Raidix, LLC, a company incorporated under the laws of the Russian Federation, main state registration number 1117847161981, having its registered address at: Russia, St. Petersburg, 199178, Smolenka River embankment, 33 A, represented by Yelena Gabriel, acting under the Power of Attorney No. 03-18 dated January 09, 2018, hereinafter referred to as the Licensor, and
Any company or person, hereinafter referred to as the Licensee, intending to purchase ordinary (non-exclusive) licenses (hereinafter, the Licenses) to use the Computer Software (hereinafter, the Software) to which the Licensor holds exclusive rights,
jointly referred to as the Parties, and separately referred to as the Party, have entered into this Agreement, hereinafter referred to as the Agreement, as follows:
1. SUBJECT MATTER OF THE AGREEMENT
1.1. The Licensor hereby undertakes to grant the Licensee with ordinary (non-exclusive) licenses (hereinafter, the Licenses) to use the Software Software) specified in Invoices issued by the Licensor under the Licensee’s purchase orders. The Licensee agrees to pay the price for the Licenses to the Licensor in accordance with the terms and conditions of the Agreement. The number of Licenses, the price for the Licenses, types of the Licenses and other details shall be specified in Invoices issued by the Licensor under the purchase orders of the Licensee.
1.2. The Licensor is the owner of the exclusive rights to the Software (Rightholder).
1.3. The ways of using the Software Licenses to which are granted to the Licensee according to this Agreement:
1.3.1. reproduction of the Software (recording to the computer memory), limited to the right to install, copy (record to computer memory) and run the Software, as well as using the functionality of the Software as a part of a software-hardware complex of a data storage system, in accordance with the terms of this Agreement;
1.3.2. granting licenses to use Software as described in the Clause 1.3.1 to third parties. Any third parties which use the Software must sign a license agreement that must necessarily contain all the conditions and restrictions stipulated in the Clauses 4 and 6 of the present Agreement.
1.4. The Licensor reserves all rights except those expressly granted to the Licensee by this Agreement, including the exclusive right to the Software. This Agreement does not grant to the Licensee any rights to use the trademarks or service marks of the Licensor. The Software is protected by copyright and other laws and international treaties. The Software is licensed, not sold.
1.5. Territory to provide non-exclusive rights to the Software: specified in Invoices issued by the Licensor.
1.6. The Licensee gets non-exclusive rights to use the Software within the entire term of the Licensor’s exclusive rights to the Software, provided that the Licensee complies with the terms and restrictions of the present Agreement.
2. PAYMENT TERMS AND CONDITIONS
2.1. The Licensee shall send a purchase order to the Licensor by e-mail specifying the License configuration types and quantity of Licenses of each type. Under the purchase order the Licensor issues an Invoice containing all relevant payment instructions and indicating the price for the Licenses. The Licensee is aware that issuing the Invoice is the Licensor’s right and not its obligation. The Licensor determines the prices for the Licenses unilaterally.
2.2. The Licensee shall pay the Invoice not later than 10 (ten) working days from the invoice issue date. For the purposes of the present Agreement working days shall be Monday to Friday, excluding public holidays in the Russian Federation.
2.3. All payments to be made by the Licensee to the Licensor under the Agreement are stated exclusive of value added tax (VAT) and other taxes and duties.
2.4. If under the applicable law granting of the right to use the Software is subject to VAT or any other tax or necessary payment, and the Licensee is required to withhold such VAT, other tax or necessary payment from the amounts to be paid to the Licensor, the amount of payment shall be increased by the respective amount of VAT, other tax or necessary payment. The increased amount of payment shall be regarded as including VAT, other tax or other necessary payment. VAT, other tax or other necessary payment amounts shall be withheld and remitted to the corresponding budget by the Licensee.
2.5. The currency of price and payments under the Agreement is US Dollars.
2.6. The Licensee bears responsibility to pay in time all banking commissions incurred by the fulfillment of the Agreement.
2.7. The Invoice payment date shall be deemed to be the date on which the money funds in the full amount of payment are credited to the Licensor’s bank account.
3. LICENSE TRANSFERRING ORDER
3.1. Within 7 (seven) working days from the Invoice payment date, provided that the Licensor has received an e-mail request from the Licensee, the Licensor transfers to the Licensee via e-mail the login and password to access the FTP-server ftp.raidixstorage.com or other agreed resource for downloading the files necessary for the Software installation (distribution package and documentation to the Software). After downloading the files and installing the Software the Licensee sends an e-mail request to the Licensor specifying the specific configuration of the hardware on which the Software has been installed.
3.2. Within 2 (two) working days since receiving of the abovementioned request of the Licensee the Licensor provides to the Licensee a license file confirming the authenticity of the License, in which the system key and response to it are specified.
3.3. Access to the FTP-server or other agreed resource, request and transfer of the license file shall be performed via the Licensor’s e-mail: email@example.com.
3.4. Within 5 (five) working days since the transfer of the license file, the Licensor sends to the Licensee 2 original copies of the Act of rights transfer via post, by courier, or hands them in to the Licensee’s representative. Within 15 (fifteen) working days upon receiving of the Act the Licensee shall sign the Act and send one signed original copy back to the Licensor, or within the same time period of time send a written motivated refusal to sign the Act. If within the abovementioned time period none of these documents are sent to the Licensor, the rights to use the Software shall be considered granted and the Act shall be considered signed by both Parties.
3.5. The Licensee obtains the right to use the Software since the signing of the Act by both Parties.
3.6. The Licensee is aware that the Software is subject to export laws. The Licensee undertakes independently and on its own account to comply with the export control legislation, including obtaining necessary licenses and permits from competent authorities (OFAC, BIS, etc.).
4. SOFTWARE USING AND RESTRICTIONS
4.1. The Licensee shall not perform itself and not let any individual person or legal entity perform the following activities:
4.1.1. disassemble and/or decompile (convert the object code into the source text) the Software, except for the cases when an opportunity to perform such actions is expressly provided for by the applicable legislation;
4.1.2. modify the Software, including making changes to the object code of the Software, except for those changes which are made by the means included in the Software and described in the documentation to the Software;
4.1.3. create conditions for the usage of the Software by third parties which are not entitled to use the Software;
4.1.4. distribute the Software. Distribution of the Software shall mean providing the third parties with the access to the Software reproduced in any form (in total or in part, including the distribution package, the documentation), including via network and by any other means, as well as by means of sale, rental, including any deployment of the Software (in total or in part) available for the general public. This condition does not apply to the right to use the Software according to the Clause 1.3.2. of the Agreement.
4.2. The Licensee shall not use and not allow the usage of the Software by third parties in any case if any failure of the Software may lead to death, injury, significant physical harm, or damage to the environment, including, but not limited to, the usage of the Software to control the functioning of:
4.2.1. any nuclear plant equipment;
4.2.2. aircraft navigation equipment, communication and flight control systems;
4.2.3. air traffic management systems;
4.2.4. public transport control systems;
4.2.5. medical equipment;
4.2.6. armament systems.
4.3. The order and frequency of the Software updates release are determined by the Licensor at its discretion unilaterally. The Licensor may at any time at its sole discretion, without notice and without compensation of any losses and costs to the Licensee discontinue the release of updates to the Software and/or its specific versions and/or modules. In this case the Licensee retains the right to use such Software Licenses to use which have been already granted to the Licensee, in the ways and subject to the conditions provided for in this Agreement.
4.4. In the event of release of new versions of the Software and/or new modules of the Software, the Licensor assumes no obligation to ensure the compatibility of previous versions of the Software and/or Software modules, the License to use which has been provided to the Licensee, with new versions of the Software and/or new modules of the Software.
4.5. The Licensor may, independently or through the engagement of third parties, monitor the using the Software through methods not contradicting the law, to make sure that the Software is used in compliance with the conditions and restrictions of this Agreement. The Licensee is required to provide to the Licensor a report on the use of the Software at its request, not later than 10 (ten) working days from the date on which the relevant request was received, or in accordance with the applicable law shall be deemed received by the Licensee. The Licensor is also entitled to demand access to the equipment where the Software is installed, to check the compliance with the conditions and restrictions of this Agreement. The Licensee is obliged to provide the said access within a term agreed with the Licensor, but not later than 10 (ten) working days from the date on which the relevant request of the Licensor is received, or shall be deemed received in accordance with the applicable law.
4.6. One License entitles to use the Software on one copy of the hardware on which the Software can be installed, on the terms of this Agreement.
5. CONFIDENTIAL INFORMATION
5.1. Each Party shall ensure protection against unauthorized use, dissemination, copying or publication of any Confidential Information of the other Party, which becomes available in the course of fulfillment of the obligations under the present Agreement, in accordance with the Non-Disclosure Agreement (Annex No. 1 to the present Agreement).
6. LIMITATION OF WARRANTIES AND LIABILITY OF THE PARTIES. FORCE-MAJEURE
6.1. The Software is a complete model (serial) solution with the possibility of customization within the existing functionality.
6.2. The total liability of the Licensor under this Agreement or in connection therewith, regardless of the reasons for its occurrence, shall be limited to the amount of the proved actual damage, but not exceeding the total price for the relevant Licenses paid by the Licensee pursuant to this Agreement. Lost profit shall not be reimbursed in any case.
6.3. IN ANY CASE, THE LICENSOR SHALL PROVIDE THE LICENSEE WITH THE SOFTWARE “AS IS”. THE LICENSOR DOES NOT GUARANTEE THAT THE SOFTWARE IS ERROR-FREE, AND SHALL NOT BE HELD LIABLE FOR ANY DIRECT OR INDIRECT LOSSES (DAMAGES), INCLUDING, BUT NOT LIMITED TO: LOST PROFIT, LOSS OF PROPERTY, LOSS OF CONFIDENTIAL INFORMATION INCURRED BY THE LICENSEE OR A THIRD PARTY AS A RESULT OF THE USE OF THE SOFTWARE, INCLUDING AS A RESULT OF POTENTIAL ERRORS OR MISPRINTS CONTAINED THEREIN, EVEN IF THE LICENSOR HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH ERRORS OR MISPRINTS. THE LICENSOR DOES NOT GUARANTEE THAT THE SOFTWARE WILL COMPLY WITH THE LICENSEE’S REQUIREMENTS AND DOES NOT GUARANTEE ITS COMPATIBILITY WITH THE SOFTWARE AND HARDWARE MANUFACTURED BY OTHER VENDORS.
6.4. The Licensee represents and warrants that neither it, nor its affiliates are included into sanctions lists of the UN, European Union, OFAC (USA), BIS (USA) or any other sanctions lists (hereinafter, the Sanctions lists).
6.5. The Licensee notifies that transferring the rights to use the Software of the Licensor to any persons or legal entities included into the Sanctions lists, or for purposes prohibited by regulations of OFAC, BIS, EU, UN or any other competent authorities or international organizations is not planned.
6.6. In case the Licensor gets information from any source that the Licensee (its counterparties and/or affiliates) are included or will be included into the Sanctions lists, or are planning to grant the rights to use the Software of the Licensor in any way to any third parties included into the Sanctions lists, the Licensor is entitled to stop performing its obligations under this Agreement immediately, unilaterally and out of court. In this case the Licensee cannot claim any damages, expenses, losses, lost profit, penalties from the Licensor. The Licensor shall within a reasonable period of time give a motivated notice of such termination of its obligations under the Agreement to the Licensee.
6.7. The Parties shall not be held liable for non-performance or improper performance of their obligations in case of occurrence of the force-majeure circumstances. The latter shall mean extraordinary events which did not exist at the moment of signing of this Agreement, which occurred beyond the Parties’ will, and which the Parties could not prevent, as well as all other events and circumstances which will be recognized as force-majeure circumstances by a competent authority (e. g. Chamber of Commerce and Industry) or, in case of a dispute, by a competent court. For the purposes of the present Agreement force-majeure circumstances shall include, but not be limited to: all and any acts of God, acts of government, parliament and other state bodies or international organizations (including sanctions, trade restrictions, export control regulations, embargoes), riots or civil disturbances.
6.8. For the period of existence of force-majeure circumstances exempting from the liability, the Parties’ obligations shall be suspended, sanctions for non-performance of the contractual obligations shall not apply, and the term for performance of the contractual obligations shall be extended for the period corresponding to the existence of a circumstance occurred and to the reasonable term necessary in order to mitigate its effects.
6.9. The Party for which it has become impossible to perform its obligations under the Agreement shall immediately notify the other Party about the occurrence of the said circumstances, but in any case no later than 10 (ten) working days upon the moment when the communication means become available. Failure to notify or untimely notification about the occurrence of the force-majeure circumstances shall deprive the breaching Party of the right to be exempt from the liability.
6.10. If the force-majeure circumstances exist continuously for more than 6 (six) months, either of the Parties may terminate this Agreement unilaterally out of court by giving a written notice to the other Party.
7. AGREEMENT DURATION AND TERMINATION
7.1. The Agreement shall be published at the Licensor’s website http://www.raidix.com/license-agreement/. The Agreement shall come into force after paying the Invoice by the Licensee and shall be valid throughout the entire term of the Licensor’s exclusive rights to the Software, provided that the Licensee complies with the terms and restrictions of the present Agreement. The Licensor may at any time and without notification change the terms and conditions of the present Agreement unilaterally by publishing the new version of the Agreement at the abovementioned website.
7.2. In the event of breach by the Licensee of the conditions and restrictions of this Agreement, as well as failure to provide to the Licensor, at its request, a report on the use of the Software or access to equipment where it is installed, the Licensor has the right to terminate this Agreement unilaterally and without judicial procedures, by notifying the Licensee of such termination in writing and also to demand full compensation of damages and property losses caused by such breach.
8. DISPUTE RESOLUTION
8.1. All disputes and disagreements that may arise between the Parties shall be settled through negotiations.
8.2. The complaint procedure for settlement of disputes and disagreements arising out of this Agreement or in connection therewith is mandatory. A complaint shall mean a written requirement of the one Party addressed to the other Party to the Agreement to perform certain actions or to refrain from their performance. The complaint shall be signed by an authorized person. The complaint response time shall be equal to 10 (ten) working days upon the moment when the complaint has been received or is deemed to have been received by the addressee pursuant to the applicable legislation. In case of a full or partial refusal to satisfy the complaint or if the Party which had submitted the complaint has not received a response within the established time period, the complaint procedure for disputes settlement shall be deemed to be complied with.
8.3. All disputes, controversies or claims arising out of this Agreement or in connection therewith, including those concerning its entry into force, conclusion, amendment, performance, breach, termination or validity, shall be finally settled by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation according to its applicable rules and regulations.
9. FINAL PROVISIONS
9.1. The Agreement shall be governed by and construed in accordance with the laws of Russian Federation. Relations of the Parties, arising out of the Agreement or associated therewith but not regulated by the Agreement, shall be regulated by the legislation of the Russian Federation (applicable law) without reference to the rules of conflict of laws.
9.2. The Agreement shall supersede all prior oral and written agreements, contracts, and memorandums of understanding of whatever form between the Parties with respect to the subject matter of the present Agreement.
9.3. The Parties shall accept as binding all notifications and other documents sent in connection with the performance of this Agreement from/to email addresses of the Parties.
9.4. In case of change of address or bank details, each Party shall notify the other Party within 5 (five) working days.
9.5. The Software may contain programs that are available under the GNU General Public License or other similar Open Source licenses, which, among other rights, permit the licensee to copy, modify and redistribute certain programs, or parts thereof, and get access to the source code («Open Source Code Software»). If such a license requires the provision of the source code to the licensee, to which the Software is provided in the executable binary code format, the source code is made available upon a written request to the Rightholder or is accompanied with the Software. If any license to Open Source Code Software requires that the Rightholder provides rights to use, copy or modify the Open Source Code Software that are broader than the rights granted by this Agreement, such rights shall prevail over the rights and restrictions stipulated in this Agreement.
9.6. The Agreement is executed in two original copies, one copy for each Party.
9.7. Attached to the Agreement and comprising an integral part of it are:
• Non-Disclosure Agreement (Annex No. 1).
10. ADDRESS AND PAYMENT DETAILS OF THE LICENSOR
Russia, 199178, Saint-Petersburg, Smolenka River Embankment, 33 A
Taxpayer’s Identification Number 7801546203
Account No. 40702840403000001140
Bank address: 129090, Moskva, Troitskaya str., d. 17/1
SWIFT — RZBMRUMM
Intermediary Bank Citibank NA
Bank address: 111 Wall Street, New York, NY 10043, USA
SWIFT: CITI US 33,
CHIPS Routing No: 0008
Correspondent account: 36343873
Annex No. 1
to the License Agreement
1. Parties (for the purposes of the present Annex):
The Party disclosing Confidential information is hereinafter referred to as the “Disclosing Party”.
The Party receiving Confidential information is hereinafter referred to as the “Receiving Party”.
2. Definition of Confidential Information: “Confidential Information” shall mean any information disclosed in any form whatsoever (including, but not limited to: in writing, orally or in the form of samples, models, computer programs or otherwise), that is not available in the public domain and is conspicuously marked as being «Trade secret» and/or “Confidential” or by any other appropriate legend. Confidential Information may include information (provided that such information is clearly marked as confidential) concerning:
2.1. Intellectual property, including but not limited to: software, know-how, inventions, hypotheses, research and conclusions related thereto, as well as the methods, processes, procedures, analysis techniques, technologies used in connection therewith;
2.2. Any documentation transferred by the Disclosing Party to the Receiving Party, including but not limited to: blueprints, specifications, performance data, technical and engineering data, test data and test results, and the status and details of research and development of products and services;
2.3. Structural subdivisions, manufacturing processes of the Disclosing Party;
2.4. Prospective and existing customers, suppliers, other contracting parties of the Disclosing Party, including but not limited to: names and other identifying information about the contracting parties and their representatives, the data provided by them, as well as the type, quantity and specifications of products, works, services, rights to use software purchased by the contracting parties of the Disclosing Party under any types of agreements; as well as negotiations of the Disclosing Party with its contracting parties;
2.5. Business operations including but not limited to: the details of internal personnel, financial information, purchasing and internal cost information, and the manner and methods of conducting business;
2.6. Marketing and development plans, including but not limited to: the data concerning price and cost of products, works, services, licenses to software, price and fee amounts, pricing and billing policies, possible discounts, forecasts, as well as future business plans and potential strategies which have been or are being discussed;
2.7. Any other issues, provided that the information concerning them is clearly marked as confidential by the Disclosing Party.
3. The information concerning the prices for licenses to use the Software and/or the order of their determination and/or alteration shall be in any case considered confidential regardless of the way the Licensee receives it.
4. The information shall not be considered confidential if such information meets at least one of the following criteria:
4.1. Is available in the public domain, including published in the Internet by the Disclosing Party or by any third party;
4.2. Was lawfully acquired by the Receiving Party before or independently of its disclosure by the Disclosing Party;
4.3. Was created for the Disclosing Party by a third party or by the Disclosing Party itself without getting access to the Confidential Information of the Receiving Party.
5. If the Receiving Party gets an official requirement to disclose the Confidential Information under an act of a court or any other state body, the Receiving Party shall within a reasonable period, if not prohibited by law, notify the Disclosing Party about the disclosure. The abovementioned disclosure under an act of a court or any other state body shall not be considered as a breach of the present Non-Disclosure Agreement and shall not result in any form of liability.
6. Standard of Care: The Receiving Party shall take all reasonable measures necessary and advisable to prevent unauthorized disclosure of the Confidential Information to third parties and/or using the Confidential Information by third parties. The measures taken should be no less significant than the measures taken by the Party to protect its own confidential information of such kind.
7. No Disclosure: Within the term of the present Non-Disclosure Agreement the Receiving Party shall not disclose the Confidential Information to any third parties, directly or indirectly, in total or in part, in any form and by any means, not copy or reproduce the Confidential Information without prior written consent of the Disclosing Party, excluding the cases when the abovementioned actions are stipulated by this Non-Disclosure Agreement or are necessary to perform the obligations under this Non-Disclosure Agreement or any other agreements between the Parties, as well as under the applicable legislation.
8. The Confidential Information may be disclosed to the Receiving Party’s employees on a “needs to know” basis only, and only on condition that such employee has previously undertaken in writing the obligations not to disclose the Confidential Information similar to the obligations stipulated by this Non-Disclosure Agreement.
9. No Warranty: ANY CONFIDENTIAL INFORMATION DISCLOSED BY A PARTY UNDER THIS NON-DISCLOSURE AGREEMENT IS PROVIDED “AS IS”. NO WARRANTIES ARE MADE CONCERNING THE DISCLOSED CONFIDENTIAL INFORMATION, INCLUDING, BUT NOT LIMITED TO ITS COMPLETENESS AND RELIABILITY.
10. Compensation of Damages: The Parties hereby agree that (a) disclosure of the Confidential Information to any third Parties, except as permitted by this Non-Disclosure Agreement, will constitute a material breach of the Disclosing Party’s rights and interests; and (b) damages suffered by the Disclosing Party as a result of a breach of the present Non-Disclosure Agreement can be substantial. Accordingly, the Parties agree that the Disclosing Party shall be entitled to compensation of actual damages under a court action, as well as to any other legal remedies allowed by the applicable legislation. Lost profit shall not be recovered under any circumstances.
11. Return of Confidential Information: Upon a written request of the Disclosing Party, provided that such request is received by the Receiving Party within 30 (thirty) calendar days after the expiration of this Non-Disclosure Agreement, the Receiving Party shall promptly return to the Disclosing Party all originals, copies and translations of all the documents and materials containing the Confidential Information in its possession. Any and all costs associated with the returning of the Confidential Information by the Receiving Party to the Disclosing Party shall be entirely borne by the Disclosing Party and reimbursed to the Receiving Party.
12. Term and Termination: This Non-Disclosure Agreement enters into force upon signing by both Parties and shall remain in force throughout the entire validity period of the License Agreement and 3 (three) years after the termination of the License Agreement regardless of the reasons for such termination. After the expiration of this term, the Parties’ obligations arising from the present Non-Disclosure Agreement shall terminate.