assignment by the Licensor, immediately forward such claims to the latter and pass on to the Licensor all disputes by Customers relating to payment for Points by bank card.
7.4.5. Use the Platform and Service in accordance with the descriptions provided on the Site.
7.4.6. Obtain the Customer(s) consent to the processing of their personal data in the cases stipulated by the Federal Law No. 152-FZ dated 27.07.2006 “On Personal Data”.
7.4.7. Сontinuously ensure the possibility for the Customers to realise their Points by providing the required Balance of their Showcase account during the entire term of the Bonus Program.
7.4.8. Post on the Showcase:
- Information about itself as the Organiser of the Bonus program, including company's name, contact phone number and e-mail;
- Terms of the Bonus Program;
- Rules of participation of the Customers in the Bonus Program.
8.1 The terms and conditions of this Agreement and additional agreements (if any) are confidential and shall not be disclosed.
8.2 The Parties guarantee confidentiality with respect to the contents of the Agreement, including information regarding software codes, inventions, algorithms, know-how, ideas, and any other technical and financial information.
8.3 The Parties shall also be liable for breach of confidentiality by individuals and legal entities with whom the legal relationship has already been terminated.
LIABILITY OF THE PARTIES
9.1 The parties shall be liable for the non-performance or improper performance of their obligations under this agreement in accordance with applicable law.
9.2 The Licensor shall not be liable for:
9.2.1. The regularity of the functionality and operability of the Platform in the event that it is blocked by third parties, while making every effort to restore the functionality of the Platform as soon as possible.
9.2.2. The implementation of the Bonus programs by their organisers, shall not be liable for the obligations of the organisers of the Bonus programs and shall not deal with any financial issues in connection with the implementation of such Bonus programs.
9.3 All issues related to the participation of the Customers in the Bonus programs implemented through the Site Service shall be resolved between the Customers and the Licensee without the involvement of the Licensor.
9.4 In all the cases of the Parties' failure to perform their obligations under the Agreement the Parties shall be liable in accordance with the current legislation of the Russian Federation, including but not limited to the liability provided in Section VII of the Civil Code of the Russian Federation.
10. FORCE MAJEURE
10.1 The Parties shall be released from liability for non-performance or improper performance of obligations under the Agreement if the proper performance was impossible due to force majeure, i.e. extraordinary and non-preventable circumstances under the given conditions, which are understood as: prohibitive actions of authorities, civil disturbances, epidemics, blockade, embargo, earthquake, flood, fire or other natural disasters, and requirements of control and supervision authorities.
10.2. If these circumstances occur, the Party shall notify the other Party by e-mail within 7 days.
10.3. The document issued by the authorised state authority shall be sufficient confirmation of existence and duration of force majeure circumstances.
10.4 If force majeure circumstances persist for more than 1 year, each Party shall be entitled to terminate the Agreement unilaterally. In this case, the licence fee paid shall not be refunded.
11. VALIDITY, AMENDMENT AND EARLY TERMINATION OF THE AGREEMENT
11.1 This Agreement shall enter into force as of the moment of its conclusion as prescribed in section 5 of this Agreement, in the version approved and published by Licensor on the Website, and shall be valid indefinitely.
11.2 The Licensor has the right to unilaterally change the terms of this Agreement by posting on the Agent's website the current version of the Agreement, in particular the provisions of Section 3 of the Agreement regarding the posting of a new version of the “Procedure for operation of the Platform”. Such amendments shall become effective as soon as they are posted on the Site.
11.3 This Agreement may be terminated by either Party unilaterally with a 14 (fourteen) calendar days prior notice given to the other Party by email which is indicated on the Site in the case of the Licensor and by accepting this Agreement (offer) in the case of the Licensee.
11.4 All electronic notices shall be sent by the Licensee to the e-mail address of the Licensor which is indicated on the Site.
11.5 The Parties to the Agreement may change the provisions of the Agreement or conclude an additional agreement to the Agreement by exchanging written documents and by means of electronic communication which allows establishing with certainty that the document comes from the Party to the Agreement, including the functions of the Service.
12. SETTLEMENT OF DISPUTES
12.1 All the disputes related to the conclusion, interpretation, performance and termination of the Agreement shall be settled by the Parties by way of negotiations.
12.2 If the parties fail to reach an agreement, the disputes shall be resolved in accordance with the applicable laws of the Russian Federation.
13. FINAL PROVISIONS
13.1 This Agreement shall be deemed to be in writing pursuant to Article 434 of the Civil Code of the Russian Federation in view of the Parties' exchange of written documents, as well as by means of electronic communication which allows establishing with certainty that the document comes from the Party to the Agreement, including via the functions of the Service.
13.2 The version of this Agreement (offer) dated “11” October 2016 is published on Licensor's Site.
13.3. The Licensor's details
Annex No. 1 to the Offer (OFFER TO CONCLUDE AN AGREEMENT FOR GRANTING THE RIGHT TO USE THE SOFTWARE PRODUCT)
Form of acceptance
ACCEPTANCE NO. SP________
to the offer to conclude an agreement
Hereby __________________________________ informs Mybill LLC of a full offer to conclude the agreement on granting the right to use the software product subject to the terms and conditions of the offer, posted on the Site Mybill - Loyalty Program and Marketplace for Banks and Vendors on DD.ММ.YY. By signing this acceptance our party acknowledges the conclusion of the said Agreement on granting the right to use the software product without any disputes and undertakes to perform its obligations as the Licensee in full compliance with this offer (Agreement).
To: Mybill LLC represented by __________________________________________
and unconditional acceptance of
Our Party's Details:
_____________________________ Postal address:
Contact phone number:
_____________________________ General Director
Annex No. 2 to the Offer (OFFER TO CONCLUDE AN AGREEMENT FOR GRANTING THE RIGHT TO USE THE SOFTWARE PRODUCT)
The Form of Acceptance Certificate of the Right to Use the Result of Intellectual Activity
______________, hereinafter referred to as “Licensor”, represented by __________ acting on the basis of ____________, on the one hand, and ______________, hereinafter referred to as “Licensee”, represented by ____________ acting on the basis of ________, on the other hand, have composed this Acceptance Certificate of the right to use the result of intellectual activity (hereinafter the Certificate) under the License Agreement No. ___ dated DD. ММ.YY (hereinafter referred to as the Agreement), whereby in accordance with Clause 2 of the Agreement the Licensor transfers the right to use the result of its intellectual activity:
Use of the Platform under the terms of the tariff plan “Advanced” for the period ММ.YY
Additional option “______________”.
Tax (VAT exempt)
In the form of the ability to use the Platform, and the Licensee accepts this right in accordance with the terms and conditions of the Agreement. This Certificate is made in two (2) copies, one each for the Licensor and the Licensee.
On behalf of the Licensor _____________________ (___________) LS
On behalf of the Licensee _____________________ (___________) LS