Offer on Software Product Access on the Marketplace
This document is a translation of Offer on Software Product Access on the Marketplace in English. In case of conflict between the Russian version and this translation — only the Russian version of the document is legally binding. The Russian version of Offer on Software Product Access on the Marketplace can be found here: https://yandex.ru/legal/marketplace_offer.
1. Terms and Definitions
Unless the context otherwise requires, capitalized terms used herein shall have the following meanings:
1.1. Acceptance means full and unconditional acceptance of the Offer by performing actions specified in Clause 3.1 of the Offer.
1.2. Software Product Owner means a legal entity or an individual entrepreneur that entered into the Contract to Use Yandex.Cloud Platform Services available at https://yandex.ru/legal/cloud_oferta and that is entitled to use the respective Software Product.
1.3. Agreement means an agreement between Yandex and the Software Product Owner under which the Software Product Owner shall grant Yandex access to the Software Product for a fee in order for such Software Product to be placed on the Marketplace. The Agreement is concluded by Acceptance of the Offer.
1.4. Software Product means any product that is a software or a dataset access to which shall be granted to Yandex by the Software Product Owner in order for such Software Product to be placed on the Marketplace.
1.5. User License Agreement means a legally binding agreement between the Software Product Owner and the User (which may be executed in the form of an electronic click-wrap or similar license) to grant such User a non-exclusive license to execute and/or otherwise use the Software Product on a virtual machine.
1.6. Marketplace means a catalog of Software Product products placed on the Platform and published by Yandex in order to provide such Software Product to Users.
1.7. Reporting Period means a period of time from the first through the last day of each calendar month. The first reporting period shall be defined as the period from the date of execution hereof through the last day of the respective month. The last reporting period shall be defined as the period from the first date of the respective calendar month through the last date of the term hereof.
1.8. Partner Portal — closed Website section, located in the following address: https://partners.cloud.yandex.ru.
1.9. Yandex.Cloud Platform (Platform) means a hardware and software platform comprised of hardware and software tools placed on infrastructure of Yandex or its affiliates allowing for the use of the Marketplace and other functionalities of the Platform.
1.11. Website means the website available at https://cloud.yandex.ru through which the Software Product Owner gains access to the Platform.
1.12. Parties means, collectively, Yandex and the Software Product Owner.
1.13. Services means the services to be rendered by the Software Product Owner listed in Clause 2.1 hereof.
1.14. Yandex means Yandex.Cloud LLC (OGRN (Registration number) 1187746678580).
2. Subject Matter
2.1. The Software Product Owner shall provide Yandex with the access to the Software Product ("Services") in order for Yandex to place such Software Product on the Marketplace and offer the same to Users.
2.2. The Software Product Owner shall grant access to the Software Product by sending to Yandex a link to the virtual disk containing the Software Product held by such Software Product Owner or otherwise as agreed by the Parties.
3. Execution of the Agreement
3.1. Full and unconditional Acceptance of the Agreement shall be made by putting a tick next to "I have read the Agreement and accept its terms" in the appropriate section of the Marketplace.
3.2. The actions stipulated in clause 3.1 made by a person with whom Yandex terminated the Agreement due to its violation shall not deemed as a proper Acceptance. These actions do not entail any obligations on the part of Yandex. The provisions of this clause shall not apply to cases where Yandex has performed unambiguous actions indicating acceptance of actions stipulated in clause 3.1 made by the abovementioned persons (payment for the Services of the Software Owner). Yandex at its own discretion has the right to determine the technical ways to limit the Acceptance in respect of the above persons.
3.3. The Offer becomes effective on the date specified in section “Effective Date” and is effective until revocation of the Offer by Yandex. Acceptance of the Offer by the Software Product Owner made in accordance with the section 3 hereunder, is deemed as a conclusion of the Agreement (Art. 438 of the Civil Code of the Russian Federation) on the terms of the Offer. Revocation of the Offer means the absence of the text of the Offer at the address https://yandex.ru/legal/marketplace_offer.
3.4. The Agreement becomes effective from the date of Acceptance and is valid until its termination. The Agreement is assigned a number which is displayed in the appropriate section of the Partner Portal.
3.5. Yandex reserves the right to amend the terms of the Offer and the documents referenced in the Offer and/or revoke the Offer at any time at its sole discretion. If Yandex makes changes to the Offer or documents referred in the Offer, such changes shall enter into force from the moment the amended text of the relevant document is published on the Internet at the addresses specified for the relevant documents, unless another period for the entry into force of the changes is determined additionally.
4. Cost of the Services
4.1. The Software Product Owner shall be entitled to impose a cap on the fees that Yandex may charge to Users for the Software Product provided by Yandex to Users on the Marketplace. The Software Owner has the right to change the cap in the Partner Portal.
4.2. The cost of the Software Product Owner's Services shall be equal to 80 percent of the total amount of fees received by Yandex for the provision of the Software Product to Users, less the amount of VAT charged by Yandex on such fees.
4.3. The cost of the Services shall include VAT at the rate (if any) defined by the laws in effect.
4.4. The Software Product, access to which is granted by the Software Product Owner to Yandex, shall be accounted for automatically by Yandex's software tools, database and statistics accounting system.
5.1. Yandex shall post-pay for the Services on the 12-15th day of the month following the Reporting Period subject to the Software Product Owner having submitted original Certificates for all preceding Reporting Periods, if such Software Product Owner is a legal entity or an individual entrepreneur whose Services are subject to VAT.
5.2. If the Software Product Owner is a legal entity or an individual entrepreneur whose Services are not subject to VAT, then:
5.2.1. within Seven (7) business days following the end of the Reporting Period, Yandex shall execute a unilateral Certificate specifying the scope of the Software Product Owner's Services rendered in such Reporting Period.
5.2.2. the Software Product Owner shall review the Certificate within Ten (10) business days of execution thereof and may, if it disagrees with it, deliver to Yandex its written (including emailed) reasonable refusal to approve the same. If no such written reasonable refusal is received by Yandex within the aforementioned period, the respective Certificate shall be deemed accepted and agreed by the Parties. Such Certificate shall serve as ground for payment and Yandex will not accept any further claims based thereon.
5.3. If the Software Product Owner is a legal entity or an individual entrepreneur whose Services are subject to VAT, then:
5.3.1. within Seven (7) business days following the end of the Reporting Period, Yandex shall execute and email to the Software Product Owner a Certificate setting out the scope of the Software Product Owner's Services rendered in the respective Reporting Period. The Software Product Owner agrees that a copy of the Certificate shall be used by the Parties in the course of the Services acceptance process prior to receipt of the original Certificate.
5.3.2. the Software Product Owner shall, within Ten (10) business days of execution of the Certificate, review the same and email to Yandex its signed copy and an invoice and shall simultaneously send two signed copies of the Certificate and such invoice by post (or courier) or deliver to Yandex (including by email) its reasonable refusal to approve the Certificate.
5.3.3. Upon receipt of the Certificate, Yandex shall sign it and send to the Software Product Owner one signed copy by post (or courier).
5.4 All payments hereunder shall be made in Russian rubles. Yandex's obligation to pay for the Software Product Owner's Services shall be deemed discharged in full once the respective cash amount is debited from Yandex's settlement account. Payment shall be remitted to the bank account set out herein.
6. Rights and Obligations of the Parties
6.1. Yandex shall:
6.1.1. pay for the Software Product Owner's Services as provided for herein;
6.1.2. not use the Software Product for any purposes conflicting with those of the Agreement.
6.2. Yandex shall be entitled to:
6.2.1. moderate the Software Product access to which has been granted by the Software Product Owner.
6.3. The Software Product Owner shall be entitled to:
6.3.1. Terminate the Agreement unilaterally in case the Software Product Owner disagrees with changes made by Yandex to the Offer or any other documents mentioned in the Offer. In order to terminate the Agreement in that case, the Software Product Owner shall notify Yandex in writing not later than within 7 (seven) calendar days after the changes became effective. The Agreement is deemed terminated from the moment when Yandex received the termination notice from the Software Product Owner.
6.4. The Software Product Owner shall:
6.4.1. include in the Software Product a User License Agreement which shall provide for the terms of the license granted by the Software Product Owner to the User and govern the use of the Software Product by the User. If no User License Agreement is included in the Software Product, the Software Product Owner hereby agrees that each User that receives the Software Product on the Marketplace shall automatically receive from the Software Product Owner a non-exclusive, non-transferable license to use the Software Product on a virtual machine across the globe, such license to be perpetual, except to the extent that the Software Product is provided to Users with limited access rights under trial use terms pursuant to which such license is limited to the trial use period. In accordance with the afore-mentioned license, the Software Product Owner shall solely be responsible for support and maintenance services, any warranty or quality claims in respect of the Software Product, any claims for infringement of third-party intellectual property rights and for legal compliance. Such User License Agreement shall in any event be entered into solely between the Software Product Owner and the User, and under no circumstances shall Yandex be a party to the License Agreement with the User;
6.4.2. grant access to the Software Product and provide the following information: the name of the Software Product, a detailed description of the Software Product, a brief description of the Software Product (which, if unavailable, can be generated by Yandex), guidelines, images (screenshots), technical requirements, version (if any), category, terms under which the Software Product is provided (for example, whether the Software Product is provided for a trial period), the fees applicable to the Software Product, keywords, the Software Product classification (for example, if not recommended for Users of certain ages and/or otherwise), the Software Product status (active/inactive), serial numbers (if no serial number generation form is selected), the Software Product build and a description thereof (name, version, platform, device, language, file formats, compatibility), etc.;
6.4.3. update the Software Product to the image of which the Software Product Owner provides access and fix bugs, vulnerabilities and other defects of the Software Product identified by Yandex or other persons in a timely manner;
6.4.4. provide email and telephone support to Users, specify the name, address, email address and telephone number of the support services in the Software Product and timely respond to Users' questions related to the Software Product;
6.4.5. ensure that the credentials used by the Software Owner to access the Partner Portal are kept confidential and not compromised;
6.4.6. immediately notify Yandex in case of loss or reasonable suspicion of breach of confidentiality (compromise) of their credentials used to access the Partner Portal;
6.4.7. advise Yandex of any change in the Software Product Owner's details within Five (5) business days of the occurrence of the respective change;
6.4.8. within Five (5) business days of receipt of a request from Yandex, furnish copies of documents in support of the information about the Software Product Owner duly certified by the Software Product Owner;
6.4.9. not assign any of the rights and obligations hereunder to third parties without the written consent from Yandex;
6.5. Prohibited Software Product. The Software Product Owner may not grant access to any Software Product or any materials related thereto that are in breach of any policies of Yandex or that:
6.5.1. in any manner block, disable or damage virtual machines, the Platform, Yandex's Software Product, network or any personal data or allow for unauthorized access to any virtual machine, Software Product, network or personal data of any User, Yandex, Yandex's partners or any other third party, including, inter alia, any Software Product that transmits viruses, worms, malware or spyware;
6.5.2. contain any illegal content, child pornography, obscenities, nudity, sexual activity, extremist materials, any materials inciting hatred or violence, offensive, discriminatory or any other materials the distribution of which is prohibited or restricted in accordance with applicable law;
6.5.3. illegally process private and confidential information of individuals;
6.5.4. violate, or contain links to a website that violates, any intellectual property rights, including copyright, trademarks, patents, know-how or any other third-party intellectual property rights;
6.5.5. promote online gambling, including, inter alia, online casinos, sports betting and lottery services;
6.5.6. imitate the functionality or warnings of a User's operating system or other applications;
6.5.7. facilitate, promote, support or otherwise allow for the making or processing of payments by a User within the Software Product.
7. Representations and Warranties of the Parties
7.1. The Software Product Owner represents that:
7.1.1. It provides reliable data when registering on the Partner Portal and assumes full responsibility for their accuracy, completeness and reliability;
7.1.2. the person accepting the Offer on behalf of the Software Product Owner has all the necessary rights and powers to accept the Offer;
7.1.3. a) it fully acquainted with the terms of the Offer and the documents referenced in the Offer, b) fully understands the subject of the Agreement and c) the meaning and consequences of its actions in relation to the conclusion and execution of the Agreement.
7.1.4. it has all necessary intellectual property rights and third-party consents and validly holds all necessary rights to the Software Product access to which is granted to Yandex as part of the Services;
7.1.5. it complies with the requirements of applicable law in the course of its business.
7.2. The Software Product Owner shall provide to Yandex a non-exclusive royalty-free license to use the Software Product across the globe for the purposes of this Agreement, including for reproduction, distribution, public display and performance and for making the Software Product available to the general public and to use any other means as may be necessary for Yandex to perform its obligations hereunder.
If the Software Product Owner places personal data of third parties, including employees of the Software Product Owner, it undertakes to obtain the consent of the persons established by law to place (process) the personal data of such persons.
7.4. The Software Product Owner grants Yandex the right to use, across the globe, the logo and the trademark of the Software Product Owner, the name of the Software Product by any means specified in the Art. 1270 of the Civil Code of the Russian Federation during the whole terms hereof for the purposes of the Software Product Owner identification on the Marketplace and for information, advertising and marketing purposes, provided that no additional consent shall be received from, and no remuneration shall be paid to, the Software Product Owner for such use.
The Software Product Owner grants Yandex the right to add a round purple label with a lightning bolt on it to the icons of the Software Product in order to indicate the compatibility of the Software Product with the DataLens service, as well as to indicate the type of software product "connector".
8. Liability of the Parties
8.1. The Software Product Owner shall solely be liable for the accuracy, correctness and validity of the information it provides to Yandex and Users, and hereby represents and warrants that such information is accurate, correct and valid and that the Software Product is secure, has no design and functionality defects and complies with all applicable laws and requirements. The Software Product Owner shall be liable to third parties for any rights and legal interests thereof infringed upon by the Software Product.
8.2. The Software Product Owner shall solely be liable for any classification, categorization or feature of the Software Product in accordance with applicable law. In any event, Yandex shall not be liable for any Software Product classification, categorization or feature made by the Software Product Owner; provided, however, that, notwithstanding the foregoing, Yandex may at its own discretion reclassify or recategorize the Software Product or assign any other feature thereto.
8.3. The Software Product Owner shall be liable for any support and maintenance services related to the Software Product. The Software Product Owner shall solely be liable for the Software Product, its quality and characteristics, the accuracy and completeness of the information that the Software Product Owner provides to Users, for any express or implied product warranty, support, maintenance and other Software Product-related obligations, for communication with Users and for handling any User claims and requests in respect of the Software Product.
8.4. If the Software Product Owner becomes aware of any serious defect in the Software Product, it shall promptly advise Yandex thereof.
8.5. Yandex shall not be obliged to offer Users any support or maintenance services in respect of the Software Product. Yandex may (but shall not be obliged to) consider any User claim, following which Yandex may at its own discretion refund to such User the amount of fees paid for the Software Product to Yandex. In such case, the Software Product Owner's Service shall be deemed not to have been rendered in full, and Yandex may recover from the Software Product Owner a penalty of 20% of the Software Product fees refunded to the respective User, by giving written notice to that effect to the Software Product Owner.
8.6. If the Software Product Owner fails to comply with the given representations and warranties or if the Software Product infringes upon any third-party rights following which Yandex, its agents, subcontractors, partners, employees or other contractors will face, without limitation, any third-party claims, lawsuits and/or orders to pay penalties filed or issued by governmental bodies and/or third parties, the Software Product Owner shall, at Yandex's request, promptly furnish all necessary and required information related to such claims (lawsuits, orders), assist Yandex in the settlement thereof and reimburse Yandex for all losses (including legal expenses and attorneys' fees, and fines and penalties) caused by such claims (lawsuits, orders) filed or issued against Yandex.
8.7. Either Party shall be relieved of liability for failure to perform its obligations hereunder in part or in full, if such failure is caused by circumstances beyond its control, including, without limitation: acts of God; natural and industrial disasters; terrorist acts; military operations; civil unrest; any regulations adopted by government or local self-government authorities that prohibit or restrict the Parties' operations hereunder; other circumstances occurring after the execution of this Agreement as a result of events of Force Majeure that could not reasonably have been foreseen or provided against by such Party and that render it impossible for the Parties to perform or properly perform their respective obligations hereunder.
8.7.1. Upon the occurrence of a Force Majeure event, each Party shall notify thereof the other Party. Such notice shall contain information on the nature of the respective event, official documents evidencing the occurrence thereof and, to the extent possible, giving an assessment of the effect that such event might have on the Party's ability to perform its obligations hereunder.
8.7.2. If a Force Majeure event continues for more than One (1) month, either party may unilaterally repudiate its obligations hereunder.
9. Limitations of Liability
9.1. In no event shall Yandex be liable to the Software Product Owner for lost profit and consequential damages incurred as a result of or in connection with the performance of this Agreement.
9.2. Yandex's aggregate liability for losses and actual damages caused to the Software Product Owner shall in any event be limited to Fifty Thousand rubles (RUB 50,000).
10.1. The Software Product Owner may unilaterally terminate this Agreement or an Appendix by giving written notice to Yandex no less than Ten (10) calendar days prior to the proposed termination date.
10.2. The Software Product Owner may unilaterally terminate this Agreement or an Appendix in case the Software Product Owner disagrees with the changes made by Yandex to the Offer or other documents mentioned herein subject to notification of Yandex as it is stipulated in Clause 6.3.1 of the Offer.
10.3. The Software Product Owner shall send such notice of unilateral termination of this Agreement or an Appendix in the form of a scanned copy of a statement signed by the Software Product Owner to Yandex's email address available on the Website.
10.4. Yandex may unilaterally terminate this Agreement or an Appendix, with immediate blocking of access to the Services and without reimbursement of, inter alia, any costs and losses, in the event of:
closing or termination of the Marketplace operations;
repeated breaches (more than twice) by the Software Product Owner of any of its obligations hereunder;
the Software Product failing to meet the requirements set out in Clause 6.5 hereof;
absence of the Software Product purchases by Marketplace Users during Sixty (60) calendar days of placement thereof;
for or without cause, by giving written notice to the Software Product Owner no less than Ten (10) calendar days prior to the proposed termination date.
10.5. The obligations of the Parties which by their nature should survive (including, without limitation, the confidentiality and payment obligations and obligations related to information use) shall remain in full effect after termination of this Agreement.
10.6. Termination of this Agreement for any reason shall not relieve the Parties of liability for breaches of its terms and conditions committed during the term hereof.
10.7. Should this Agreement be terminated for any reason, Yandex shall remove the Software Product and any materials related thereto from the Marketplace within Sixty (60) calendar days of such termination.
11. Governing Law and Dispute Resolution
11.1. The Offer, execution and performance of this Agreement shall be governed by the effective laws of the Russian Federation. All matters not covered or not fully covered by this Offer or documents referred to herein shall be governed by substantive law of the Russian Federation.
11.2. In the case of any dispute or conflict between Yandex and the Software Product Owner related to the performance of this Agreement, the Parties shall use their best efforts to resolve such dispute or conflict through negotiations. The Parties shall establish a mandatory dispute resolution procedure without resort to court proceedings.
11.3. Yandex shall consider claims filed by the Software Product Owner in respect of the performance of this Agreement within Thirty (30) calendar days of receipt thereof. Any claims of the Software Product Owner related to payment of compensation, damages or other cash amounts shall be signed by an authorized representative of the Software Product Owner. A scanned copy of such claim shall be sent through the communication channels for notices as provided for herein.
11.4. If the Parties fail to reach an agreement on any dispute within the claim consideration term (including if no response to the claim is received or the claim is dismissed), such dispute shall be referred to court. All unsettled disputes shall be considered within the applicable jurisdiction at the location of Yandex, unless otherwise expressly provided in the effective laws of the Russian Federation.
12. Notices and Information Exchange
12.1. The Parties recognize the legal effect of electronic correspondence, electronic messages and text copies contained in electronic documents (files) sent by the Parties, provided that such correspondence is maintained as provided for in this Clause.
12.2. Yandex may send any notice, communication or document to the Software Product Owner by email to the address of the Software Product Owner set out in Partner Portal or via sending any notice, communication or document via Partner Portal.
12.3. The Software Product Owner may send any communication or notice to Yandex by email to the address set out on the Website or through the feedback forms available to the Software Product Owner on the Website or Partner portal and designed to send different categories of messages.
12.4. In the case of information exchange through the Partner Portal is within the control and responsibility of the Software Product Owner who shall independently monitor the appearance and change of information, notifications and documents in the Partner Portal.
12.5. The date of receipt of the respective communication so emailed shall be the date on which it was sent, as fixed in the sender's electronic mail.
12.6. The Parties acknowledge that exchange of documents, including letters, notices, communications and other correspondence transmitted by any of the means set out in this Clause shall have evidential weight, including for the resolution of disputes between the Parties in court.
13. Final Provisions
13.1 Execution of this Agreement may not be construed as creating any agency relationship, or a partnership, or a joint venture, or employment or other relationship between the Software Product Owner and Yandex not expressly provided for herein.
13.2. If one or several provisions of this Offer or of any of the documents referred to herein is/are held to be invalid or void, this shall not affect the validity and enforceability of the remaining provisions of this Offer or of the documents referred to herein.
13.3. Yandex's failure to act in the case of a breach by the Software Product Owner or its representative of any provision hereof shall not deprive Yandex of its right to protect its interests in the future nor shall it constitute a waiver by Yandex of its rights in respect of any such or similar breaches in the future.
13.4. The Software Product Owner may not assign its rights and obligations hereunder without Yandex's prior written consent.
13.5. The Software Product Owner acknowledges and agrees that Yandex may transfer (assign) to third parties its monetary claims against the Software Product Owner and provide the information on the Software Product Owner and its outstanding obligations as required for such purpose.
13.6. If a Party's name, legal status, address and/or bank details change and in the case of any other changes that might affect the performance of this Agreement, the respective Party shall notify thereof the other Party within Five (5) business days of the effective date of such changes.
14. Details of Yandex
Company name: Yandex.Cloud LLC
Place of business: 16, Lva Tolstovo str., Office 528, Moscow, Russia 119021
Postal address: 82 Sadovnicheskaya st., Building 2, Moscow, 115035, Russia
Registration number: 1187746678580
Tax number: 7704458262
Account No 40702810900000082868 in AO Raiffeisenbank
BIC: 044525700 Сorrespondent account No 30101810200000000700
Phone; fax: (495) 739-70-00; (495) 739-70-70
Address on the Internet: https://yandex.ru/legal/marketplace_offer
Data of publication: 20.04.2020
Effective Date: 20.04.2020
Appendix No 1
Placement of the Software Product Product on terms of BYOL
1.1. Yandex shall place the Software Product Product, which was previously granted by the Software Product Product Owner to Users on the terms of non-exclusive license, on the Marketplace. The Software Product Product Owner shall, in its turn, perform services on enhancing the functionality of the Marketplace by providing the access to the Software Product Product.
1.2. The Appendix No 1 does not imply any financial relationships and settlements between the Parties in accordance or related to agreements reached herein. Cooperation under the Appendix No 1 is carried out exclusively in the interests of each of the Parties.
1.3. Parties shall perform their obligation under Clause 1.1 herein within the term of the Appendix No 1.
1.4. The Appendix No 1 is an integral part of the Offer, the terms of which apply to the relations of the Parties arising under Appendix No 1 in the non-contradictory part.
Appendix No 2
Placement of the Software Product Product distributed under the terms of Open-Source License
1.1. The Software Product Product Owner has the right to place the Software Product Product distributed under the terms of Open-Source License, on the Marketplace.
1.2. Open-Source License shall mean an open-source license, a statement granting anyone the right to use the associated creative works on a royalty-free basis, or any other form of a license agreement or the rightholder’s volition aimed at free distribution and use of the associated creative works without any additional approval by or payment to the rightholder, including, but not limited to GNU GPL, GNU LGPL, GNU AGPL, MIT, Apache, BSD, MPL, EPL, CDDL, ODbL, Creative Commons.
1.3. Placing the Software Product Product distributed under the Open-Source License, the Software Product Product Owner represents and warrants that the placement of the Software Product Product in accordance with the Clause 1.1 of the Appendix No 2, does not contain a requirement and in any case will not:
1.3.1. disclose or provide any elements of derivatives of the Marketplace to any third parties;
1.3.2. distribute on a royalty-free basis and/or make publicly available instances or copies of derivatives of the Marketplace; and/or
1.3.3. grant rights to modify or process derivatives of the Marketplace on a royalty-free basis and/or to the general public;
1.4. The Appendix No 2 does not imply any financial relationships and settlements between the Parties in accordance or related to agreements reached herein. Cooperation under the Appendix No 2 is carried out exclusively in the interests of each of the Parties.
1.5. The Appendix No 2 is an integral part of the Offer, the terms of which apply to the relations of the Parties arising under Appendix No 2 in the non-contradictory part.
Previous version of the document: https://yandex.ru/legal/marketplace_offer/03042020