ISPsystem SOFTWARE LICENSE AGREEMENT #276657

“17” January 2017

This Agreement contains terms and conditions of granting by JSC ISPsystem (hereinafter – ISPsystem, the Licensor) duly represented by Chief Executive Officer P.A.Guralnik, acting pursuant to the Articles of Incorporation, non-exclusive license on software, for which exclusive rights are owned by ISPsystem, to Company LTD (hereinafter – «the Licensee») duly represented by CEO John Smith, acting pursuant to the , both collectively referred to as «the Parties» and individually – «the Party»

The given document is not a contract of adhesion. The Parties upon their mutual agreement may change the terms and conditions stipulated herein. ISPsystem has a right to refuse to enter into this Agreement under the terms and conditions provided herein without assigning any reason of such refusal.

Entering into this Agreement shall be made via the interface of the website owned by ISPsystem by means of cumulative physical acts of accepting the terms and conditions of the license agreement and exchanging electronic messages, performed by the Licensee, which means sending an offer by one Party and accepting it by the second Party. The exchange of electronic messages with the use of login and password through the personal account by a person willing to enter into this Agreement shall be treated as the exchange of documents authenticated by the equivalent of a handwritten signature.

This Agreement may be executed in written form upon the additional request from the Licensee.

1. BASIC TERMS AND DEFINITIONS

1.1. “Licensor” is ISPsystem, the developer and holder of exclusive rights to the Software Products, which has legal authority to transfer the right of use and the right of distribution of the Software Products under this Agreement according to the terms and conditions stipulated below.

1.2. “Licensee” is a person acting pursuant to the legislation of its place of residence, which has legal authority to enter into legal relationships with the Licensor under this Agreement. The Licensee obtains from the Licensor the right to use the Software Products under the terms and conditions of the ordinary (non-exclusive) license to the extent of this Agreement, including the right to sublicense the Software Products (i.e. to grant the right of use of the Software Products to a third party) under the terms and conditions provided in this Agreement.

1.3. “Agreement” is the given license agreement with all supplements (annexes) thereto.

1.4. “Software Product” is a software application (software system) which exclusive rights are owned by the Licensor. The Software Products are placed on the ISPsystem website.

The list of the Software Products the non-exclusive license to which may be granted under this Agreement and their description, including prices and terms of the licenses, are directly provided in Annex #1 thereto. The list of the Software Products is also placed on the ISPsystem website for informative purposes only.

1.5. “Activation Keys” is the element of the digital rights management system used by ISPsystem for purposes of protection of the Software Products against unlawful use, as well as for purposes of granting the right to use the Software Products under the terms of the non-exclusive license within the scope of this Agreement.

1.6. “ISPsystem website” is a set of webpages placed in the information and telecommunication network of Internet and consolidated by the unified address space of the domain “ispsystem.com” and all its subdomains.

1.7. “Order of the Software Products” is a set of cumulative physical acts of accepting the terms and conditions of the license agreement and exchanging electronic messages, performed by the Licensee, which means sending an offer by one Party and accepting it by the second Party. The abovementioned offer shall contain the terms and conditions of granting a license for the Software Product, whereas its acceptance shall express appropriate will of the Licensee to settle a deal under the terms and conditions provided. The Order of the Software Products shall contain the information about:

  • a Software Product chosen by the Licensee and its term of use which equals to the license period of the Software Product for which the Software Product shall be granted to the Licensee;
  • the Licensee’s name or the company name;
  • the Licensee’s principal place of business;
  • the registration number of the Licensee if applicable according to the Licensee’s local legislation;
  • taxpayer number if applicable according to the Licensee’s local legislation;
  • the Licensee’s e-mail address;
  • other contact details if requested by the Licensor and which the Licensee considers possible to provide.

1.8. “Technical Support” is consultation provided by ISPsystem to the Licensee regarding the Software Product installation, settings, and usage.

1.9. “Incident” is an outstanding question which results in a situation when the Licensee asks the Licensor for Technical support.

1.10. “Software Products distribution right” (“sublicensing right”) is distribution of the Software Products by the Licensee through sublicensing agreements.

1.11. “Support Package” (of Incidents) is a certain quantity of Incidents (requests to the Licensor) which the Licensee may additionally purchase under the terms and conditions stipulated in Annex #3 hereto.

1.12. “Software Product Update” is a set of improvements of the current version of the Software Product developed by the Licensor for the purpose of providing uninterrupted performance, bugs elimination, and modernization of the current version of the Software Product.

1.13. “Annual Turnover” is a sum of expenses of the Licensee for the Licensor’s Software Products, purchased directly from the Licensor, through the Licensor’s website, over the last year (365/366 previous days).

1.14. “Additional Content” is software (including but not limited to modules, plugins, and extensions, which may be connected to the Software Products dynamically, or software operating without obligatory integration and connection to the Software Products (standalone software) although such functionality may be allowed by the given software) for which the rights may be purchased by the Licensee at extra charge or without it as stipulated in Annex #4(A) hereto and according to the terms and conditions that may apply in respect of the certain Additional Content if applicable.

1.15. “Update Package” is a set of updates of the Software Product purchased under the terms of the lifetime license.

2. SUBJECT OF THE AGREEMENT

2.1. Subject to the terms and conditions of this Agreement the Licensor hereby grants to Licensee the non-exclusive right to use the the Software Product (the Software Products) for the consideration mentioned in Annex #1 hereto within the scope of this Agreement.

The Licensee may also be granted with the rights to the Additional Content under this Agreement including the given Para 2 and Annex #4(A) hereto.

Purchasing the Additional Content is subject to general terms of the given Para 2 and this Agreement unless otherwise indicated in Annex #4(A).

2.2. The list of the Software Products to which a non-exclusive license may be granted under the terms and conditions of this Agreement, is provided in Annex #1 hereto. The list of the Additional Content is provided in Annex #4(A) hereto or in the corresponding appendixes to Annex #4(A). The list of the Additional Content available for order may also be placed by the Licensor on the ISPsystem website and may be changed periodically.

After the Licensee entered into this Agreement and the new Software Product was developed by the Licensor, purchasing this Software Product shall be made by signing a supplemental agreement to this Agreement, unless a separate license agreement is required. Whenever the separate license agreement is needed this decision shall be made solely by the Licensor.

2.3. All actions performed by the Parties, such as making the Order of the Software Products, Technical Support by the Licensor, and all other actions related to the foregoing, shall be made in the Licensor’s automated billing system on the ISPsystem website.

Hereby the Parties confirm that all information available within the Licensor’s automated billing system is irrevocable and incontestable immediately upon its deposition by either the Licensor or the Licensee.

Neither of the Parties shall appeal to the information different from the information located within the Licensor’s automated billing system as a basis of the Party’s rights and liabilities according to this Agreement, unless the changing of information was made upon prior consent of the Parties. The abovementioned consent could be made, in particular, through the exchange of electronic messages between the Parties.

In case of any technical issue in the Licensor’s automated billing system, the Licensor shall recover the data and information as it was before such issue arose and shall make all necessary reconciliations of payments with the Licensee, if required.

2.4. Under this Agreement the Licensee is the owner of the rights to use and/or to distribute a non-exclusive license for the Software Products, subject to the terms and conditions provided hereof (the right to sublicense). In terms of the Additional Content the Licensee may be either the owner of the rights to the certain Additional Content and be allowed to offer it upon the corresponding license agreements with the right holders, or the reseller that shall not directly transfer the rights to the Additional Content.

2.5. The Licensee is entitled to use and/or to distribute the Software Products worldwide. This term may be limited for the rights to the Additional Content if it is determined by the corresponding right holders.

The non-exclusive license period for the given Software Product starts from the date of activation of the License within the Licensor’s automated billing system and lasts until the non-exclusive license period is expired in accordance with Annex #1 hereto.

2.6. The Activation Key for the Software Product may be activated by the Licensee immediately upon completion of payment for the Software Product via the interface of the Licensor’s automated billing system on the ISPsystem website.

2.7. License payment for the Software Product shall be settled as per the Licensor’s invoice. The Software Product prices are set in Euro in Annex #1 hereto. The prices for the Additional Content are set in Annex #4(B) hereto or in the corresponding section of the ISPsystem website where the list of the Additional Content available is located. The payment shall be settled in Euro.

2.8. All electronic documents, notifications, and expressions of will made or executed remotely via the interface of the Licensor’s automated billing system and communication channels are deemed by the Parties as duly executed in written form, unless otherwise provided herein.

2.9. This Agreement is concluded due to the fact that both Parties conduct business activities. The Licensee shall not enter into this Agreement if the Licensee’s aims are not connected with its business activities (for instance, with any personal, family, domestic, or other daily needs).

2.10. For the purposes of protection of the rights for intellectual activity results, receipt of statistical data, performance of the obligations to the Licensee, as well as for the purposes of ensuring safety and proper performance of the Software Products, the Licensor shall have the right to use technical tools and methods of protection of intellectual activity results and information (digital rights management software). Such measures also may be applied to the Additional Content by the Licensor or the corresponding right holders.

2.11. The license for the Software Product is indivisible.

2.12. The license for the Software Product shall also apply to updates, additions, and additional components which may be provided or access to which may be granted by the Licensor, in case when the right to use such updates, additions, and additional components is not transferred on the basis of separate agreements (for instance, when the abovementioned Updates are provided for additional consideration).

2.13. If the terms and conditions of any supplemental agreement such as annexes, appendixes, etc. are in direct contradiction with provisions of this Agreement, the provisions of this Agreement shall prevail. This term shall not be applied to Annex #4(A) hereto, as its terms and conditions may be different from the terms and conditions stipulated in this Agreement. However, all other terms and conditions that are not in direct contradiction with this Agreement shall be treated by provisions stipulated in this Agreement.

If the Licensee has reasonable doubts regarding the terms and conditions of Annex #4(A) that may contradict with this Agreement, the Licensee shall send a request for clarification to the Licensor.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. When the Licensee is interested in distribution of the Software Products, the foregoing distribution shall be made subject to the terms and conditions of sublicensing agreements between the Licensee and the third parties. The Licensor hereby gives his consent to conclusion of any sublicensing agreement; separate consent ad hoc in written form is not required. The Licensee may conclude any further sublicensing agreements subject to the terms and conditions set forth solely by the Licensee, including all applicable limitations and other terms related to the Software Products distributed, unless otherwise stipulated in this Agreement.

The Licensee may set forth prices for the Software Products for the third parties (Clients) in sublicensing agreements, solely at the Licensee’s discretion.

Notwithstanding the actual price for the Software Products set in sublicensing agreements with the third parties, the Parties hereby confirm and agree that the Licensor shall have no right to receive any one-time and/or recurrent payments for the sublicense (royalty payments) except for the payment for the non-exclusive license purchased by the Licensee.

3.2. The Licensee shall be granted the rights to use the Software Products as follows:

3.2.1. the right to install the Software Product by copying it in the computer memory;

3.2.2. the right to make the Software Product available to the public to the extent that any person or person chosen by the Licensee would have access to the Software Product via the information and telecommunications network including the Internet; the Licensee is entitled to make the Software Product available to the public only by means when the third parties (Clients) would have access only to visible images generated by the Software Products and/or when the Client has only the opportunity to interactively communicate with the functional part of the Software Product;

3.2.3. the right to use the Software Products only in accordance with their purposes; use of the Software Products for the purposes different from its functionality as well as their technical description and guidelines provided by the Licensor shall be treated as a material breach of this Agreement (such guidelines could be presented, inter alia, in documentation and Auxiliary materials).

3.3. The right to use the Software Products shall be granted to the Licensee considering the following limitations:

3.3.1. The Licensee shall not modify the Software Product, i.e. shall not make any changes other than:

  • changing the Software Product settings or making similar changes of the Software Product via the user interface of the Software Product by means described in documentation (Auxiliary materials);
  • adaptation, i.e. making changes which are made only for the purposes of the Software Product performance on the Licensee’s facilities or when the Software Product is under control of the Licensee’s software, without regard to means of the foregoing adaptation;
  • Installation of the Software Product updates developed by ISPsystem.

3.3.2. While using the Software Product (whatever the use is) the Licensee shall not pursue any action resulting in changing or deleting any visible images of the trade mark, service mark, trade name or copyright symbol generated by the Software Product, unless otherwise was agreed by the Licensor. Any actions resulting in difficulties with identification of symbols mentioned herein, particularly, its dimming or size changing, are forbidden.

Changing of symbols mentioned in this Para is allowed only by means of the Software Product interface.

3.3.3. The Licensee shall not:

  • adapt, decompile, disassemble, or modify the Software Products;
  • change the structure of the Software Products and/or data in their data bases and its information, unless otherwise is allowed by the Software Products functionality and/or by the Software Products documentation;
  • make any actions for the purposes of recovery of the source code (software text) of the Software Product;
  • delete any symbols or information, including copyright symbols, brand identity, and digital rights management software, unless otherwise is agreed by the Parties;
  • block digital rights management software;
  • create any derivatives based on the Software Products or any element thereof, including the audiovisual sequence and the source code, except in cases when the Licensee creates separate compiled modules (plug-ins) which creation is allowed by the Software product functionality;
  • divide the Software Product into parts;
  • reveal technology, disassemble the Software Product or derive its source code, change the source code and change the Software Product functionality;
  • misuse the Software Products any other way.

3.4. The Licensee hereby confirms that the Licensor reserves all exclusive rights to the Software Products. The Licensee shall not breach the abovementioned rights as well as intellectual property rights of the third parties while using the Software Products.

3.5. The Licensee shall have the right to provide technical support and assistance of the Software Products at its own discretion.

3.6. The Licensee shall not assign, transfer or otherwise alienate its rights and obligations under this Agreement without prior written consent of the Licensor.

3.7. For the proper use of the Software Products on the basis of the non-exclusive license, the Licensee is advised to meet minimum technical requirements provided by the Licensor regarding each Software Product.

3.8. In order to monitor performance of the Software Products (or the Additional Content) remotely, the Licensor (or the corresponding right holders of the Additional Content) is entitled to use digital rights management software. The purposes of that monitoring are the following (including, but not limited to): obtaining statistical data about the Software Products performance, monitoring of lawfulness of the Software Product use, searching for potential Software Products vulnerabilities.

The Parties assume that the Licensor does not collect any personal data of the Licensee’s employees during the foregoing monitoring.

4. ORDER OF SOFTWARE PRODUCTS

4.1. The Order of the Software Products shall be made using the Licensee’s unique account via the interface of the Licensor’s automated billing system on the ISPsystem website. An access to the Licensee’s unique account is granted after identification and authorization of the Licensee in the private section of the ISPsystem information system. All expressions of will made via the interface of the Licensor’s automated billing system shall be deemed proper and may not be disputed by the Licensee.

An Order (Annex #1 hereto) shall contain the following information: certain software with the rights to it granted subject to the terms and conditions of this Agreement, scope of the rights transferred, the amount of consideration, timelines of the rights transfer, and the names of the Support Packages. The Order agreed by the Parties shall be the basis for an invoice issued by the Licensor.

For the avoidance of doubt the Parties confirm that the Licensee is entitled to acquire the Support Packages separately from the certain Software Product.

4.2. The Licensor registers the Licensee in the Licensor’s information system and provides the Licensee with the corresponding access for the purposes of downloading Activation Keys. The registration shall be based on information provided by the Licensee at the time of making an Order. Validity of the Activation keys uploaded to the servers shall comply with terms of the license for the Software Products.

4.3. If the Licensee is willing to sublicense the Software Product under corresponding sublicensing agreements, the Licensee shall at its own discretion and at the Licensee’s own expense provide its Clients with the capability to order the Software Products and to make payments for it (payments for granting the right to use the Software Products on the basis of the sublicensing agreement entered by the Client), provided that Para 3.1. of this Agreement is met.

4.4. The Licensee shall have the right to obtain discounts depending on the Licensee’s Annual Turnover. Calculation of the Annual Turnover, and thus, calculation of discounts, is made on a day-to-day basis by the Licensor.

The Annual Turnover shall be determined based on the data from the Licensor’s automated billing system and may not be challenged by the Licensee.

Annex # 2 hereto contains amounts of discounts provided and the corresponding Software Product list.

4.5. Software Products are provided with relevant Additional materials in written form or in any other applicable form, including electronic form. Additional materials may contain information regarding Software Products’ description, its installation, adjustment, and usage instructions etc. An access to Additional materials is provided via the Software Products’ user interface. All Additional materials shall be deemed as separate items of intellectual property owned by the Licensor.

The Licensor may not use Additional materials for the purposes and by the means different from those necessary for the performance of this Agreement.

4.6. The Licensor grants the Licensee the right to use Additional materials throughout the term of using the corresponding Software Product and to make its reproduction (copying) for the abovementioned purposes.

5. TECHNICAL SUPPORT

5.1. The Licensee shall have the right to obtain technical support provided by ISPsystem employees regarding any issues related to the use of the Software Products (an Incident), including installation, settings, and usage issues. The detailed Regulation of technical support is published on the ISPsystem website.

5.2. The consultations provided to the Licensee do not include troubleshooting of the server where the Software Products are installed, as well as the resolution of other problems reported by the Licensees.

The Licensor shall be entitled, on its sole discretion and unilaterally, to divide one reported Incident to a number of different Incidents, provided that the Licensee’s call for support involves various aspects of the Software Product.

When the Licensor decides to divide the Incident, the Licensor shall notify the Licensee thereof.

5.3. When providing technical support to the Licensee, ISPsystem represented by the relevant specialists shall be entitled the right to refuse to provide consultations on the Incident in the following cases:

  • the Incident is not within the competence of the Licensor;
  • response to the Incident has already been given;
  • the number of Incidents has expired;
  • the Incident refers to the Additional Content and cannot be resolved by the Licensor;
  • as well as on any other grounds recognized by ISPsystem as reasonable.

Recognizing the Licensee’s legitimate right to adapt the Software Product, the Licensor reserves the right to refuse to perform its obligations concerning the Technical Support for the Software Product without compensation of possible losses, if, as a result of adaptation by the Licensee, the object code of the Software Product would be modified; after the restoration of the original condition of the Software Product by the Licensee, the Licensor shall not be entitled to refuse to perform its obligations under the Technical Support of the Software Product on the grounds specified in this Para.

5.4. Technical Support is provided by the Licensor to the Licensee on a paid basis under the conditions outlined in Annex #3 hereto.

5.5 Depending on the amount of funds transferred by the Licensee to the Licensee’s personal account, the Licensee shall have the right to receive additional free-of-charge Incidents. One free-of-charge Incident shall be given to the Licensee for each complete 100 (one hundred) Euros of the Annual Turnover on the Licensee’s personal account.

5.6. The Licensor also provides the Licensee with the opportunity to purchase additional Support Packages (a certain number of Incidents), or calls to the Licensor for Technical Support, provided that the Support Package would be ordered via the automated billing system on the ISPsystem website according to the terms and conditions provided in Annex #3 hereto.

The price for each additional Support Package shall be calculated and paid by the Licensee separately from the price of a non-exclusive license for the Software Product.

5.7. The free-of-charge Incidents shall be available with no expiration date during the term of this Agreement.

5.8. Despite the provisions of the Para 5, the Licensor shall have the right to refuse to provide technical support on the Additional Content, unless the technical support is directly related to the Licensor’s software and only the Licensor is able to resolve the Licensee’s issue; in any other cases the decision about it shall be made solely by the Licensor. In such case the Licensee reserves the right to send its request directly to the right holder of the Additional Content in accordance with the procedures set by the right holder, or use a different order set by the Licensor or which the Licensor informed the Licensee of.

6. SOFTWARE PRODUCTS UPDATES

6.1. The Licensor may periodically release the Software Product Updates which installation could eliminate errors in the Software Products, expand functionality of the Software Products, etc.

6.2. Download and installation of the Software Product Updates shall be made automatically, unless otherwise provided herein, provided that the server with the installed Software Product is connected to the information and telecommunication network of Internet and has a valid Software Product License (a non-exclusive license which validity has not expired at the time of the Software Product Update).

Download and installation of the Software Product Updates are made only with the Licensee’s consent.

6.3. All Software Product Updates shall be available for downloading during the Software Product license period selected during the Order, unless other period is determined by the Licensor at its sole discretion.

6.4. Any Software Product Updates related to the Software Products acquired by the Licensee under the terms of the “lifetime lease” according to Annex #1 herein are provided at an additional consideration amounting to 50 (fifty) percent of the annual cost of lease of such specific Software Product, per annum. However, the Updates for the first year of using this Software Product are included in the Lifetime license price.

6.5. In case if the Licensee wants to purchase the Software Product Update with the lifetime license, the Licensee shall purchase such Update for the entire period elapsed since the last paid Update of the Software Product was performed. For example purposes only: if the Licensee’s Software Product has been Updated 3 (three) years prior to purchasing a new Software Product Update, then the Licensee will be required to purchase such Update for the duration of all 3 years elapsed since the last Update.

6.6. The Updates for the Software Product acquired by the Licensee under the terms of the “monthly lease” or the “annual lease” according to Annex #1 herein are included in the price of the license if the license was acquired directly from the Licensor.

6.7. Update of the Additional Content shall be made in accordance with requirements of the right holders of the Additional Content upon agreement with the Licensor. Specifics of Updates of the Additional Content may be set in Annex #4(A) herein or be agreed individually by the parties, including via email.

7. CONFIDENTIALITY AGREEMENT

7.1. Hereby the Parties confirm and agree that confidential information which became known to the Parties during the performance of this Agreement shall not be made public or transferred to any third party, unless otherwise is provided by the legislation or certain agreement between the Parties.

7.2. The term “confidential information” includes all information that is referred to as confidential (or all other information that implies commercial secrets or intellectual property) in accordance with the Russian law (including personal information, secrecy of telephone conversations, etc.), along with any information or part of it that the disclosing party treats as confidential and that is marked as confidential or similar, or otherwise (e.g., in a contract) specified as confidential.

7.3. Disclosure of the confidential information to official bodies duly authorized in compliance with applicable laws to request disclosure of the confidential information shall not be treated as breach of this Agreement. The Party shall inform the other Party before the transfer of the information to the official body.

7.4. Confidential information remains fully owned by the Party which owns such information.

7.5. Information shall not be deemed confidential if the Party can prove any of the following:

  • information is or becomes publicly known through no fault of the receiving Party;
  • information was known to the receiving Party at the time of the disclosure, which the receiving Party shall prove by clear and convincing evidence;
  • the Party disclosing the information in written form has given its consent to the receiving Party to disclose the information to the third party without limitations.

7.6. Each Party hereby confirms that unauthorized disclosure or use of confidential information may cause harm to another Party.

7.7. The Parties shall not disclose the received confidential information and/or the commercial secrets of the Parties for the term of this Agreement and 3 (three) consecutive years after termination or cancellation of this Agreement.

7.8. Any information regarding the Additional Content which meets the terms and conditions of this Para shall be deemed confidential and be subject to the given rules and limitations.

8. LIABILITY OF THE PARTIES

8.1. The Parties shall bear responsibility in accordance with the effective legislation of the Russian Federation and the terms and conditions of this Agreement for the non-execution or improper execution of their liabilities under this Agreement.

8.2. The Parties shall be released from their responsibility for the full or partial nonperformance of obligations under this Agreement if proper performance appears impossible due to force-majeure i.e. extraordinary and unavoidable circumstances under existing conditions, arising after the conclusion of this Agreement.

Such circumstances shall include: fires caused by natural events, natural disasters, military actions including civil war, introduction of a state of emergency, acts of terror, mass disorders, strikes (except for strikes of employees of the Parties), changes in governing laws and other circumstances arising after the conclusion of this Agreement, which a Party could neither foresee nor prevent by reasonable measures, provided that such circumstances prevent proper performance of obligations by the Parties.

A fact of occurrence of such circumstances and their duration shall be proven by a document issued by the Chamber of Commerce and Industry of the state of the Party residence or by other competent authority. Such documentary evidence, however, shall not be required if these circumstances actually appear to be and are recognized by both Parties as publicly known.

A Party shall not be entitled to refer to force-majeure circumstances as the ground for release from its responsibility if such circumstances occurred after the term assigned for performance of respective obligations under this Agreement (at the time when a Party was in delay in performance of its obligations).

A Party which is prevented from performance of its obligations by the aforesaid circumstances shall be obliged to notify another Party in writing of occurrence and termination of such circumstances within 3 (three) days upon occurrence and respective termination of their effect. Otherwise, a Party referring to the force-majeure shall be released from its responsibility for nonperformance of its obligations under this Agreement only from the date of providing the notification of such circumstances occurrence and until the date of actual termination of their effect.

In case the force-majeure circumstances stay in effect for more than 6 (six) months, each Party may terminate the Agreement.

8.3. The Licensor shall not be liable for any damage, losses, or lost profit of the Licensee that may occur due to the use of the Software Products, as well as any losses related to revocation of the license rights to the Software Products (termination of this Agreement). The Licensee entering into this agreement shall be guided by the principle “as is”.

The Licensee shall fully accept the risk of consequences of using the Software Products, including their interaction with any other software that may be installed on the Licensee’s computer (server), and agree that the result of using the Software Products may fail to meet the Licensee’s expectations.

8.4. The Licensor shall not be liable for any damages or losses, including, but not limited to any lost profit and losses resulting from the loss of any confidential information, that may occur due to the use or impossibility to use the Software Products, including in case of any failure of operation of the Software Product, even if the Licensee has sent a notice on the possible emergence of any such damage and/or losses.

The Licensor shall not be liable to any persons for the unlawful acts of any third parties, short-term technical deficiencies, delays in the Software Product operation caused by network failures, any similar malfunctions, as well as for failures of equipment which may be applied for using the Software Products.

8.5. Each Party shall fulfill its obligations according to this Agreement and any applicable national and international law and assist to another Party in fulfilling its obligations.

8.6. If any third party submits claims to the Licensor, which are related to copyright of the Software Products and any other claims caused by the breach of this Agreement by the Licensee, the Licensee undertakes to use reasonable efforts to settle such claims.

8.7. The Licensee shall be solely liable to any third parties, including the Licensee’s sublicensees, for its actions or omissions.

8.8. The Licensor shall not be liable for any Licensee’s (the Licensee’s Client) losses caused particularly by impossibility to use the Software Products.

8.9. The Licensor retains the right to terminate this Agreement unilaterally in case of the breach of any essential condition of this Agreement by the Licensee.

8.10. The Licensor shall not be exposed to any claims regarding performance of the Additional Content which right holders are the third parties.

9. THE MANNER OF CONSIDERATION AND SOLUTION OF DISPUTES

9.1. All disputes and disagreement arising from this Agreement shall be considered by the Parties by means of negotiations. In case the consensus cannot be reached by negotiations, all disputes shall be settled in the Arbitration court of Irkutsk region (Russia, Irkutsk) in accordance with the established rules of the Russian Federation.

10. CORRESPONDENCE BETWEEN THE PARTIES

10.1. The correspondence between the Parties on the execution of this Agreement shall be carried out using the contact information provided by each Party and specified in the “Addresses, contact information and banking details of the parties” section of this Agreement.

10.2. For the purposes of electronic messages exchanging, the Parties shall use the “Support Center” section of the ISPsystem information system which is accessed by the Licensee after authorization. All messages are also copied to the email address specified by the Licensee in settings of the information system. Any files attached to an e-mail message (attachments) are deemed integral parts of the message.

11. TERM OF THE AGREEMENT

11.1. The term of this Agreement shall commence as of the date of execution and shall expire upon five (5) years unless this Agreement is terminated upon a mutual agreement of the Parties or unless unilateral termination. The date of execution is the date of exchange of electronic messages between the Parties regarding conclusion of this Agreement.

However, the Parties confirm and agree that the term of a non-exclusive license for the Software Product shall be defined in the Annex #1 hereto.

The term of the Agreement shall be automatically extended for the same period and on the same conditions unless one of the Parties notifies the other Party in writing at least 90 days before the term expiration date that it wishes the Agreement to expire.

11.2. This Agreement may be terminated by a mutual agreement of the Parties, as well as unilaterally by sending a written notice of termination of the Agreement by the authorized representative of the Party terminating the Agreement, at least one month before the date of termination.

11.3. If this Agreement is terminated on the Licensor’s initiative, particularly, in the case of a material breach by the Licensee, the Licensee shall have no right to reclaim anything what was performed up to the date of termination.

12. FINAL PROVISIONS

12.1. The Licensor shall have the right to amend this Agreement unilaterally at any time during the term hereof. The Licensor shall provide the Licensee with the supplemental agreement to amend the terms of this Agreement at least ten (10) days prior to the commencement of the relevant amendments. Upon the period of ten (10) days from the date of submitting the changes by the Licensor, the Licensee shall be deemed as having accepted the changes in full even if the Licensee refrained from answering. Thereafter the Parties shall be governed by both the Agreement and the relevant supplemental agreement.

In the event of refusal of the Licensee to accept these changes, it has the right to terminate this Agreement unilaterally.

12.2. The Parties shall be governed by the regulations of the effective legislation of the Russian Federation in all respects which are not settled by this Agreement.

12.3. This Agreement is made in 2 (two) copies, one for each Party. Both copies have the equal legal force.

12.4. The Parties undertake to notify each other of the change of their location, banking and other details which could influence the execution by the Parties of their respective liabilities resulting from the Agreement, in accordance with Para 10 of this Agreement.

12.5. In case if one or several provisions of this Agreement are declared invalid, the invalidity of these provisions shall not affect the force of the other still valid provisions of this Agreement, which shall remain in force for the Parties relations resulting from the Agreement.

13. ADDRESSES, CONTACT INFORMATION AND BANKING DETAILS OF THE PARTIES

ISPsystem Company (Licensor) Licensee
JSC ISPsystem

664017, Russian Federation, Irkutsk, Radujny 34a

Tel: +1 941 462 10 69
E-mail: sales@ispsystem.com
Company LTD

1111, United States, New York, 11 Street 11

Post address: 1111, United States, New York, 11 Street 11

Tel: +1 (111) 111-11-11, Fax: +1 (111) 111-11-11,
E-mail:

Signatures of the parties

JSC ISPsystem
CEO

_________________ /P.A.Guralnik/
Company LTD
CEO

_________________ /John Smith/
 
 
Annex # 1
Приложение № 1

CATALOG OF SOFTWARE PRODUCTS AND PRICES

Software Product 1 month lease 1 year lease Lifetime lease
ISPmanager 5 Lite 4.00 EUR 40.00 EUR 60.00 EUR
ISPmanager 5 Business (includes 1 node) 12.00 EUR 120.00 EUR 240.00 EUR
additional node 12.00 EUR 120.00 EUR 240.00 EUR
VMmanager 5 OVZ (includes 1 node) 8.00 EUR 80.00 EUR 160.00 EUR
additional node 8.00 EUR 80.00 EUR 160.00 EUR
VMmanager 5 KVM (includes 1 node) 8.00 EUR 80.00 EUR 160.00 EUR
additional node 8.00 EUR 80.00 EUR 160.00 EUR
VMmanager 5 Cloud (includes 5 nodes) 80.00 EUR 800.00 EUR 1600.00 EUR
additional node 16.00 EUR 160.00 EUR 320.00 EUR
BILLmanager 5 12.00 EUR 120.00 EUR 240.00 EUR
BILLmanager 5 Corporate 48.00 EUR 480.00 EUR 960.00 EUR
DCImanager 5 (100 servers) 12.00 EUR 120.00 EUR 240.00 EUR
additional 100 servers 12.00 EUR 120.00 EUR 240.00 EUR
DCImanager 5 Enterprise (includes 5 racks) 50.00 EUR 500.00 EUR -
additional rack 10.00 EUR 100.00 EUR -
IPmanager 5 9.00 EUR 54.00 EUR 72.00 EUR
DNSmanager 5 9.00 EUR 54.00 EUR 72.00 EUR

Signatures of the parties

JSC ISPsystem
CEO

_________________ /P.A.Guralnik/
Company LTD
CEO

_________________ /John Smith/
 
 
Annex # 2
Приложение № 2

DISCOUNTS

The Licensor grants to the Licensee the right to obtain discounts depending on the actual amount of the Licensee’s “Annual Turnover”. Recalculation of the amount of the “Annual Turnover” and, accordingly, the amount of discounts shall be carried out by the Licensor on a daily basis. This Annex contains the size of promotional discounts for the Licensee and the list of the Software Products to which they apply.

Annual Turnover Discount Software Products
from 500 to 1000 EUR 10% Product Group №1
from 1000 to 2000 EUR 20% Product Group №1
from 2000 to 5000 EUR 30% Product Group №1, Product Group №2
from 5000 to 10000 EUR 35% Product Group №1, Product Group №2
from 10000 to 25000 EUR 40% Product Group №1, Product Group №2
from 25000 to 50000 EUR 45% Product Group №1, Product Group №2
from 50000 to 100000 EUR 50% Product Group №1, Product Group №2
from 100000 to 250000 EUR 55% Product Group №1, Product Group №2
from 250000 to 500000 EUR 60% Product Group №1, Product Group №2
from 500000 to 1000000 EUR 65% Product Group №1, Product Group №2
from 1000000 EUR 70% Product Group №1, Product Group №2

Product Group №1: ISPmanager 5 Lite, ISPmanager 5 Business, BILLmanager 5, VMmanager 5 OVZ, VMmanager 5 KVM, DNSmanager 5, IPmanager 5, DCImanager 5.

Product Group №2: BILLmanager 5 Corporate, VMmanager 5 Cloud.

Signatures of the parties

JSC ISPsystem
CEO

_________________ /P.A.Guralnik/
Company LTD
CEO

_________________ /John Smith/
 
 
Annex # 3
Приложение № 3

PRODUCT SUPPORT

The Licensor provides the opportunity to purchase additional Support Packages (a certain number of Incidents) for extra number of support requests to the Licensor for technical assistance in addition to the amount of free Incidents granted under section 5.5. of this Agreement, provided that the Support Package would be ordered via the automated billing system on the ISPsystem website.

Number of Incidents covered by the Support Package Price
1 incident 30.00 EUR
5 incidents 100.00 EUR
30 incidents 300.00 EUR

Signatures of the parties

JSC ISPsystem
CEO

_________________ /P.A.Guralnik/
Company LTD
CEO

_________________ /John Smith/
 
 
Annex # 4(A)
Приложение № 4(А)

ADDITIONAL CONTENT

The given Annex #4(A) regulates the purchase of the Additional Content (as it is determined in the Agreement hereby) by the Licensee. This Annex remains valid only for the Additional Content, unless otherwise stipulated in this Annex.

1. Types of Additional Content and specifications of use

1.1. Paid Additional Content is the Additional Content purchased by the Licensee at extra charge. Hereinafter the term “Additional Content” shall be used for any Paid Additional Content.

1.2. Free Additional Content is the Additional Content purchased at no charge but which may have specific additional requirements or limitations including terms of use, functionality, etc. The Free Additional Content may be a software product that is still in development and testing, which may require the Licensee to provide usage reports or other feedback on the Additional Content per the Licensor’s request.

1.3. The Parties hereby understand and agree that provision of the Free Additional Content shall not be considered as gratuitous transfer or donation of property rights. Provision of the Free Additional Content is subjected to certain limitations of the Licensee’s rights of use of such Content and may result in additional responsibilities of the Licensee.

1.4. The Free Additional Content shall meet the same requirements and conditions which apply to the Paid Additional Content, unless otherwise directly determined by terms of acquisition of the Free Additional Content.

1.5. The Additional Content shall be subject to the terms and conditions that apply to the Software Products, unless otherwise stipulated in this Annex.

1.6. In certain cases expressed directly by the Licensor, the purchase of the Additional Content may require signing an additional agreement with the Licensor or the other party which is the right holder of the Additional Content. If such additional agreement is in place, the use of the Additional Content shall be regulated by the terms and conditions stipulated in this Agreement and this Annex in regard to its interaction with the interface of the Licensor’s automated billing system and the ISPsystem website.

1.7. The list of the Additional Content shall be available on the ISPsystem website and may be changed periodically. The Licensee has the right to purchase only the Additional Content available on the ISPsystem website at the point of purchase.

1.8. If the Licensor or the Licensee needs a written notice of confirmation about the Additional Content purchased, the Parties may sign an additional Annex to this Agreement and specify the Additional Content purchased per the form determined in Annex 4(B) hereby.

1.9. The transfer of rights to the Additional Content shall be governed by the terms and conditions of this Agreement, unless otherwise determined by this Annex or specifications of purchase of the Additional Content.

1.10. The Licensor hereby confirms that the Licensor has all rights to license the Additional Content provided per DL as specified hereafter. In regard to the Additional Content provided per SLI or SLWI as specified hereafter the Licensor has the required licenses and permissions to provide the Content to the Licensee, including the right to sublicense. If any claims related to the rights to the Additional Content are received by the Licensee from third parties, including, but not limited to, trademark rights, the Licensee shall immediately inform the Licensor of such claims and coordinate its actions with the Licensor before doing any further actions, including replying to the claim. If this order is not followed, the Licensor shall not be liable for any losses that the Licensee may have as the result of its self-activity.

2. Purchase of Additional Content

2.1. The purchase of the Additional Content shall be made via the interface of the Licensor’s automated billing system. All mutual payments related to the Additional Content shall be made via the Licensor’s billing system on the ISPsystem website, unless otherwise specified by the Licensor. The purchase of the Additional Content by any other means not directly allowed by the Licensor, as well as making any payments related to the Additional Content via any third party resources bypassing the Licensor’s billing system on the ISPsystem website is not permitted and shall be treated as a material breach of this Agreement. If case of any of the abovementioned violations, the Licensor shall have the right to immediately and at its sole discretion:

  • deprive the Licensee of using the Additional Content to which the violation was made; and/or
  • suspend Annex #4 in regard to any future purchases of the Additional Content; or
  • terminate this Agreement.

Notwithstanding the determined sanction, the Licensor shall not be liable for any losses or lost profit that the Licensee may experience after the sanction had been applied.

2.2. The Licensee hereby understands and agrees that the Licensee shall automatically lose the right to use the Additional Content purchased after this Agreement had been terminated, even if the grounds for termination are not related to the use of the Additional Content, unless the Additional Content was purchased per SLWI as specified below.

2.3. The Additional Content may be provided by using one of the following methods:

2.3.1. Direct License (“DL”): The Licensor provides the Licensee with the Additional Content, with the rights to it fully owned by the Licensor.

2.3.2. Sublicense with Integration (“SLI”): The Licensor provides the Licensee with the Additional Content per a sublicensing agreement; the end right holder of the Additional Content is the third party that provided the Licensor with the right to sublicense the Additional Content. SLI requires the Additional Content to be technically integrated with the Software Product (Software Products) and to be used entirely via the functionality of the Software Product.

In this document the technical integration means the interaction between the Additional Content and the Software Product, when the Additional Content connects to the Software Product to extend the functionality of the Software Product. The general use of the integrated Additional Content as a standalone program is not allowed. The technical integration may apply to modules, plugins, add-ons, extensions, etc.

2.3.3. Sublicense without Integration (“SLWI”): This method is identical to SLI with the only difference that the Additional Content is not integrated with the Software Product and may be used without the necessary connection to any of the Software Products. The license for the Additional Content provided per SLWI may remain valid after the Agreement termination if it was agreed by the Licensee and the corresponding SLWI right holder.

2.4. Specifications of providing the Additional Content per Direct License (DL).

2.4.1. If the Additional Content purchased per DL is technically integrated with the Software Product, the validity of the rights to the Additional Content given to the Licensee shall not exceed the validity of the corresponding rights to the specified Software Product given to the Licensee, unless otherwise stipulated for the specific Additional Content. If the rights of the Licensor to the corresponding Software Product expired for any reason, the Licensor shall be automatically deprived of the right of using the corresponding Additional Content without any obligations for the Licensor to pay any compensation to the Licensee.

2.4.2. Technical support for the Additional Content per DL shall be regulated by the terms and conditions of Para 5 of this Agreement, unless otherwise determined for the specific Additional Content.

2.5. Specifications of providing the Additional Content per Sublicense with Integration (SLI).

2.5.1. By purchasing the Additional Content as SLI the Licensee fully understands and agrees that all exclusive rights to this Additional Content shall belong to the third party (the right holder) who at its own discretion determines technical specifications of the Additional Content, for which the Licensor shall not be liable.

2.5.2. SLI shall be regulated by the same terms and conditions that regulate DL in section 2.4.1.

2.5.3. The Licensee shall read documentation of the right holder, which refers to the Additional Content per SLI. The compliance with the terms and conditions of this documentation shall be controlled by the corresponding right holder; however, the failure to comply with the terms of the documentation may result in revocation (termination) of the Licensee’s license on the Additional Content, which will lead to impossibility of using the corresponding Additional Content.

2.5.4. Update of the Additional Content per SLI shall be organized in compliance with the terms and conditions determined by its right holder. Such update may be performed in an automatic mode, which the Licensee is hereby informed of.

2.5.5. Technical support on the Additional Content per SLI shall not be provided by the Licensor if the question is not related to interaction between the Additional Content and the Software Products or the ISPsystem website. Technical support of such Additional Content shall be provided by the respective right holder.

2.5.6. The Licensor may not guarantee proper performance and absence of any errors in the Additional Content provided per SLI and shall not be liable for such Additional Content, as well as for potential damage from its operation on the Licensee’s computers and systems and for potential damage from interaction between such Additional Content and the Software Products.

2.6. Specifications of providing the Additional Content per Sublicense without Integration (SLWI).

2.6.1. The purchase of the Additional Content per SLWI shall be regulated by the same terms and conditions that regulate the Additional Content per SLI in section 2.5.

2.7. The price of the Additional Content shall be defined on a basis of the information published on the ISPsystem website.

3. Other provisions

3.1. The Licensee hereby agrees that the Licensor is not liable for testing and evaluation of the Additional Content, which exclusive rights don’t belong to the Licensor, its quality assurance, functionality, security, accuracy in materials provided with this Additional Content, as well as for any third party websites.

The Licensor may not provide any guarantees and shall not be liable for materials and websites of the third parties specified, as well as for any other materials, products, and services of such third parties.

3.2. The Licensee shall not use the materials of the parties which have the exclusive rights on the Additional Content in a way which may result in violation of rights of other parties and agrees that the Licensor is not liable for such usage under no circumstances.

3.3. The Licensee shall compensate to the Licensor any damage caused by the use of the Additional Content which rights belong to a third party in any unconscientious way or a way prohibited by law or the corresponding agreement if the third party submits a claim against the Licensor, which is related to the corresponding actions of the Licensee, and if after the adjudgment a competent court obliges the Licensor to pay for this damage.

 
 
Annex # 4(B)

Direct Licenses (“DL”) and Sublicenses with Integration (“SLI”)

Name of the Additional Content Period Price
CloudLinux - Sublicense with Integration (“SLI”)
Price Month 10.00 EUR
Number of module licenses (1 license included)
1 additional license Month 10.00 EUR
Softaculous - Sublicense with Integration (“SLI”)
Price Month 1.00 EUR
Number of module licenses (1 license included)
1 additional license Month 1.00 EUR
Virusdie for ISPmanager 5 Lite - Sublicense with Integration (“SLI”)
Price Month 5.00 EUR
Number of module licenses (1 license included)
Virusdie for ISPmanager 5 Business - Sublicense with Integration (“SLI”)
Price Month 30.00 EUR
Number of module licenses (1 license included)
1 additional license Month 30.00 EUR
1 additional license Year 360.00 EUR
Integration module with KernelCare
Price Month 3.00 EUR
Number of module licenses (1 license included)
DDoS-GUARD
Price Month 9.50 EUR
Price Year 114.00 EUR
Revisium Antivirus
Price Month 5.00 EUR
Windows Azure Pack integration module
Price Month 0.00 EUR
Price Year 0.00 EUR
VDC limit
<= 10 Month 50.00 EUR
<= 10 Year 500.00 EUR
>= 11 and <= 100 Month 100.00 EUR
>= 11 and <= 100 Year 1000.00 EUR
>= 101 and <= 500 Month 150.00 EUR
>= 101 and <= 500 Year 1500.00 EUR
>= 501 Month 200.00 EUR
>= 501 Year 2000.00 EUR
VMware vCloud Director (VDC) integration module
Price Month 0.00 EUR
Price Year 0.00 EUR
VDC limit
<= 10 Month 50.00 EUR
<= 10 Year 500.00 EUR
>= 11 and <= 100 Month 100.00 EUR
>= 11 and <= 100 Year 1000.00 EUR
>= 101 and <= 500 Month 150.00 EUR
>= 101 and <= 500 Year 1500.00 EUR
>= 501 Month 200.00 EUR
>= 501 Year 2000.00 EUR
VMware vCloud Director (VPS) integration module
Price Month 0.00 EUR
Price Year 0.00 EUR
Virtual server limit
<= 10 Month 25.00 EUR
<= 10 Year 250.00 EUR
>= 11 and <= 100 Month 50.00 EUR
>= 11 and <= 100 Year 500.00 EUR
>= 101 and <= 500 Month 75.00 EUR
>= 101 and <= 500 Year 750.00 EUR
>= 501 Month 100.00 EUR
>= 501 Year 1000.00 EUR

Signatures of the parties

JSC ISPsystem
CEO

_________________ /P.A.Guralnik/
Company LTD
CEO

_________________ /John Smith/
 
 

Sublicenses without Integration (“SLWI”)

Name of the Additional Content Period Price
CloudLinux Month 10.00 EUR
Softaculous Month 1.00 EUR
KernelCare Month 3.00 EUR

Signatures of the parties

JSC ISPsystem
CEO

_________________ /P.A.Guralnik/
Company LTD
CEO

_________________ /John Smith/