LICENSE AGREEMENT (PUBLIC OFFER)
(Moscow, amended on February 13, 2018)
In accordance with Article 437 of the Civil Code of the Russian Federation (hereinafter, the CC RF), this document is an official public offer by Okmeter Limited Liability Company (hereinafter referred to as the Licensor), represented by General Director Nikolay Sivko, acting on the basis of the Articles of Association to legal entities, individual entrepreneurs and individuals, regardless of the country of registration or domicile (location) (hereinafter referred to as the Agreement).
In accordance with clause 2 Article 437 of the CC RF if the conditions stipulated below are accepted, the person accepting this offer shall become the Licensee (in accordance with clause 3 Article 438 of the CC RF, acceptance of the offer equals conclusion of the agreement on conditions stipulated in the offer), and the Licensor and the Licensee are jointly referred to as the Parties to the Agreement.
1. TERMS AND DEFINITIONS
The Information System shall mean a system for storing, processing, transforming, transmitting, and updating information using computer hardware.
The Service, the Okmeter Service shall mean an information system collecting, processing and monitoring the operating parameters of the Licensee’s information systems (hereinafter, the Metrics), offered on the website under the following domains: okmeter.io and, *.okmeter.io, where * is any Internet domain name (hereinafter referred to as the Service Website), provided on the Licensor’s servers without downloading the distribution package and used solely for the Licensee’s internal business operations, provided that such operations do not include subletting the Service.
The Okmeter Agent shall mean software available on the Service Website, which the Licensee must install on their server.
The Ordinary Non-Exclusive License, the License, means the Licensee’s non-exclusive right to use the Service and the Okmeter Agent installed on the server across the world under the name designated by the Licensor (Okmeter, Окметр), without the right to re-engineer or otherwise change or distribute it.
The License Fee shall mean the price for the right to use the Service (simple non-exclusive license).
The Invoice Period shall mean the License Period. The Invoice Period shall start after the Trial. For the purpose of this Agreement the Invoice Period equals 1 (one) calendar month.
The Trial shall mean a free usage period for the Service and equals 14 calendar days after the Project Creation.
The Personal Profile shall mean a virtual tool of the Licensee’s personal self-service, located at the Service Website. The Licensee gets access to the Personal Profile by entering the Username and the password.
The Metrics means the operation parameter value of the Licensee’s information system.
The Licensee is a legal entity, individual entrepreneur or an individual (regardless of registration country, residence (location)), accepting this offer.
The User shall mean a representative or an employee of the Licensee to whom the Licensor gave access to the Service. From the moment of registering the User in the Service, the User shall follow this Agreement. The Licensee guarantees that all Users of the Licensee shall follow this Agreement.
The User Account means a unique user account of the Licensee in the Service allowing to use the Service features.
Registration means filling out a Registration Form located at the Service Website by the Licensee by indicating the required information and choosing the Username and the password.
The Username means a unique name intended for accessing the Personal Profile and is the Licensee’s e-mail provided at the registration.
The Password is a unique set of symbols intended for accessing the Personal Profile.
The Okmeter Software means a set of software programs of the Service information system owned by the Licensor by means of which the services of the Service are provided.
The Billing Unit means one Server of the Licensee where the Licensee installed the Okmeter Agent which sends the Licensee’s Metrics to the Service with its universal and unique identifier by Internet.
Quantity of metrics simultaneously collected for one Server means a number of different metrics collected by the Okmeter Agent from one server within the invoice period.
Acceptance of the Offer means a full and unconditional acceptance of the offer as a result of the Customer’s actions described in the terms and conditions of the offer. The Agreement shall be deemed concluded from the moment of the offer acceptance. The moment of the offer acceptance means the moment of the Licensee’s Registration at the Service Website.
The Bill means a document containing payment details of the Licensor to which the Licensee shall remit the funds for the items listed on the bill. When making settlements with nonresidents of the Russian Federation, the bill shall mean the Invoice.
The Project Creation shall mean entering the project name into a corresponding form right after registering at the Service Website.
The Authorized Representative means the Licensee’s representative acting on its behalf when registering at the Service and during further use of the Service through the Personal Profile. Information on the Authorized Representative is entered by the Licensee into the Personal Profile.
The Payment Gateway means the hardware and software package which allows to computerize the payment acceptance process in the Internet.
2. THE SUBJECT-MATTER OF THE AGREEMENT
2.1. The Licensor shall provide to the Licensee the right to use (simple non-exclusive license) the Service, as well as additional services related to the said Service, for the License Fee to the extent provided for by the Agreement without an obligation to provide reports on the Service’s use. The reports shall be provided by additional agreement between the Parties.
2.1.1. The Licensee may use the Service in accordance with its purpose and the terms of the Agreement by using the features and services available at the Service interface.
2.1.2. The use of the Service in any other ways, not indicated in clause 2.1.1. of the Agreement, including re-engineering of the Service, decompilation of the source code, and distribution of the Service, is not allowed without a written consent of the Licensor.
2.2. The exclusive rights to the Okmeter Software are owned by the Licensor pursuant to the right of ownership. The exclusive rights to the Okmeter Agent Software are owned by the Licensor pursuant to the right of ownership.
2.3. The Licensee may use the Service in any country of the world.
2.4. The Licensee shall choose a rate plan for the next invoice period in the personal profile or shall forward a request for the rate change to the Licensor’s e-mail: firstname.lastname@example.org.
2.5. The Licensor may provide additional paid services pursuant to this Agreement.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1. The Licensee may:
3.1.1. Perform any actions related to the functioning of the Service in accordance with its purpose, namely:
- obtain access to the information generated as a result of using the Service;
- upon conclusion of the corresponding written agreements with the Licensor , use the Service for commercial purposes, except for resale, lease, or transfer the Okmeter Software to third parties;
3.1.2. Make prepayment for the future Invoice Periods. In such a case, if the rates are changed, the price of the periods already paid for by the Licensee shall not change.
3.2. The Licensee shall:
3.2.1. Use the Service only within the scope of rights and using the means provided for in the Agreement;
3.2.2. Make payment in accordance with the provisions of the Agreement. The scope and price of the License for the Invoice Period is determined exclusively on the basis of statistics in the Licensor’s Service.
3.2.3. To ensure collection of the Licensee’s metrics by the Licensor, the Licensee shall install the Okmeter Agent to its servers from which the Licensee wishes to collect the metrics and then ensure operability of the Okmeter Agent.
3.2.4. When using the Service, follow the effective law and avoid using the Service for illegal purposes.
3.3. The Licensee may not:
3.3.1. Reproduce the Software of the Service (except for the Okmeter Agent), including writing it to computer memory.
3.3.2. Modify the Software of the Service or the Okmeter Agent.
3.3.3. Make the Service or the Okmeter Agent public.
3.3.4. Distribute copies of the Service or Okmeter Agent software or parts thereof and/or perform other actions aimed at deriving commercial benefit in relations with third parties from using the Service or Okmeter Agent;
3.3.5. Provide sublicenses for any use of the Services or parts thereof to third parties;
3.3.6. Try to circumvent technical restrictions of the Okmeter Service or the Okmeter Agent.
3.3.7. Reverse engineer, decompile or disassemble the Okmeter Service or the Okmeter Agent.
3.3.8. Use the Okmeter Service or the Okmeter Agent components to launch applications that do not operate at this Server.
3.3.9. Create copies of the Okmeter Service and the Okmeter Agent.
3.3.10. Grant the lease or other possession and/or use of the Okmeter Service.
3.3.11. Make attempts to get access to the data of other Licensees.
3.4. The Licensor shall:
3.4.1. Upon completion by the Licensee of its obligations to register and install the Okmeter Agent at its servers, grant the rights to use the Service to the Licensee by allocating the collected and processed metrics (including the visual ones) in the Licensee’s Personal Profile. The Licensor shall be deemed to have performed its obligations in full at the moment of providing access to the Service, however it is not required to sign and create additional documents regarding provision of such access.
3.4.2. Provide the right to use the Service features 24/7 on a daily basis, except for the duration of maintenance works. The Lisensor shall give the Licensee at least 2 business days prior notice on maintenance works through placing information in the Personal Profile or by sending a notification via e-mail.
3.4.3. Provide information about the operation of the Service by e-mail.
3.4.4. Subject to technical possibility, eliminate any possible malfunctions of the Service arising through the Licensor’s fault, based on the Licensee’s request.
3.5. The Licensor may:
3.5.1. Suspend the Licensee’s exercise of the right to use the Service before receiving payment in accordance with the rate plan selected;
3.5.2. Unilaterally and without judicial procedures withdraw from the Agreement and deny the Licensor the right to use the Service if the Licensee defaults on the payment dates or on other grounds as per this Agreement.
3.5.3. Engage third parties in the provision of services without obtaining a prior consent of the Licensee.
3.5.4. To unilaterally make changes to the Agreement, with the Licensor informing the Licensee about the changes introduced by publishing a message about the changes, the changes themselves and/or new documents at the Service Website, and/or forwarding a message to the Licensee via e-mail at least 10 (ten) calendar days prior to the changes entering into force. If the Licensee disagrees with the changes, the Agreement shall be terminated. The Licensee shall inform the Licensor about its disagreement with the new terms and conditions of the Agreement via e-mail at least 3 (three) calendar days prior to the effective date of the changes.
3.5.5. The Licensor may, without additional payment, use the Licensee’s means of individualization (logo, company name, trade mark and others) as an example of projects where the Service is used or for other information purposes, including but not limited to the following: use of the Licensee’s means of individualization by placing them in brochures, posters, other objects, placing them on websites to demonstrate the Service, to inform about the Licensee’s activity and etc.
4. PROCEDURE FOR GRANTING RIGHTS TO THE SERVICE
4.1. The Authorized Representative of the Licensee shall gain access to the Service through the Personal Profile. The Licensee may independently add and delete the access rights of the Licensee’s Users through the Service interface.
4.2. Upon registration, the Licensee receives access to the Licensee’s Personal Profile, receives configuration rights for the Service, receives rights to provide access, right to manage the Licensee’s data in the Service and right to perform all aspects of interaction with the Licensor. If necessary, the Licensee may change its Authorized Representative to another User of the Licensee by sending a request to the Licensor’s e-mail: email@example.com.
4.3. The Licensee may independently add/remove the servers from which the metrics are collected and processed by installing corresponding software following the instructions on the website of the Licensor.
5. PRICE AND SETTLEMENT PROCEDURE
5.1. The License Fee as well as the price of services provided within the Agreement is stated in the Price List located in the Internet at the address: okmeter.io.
5.2. The settlements shall be made for each Invoice Period.
5.3 Calculation of the number of licenses used by the Licensee at the rate shall be done exclusively on the basis of statistics in the Licensor’s Service. The quantity of licenses for the invoice period is determined as the maximum of the quantity of Okmeter Agents simultaneously operating at the Licensee’s Servers excluding 36 hours of peak usage.
5.4. Limitation on the quantity of simultaneously collected metrics for one Server is 5,000 (five thousand). If this limitation is exceeded by a certain Server, additional Licenses shall be charged in relation to this Server as additional Servers for every further 5,000 (five thousand) simultaneously collected metrics rounded downward to 5,000 (five thousand). The quantity of simultaneously collected metrics is determined exclusively on the basis of statistics in the Licensor’s Service.
5.5. Payment of the License Fee hereunder in accordance with the selected rates shall be made within 7 calendar days from expiration of the Invoice Period. The Licensee may make prepayment for the future Invoice Periods. If prepayment is made for the Licensees for the future 12 Invoice Periods, the Licensor shall provide to the Licensee a 10% discount. The final settlement for the corresponding Invoice Period shall be made within 7 calendar days from the moment of expiration of the next Invoice Period on the basis of the Licensor’s account system values.
5.6. All payments under the Agreement shall be made via bank transfer. Payment may be effected by the following methods:
by other methods previously agreed with the Licensor.
The currency used in settlements between the citizens of the Russian Federation and legal entities/individual entrepreneurs registered in accordance with the law of the Russian Federation is a Russian ruble. If settlements are made with foreign citizens and legal entities not being residents of the Russian Federation then settlements in USD and EUR are allowed.
5.7. The moment of the Licensee’s performance of its payment obligations shall be the date of crediting the funds to the settlement account of the Licensor in full.
5.8. The amount of the License Fee for the rights to use the Service under this Agreement shall be exempt from VAT in accordance with Subclause 26, clause 2, Article 149 of the Tax Code of the Russian Federation.
5.9. The Licensor may unilaterally change rates for the new Invoice Period on the condition that the new rates are published at the Service Website and the Licensor is given at least 30 (thirty) calendar days prior notice via e-mail or through the Personal Profile. If the Licensee disagrees with the indicated changes about which fact the Licensee informs the Licensor in writing (including via e-mail), the Agreement shall be deemed terminated.
6. LIABILITY OF THE PARTIES
6.1. The Parties shall be liable for non-fulfillment or improper fulfillment of their obligations hereunder in accordance with the effective Russian law.
6.2. The Licensee shall exercise the rights to use the Service at its own risk.
6.3. The Licensee acknowledges that no software is free from errors.
6.4. The Licensee agrees that in order to work with the Service the Licensee needs to use software (web browsers, operating systems, communications links, the Internet access and others) and equipment (personal computers, network equipment and others) produced and supplied by third parties, and the Licensor may not be liable for the quality of their operation, conformance of protocols and standards (protocol technical specification, software programming interface, data base scheme and similar items) as well as compatibility of the Service Agent with other software installed by the Licensee at its computer.
6.5. The Authorized Representatives of the Party shall keep confidential the data for accessing the Service. All actions performed under the User Account of the Licensee’s representative are deemed to have been performed by the Licensee’s representative.
6.6. In the event of late payment of the License Fee by the Licensee, the Licensor may charge the Licensee with a fine in the amount of 1% (one per cent) from the amount of late payment for each day of the delay.
7. DURATION AND TERMINATION OF THE CONTRACT
7.1. The Agreement comes into effect from the moment of its acceptance by the Licensee and remains in effect during the term of the Licensee’s use of the Service.
7.2. All disputes and disagreements shall be settled by negotiation. If a dispute or disagreement cannot be settled by negotiation, it shall be referred to court in accordance with the effective law.
7.3. Either Party may unilaterally withdraw from the Agreement by notifying the other Party in writing no less than 30 (thirty) calendar days before the anticipated date of termination by methods stipulated in the Agreement.
8. PERSONAL DATA
8.1. When accepting the offer, the Licensee gives its consent to the Licensor to collect and process personal data on the Licensee, its Users and other persons having access to the Service in order to perform the Agreement as well as in order to inform the Licensee about current advertising campaigns and special offers, changes and renewals of the Okmeter software program, repair and maintenance works for the whole term of using the Service and confirms receipt of such consent from all subjects to personal data, that is employees, the Licensee’s representatives and other persons to whom the Licensee gave access to its Personal Profile in the Service.
8.2. Access to personal data shall be provided to persons directly engaged in the processing of the Licensee’s personal data.
8.3. The Licensee shall: keep the confidential the Licensee’s personal data; not allow attempts of unauthorized use of the Licensee’s personal data by third parties.
9. ELECTRONIC WORKFLOW
9.1. In accordance with Article 9, Part 2 of Federal Law No. 63-ФЗ On Electronic Signature dated April 6, 2011, the Parties agreed to the equal significance of information in electronic form, signed with a simple digital signature, and a paper document signed personally by the director or his/her officer of the Party subject to the Parties’ performance of the Agreement.
9.1.1. A simple digital signature means a digital signature which, through the use of the simple digital signature key (hereinafter, the key), confirms the fact of applying digital signature by the Party’s authorized representative.
The key represents a combination of 2 components: an identifier and a key password. The Identifier shall be a username of the director or his/her authorized officer of the Party in the E-mail Information System; the password shall be a unique sequence unknown to third parties, the password for accessing the E-mail Information System.
9.1.2. The e-mail information system shall mean software enabling correspondence between the Parties via telecommunication networks using e-mail.
9.2. Pursuant to the Agreement, a simple digital signature may be used to sign the following documents.
9.2.1. Reconciliation reports;
9.2.2. Other documents not indicated in this clause.
9.3. Digital signature verification procedure
9.3.1. A document shall be deemed signed with a simple digital signature of a Party subject to the following conditions:
A document shall be deemed executed as a paper photocopy signed personally by the director or his/her authorized officer of a Party and attached to an email message sent from the address of either the Licensor (from the following e-mail: *@okmeter.io, where * is any name) or the Licensee (indicated in the personal profile). The text of the document, signatures of authorized persons, and the seal (if any) shall be clearly visible in the photocopy. The photocopy shall contain all mandatory details of the document provided for in Article 9 of the Federal Law No. 402-ФЗ On Accounting dated December 6, 2011.
10.1. All information related to the activity under the Agreement received by one Party from the other shall be deemed confidential. Each Party shall apply the same degree of confidentiality to avoid disclosure or use of the confidential information provided to it as it would apply in relation to its own confidential information.
10.2. The Party that received confidential information shall avoid its disclosure without consent of the Party that is the owner of the information, except for the cases stipulated by the effective law of the Russian Federation, including when in accordance with the effective law of the Russian Federation the Party to the Agreement is obliged to disclose the above-mentioned information (data comprising such information) to its counterparty within the civil law (contractual) relations between the Party to the Agreement and the counterparty. At the same time, the Party disclosing the confidential information shall immediately inform the Party that owns that information about such disclosure.
10.3. The confidential information may be disclosed by the Party that received that information to its employees that need that information for the Party to perform its obligations under this Agreement and to the extent required.
10.4. The Party to the Agreement that discloses information according to clauses 10.2. and 10.3. of the Agreement shall inform the third parties about the confidentiality of the information supplied in any such case.
10.5. The Information confidentiality obligations stipulated herein shall not apply to the confidential information which:
- is generally available to public (used in the press and other mass media);
- was legally known to the receiving Party prior to its disclosure by the disclosing Party;
- is allowed to be disclosed under a written consent of the Party that owns that information;
- may not be deemed confidential in accordance with the effective law of the Russian Federation.
10.6. The Parties shall abide by the provisions of this section during 5 (five) years upon termination or expiration of the Agreement, whichever comes first.
10.7. Upon termination of the Agreement or by request of the Party that owns the confidential information, the Party that received such information shall return or destroy (at the discretion of the Party that owns the information transferred) all confidential information transferred by the Party that owns the transferred information as soon as practicable in accordance with the Agreement.
11. CIRCUMSTANCES OF INSUPERABLE FORCE (FORCE MAJEURE)
11.1. The Party shall be free from any responsibility if non-performance or improper performance of its obligations was due to circumstances of insuperable force (force majeure), that is due to unforeseen, extreme and unpreventable circumstances under the given conditions beginning after conclusion of the Agreement that the Parties could not foresee or prevent by reasonable efforts. In particular, such circumstances are the following: the acts of God, earthquakes, floods, wars, military operations of any character, blockades, embargoes, political disturbances, riots and their consequences, issuance of legal acts and decisions of state authorities of the Russian Federation changing the legal status of the parties to the Agreement, limiting and/or forbidding performance of the obligations under the Agreement or otherwise affecting the ability to perform the Agreement, as well as other circumstances beyond the reasonable control of the Party.
11.2. The Party referring to the circumstances of insuperable force shall give a written notice about start or termination of such circumstances to the other Party to the Agreement within 3 (three) business days from their appearance, or from the moment it became possible. In this case, the representatives of the Parties shall consult each other and agree on the measures to be taken by the Parties as soon as practicable.
The beginning of force majeure circumstances and their duration shall be proven by documents issued by the corresponding competent state authorities or organizations.
Failure to give proper notice of force majeure circumstances shall deprive the corresponding Party of the right to refer to them in the future.
11.3. Upon occurrence of force majeure the term for the fulfillment of the obligations hereunder shall be suspended for the period of time during which such force majeure and consequences thereof continue. If force majeure circumstances remain for over 3 (three) months in a raw, any Party may unilaterally terminate the Agreement.
12. THE LICENSOR’S DETAILS:
Okmeter Limited Liability Company
Address: 2 Devyatkin Pereulok, floor 2, room 5, 6, 101000, Moscow
INN (Taxpayer Identification Number)/KPP (Tax Registration Reason Code) 7701988014/770101001
Settlement account: 40702810402620000193
with OJSC ALFA-BANK
Correspondent account: 30101810200000000593
INN (Taxpayer Identification Number): 7728168971
RCBIC (Russian Central Bank Identification Code) 044525593
address: PER. DEVYATKIN, D. 2, C. ET.2, KV./ MOSCOW, RUSSIA
Beneficiary account : No: 40702978602620000288
Beneficiary’s Bank: AO “ALFA-BANK”
Beneficiary's bank address: 27 Kalanchevskaya str., Moscow, 107078