1.3. The Licensor allows the Licensee to use the Products in the territory specified in the Appendix (Specifications) to the Agreement relating to such Products (hereinafter referred to as the “Territory”).
In case of absence from software license agreement indications of a specific territory within which the use of the transferred software is permitted, the provisions of the law on the possibility of its use throughout the territory of Russia are applied (thereby excluding other countries from the territory).
1.4. Within the Territory and Term provided for in this Agreement, the Licensor allows the Licensee to use the Products in the following ways:
1 ) use in the Licensee’s own business activities according to functional purpose (end user agreement), or
2) distribution of the program by the Licensee in the form of an independent product or as part of another (derivative or composite) product ( agreement with distributor).
Depending on this, the license agreement defines acceptable ways of using programs and databases.
For example, for the first option, permission to reproduce (synonyms: record, copy, install or install), launch and functional use may be quite sufficient.
While the second option requires a detailed study of the requirements for the procedure for using the software, depending on the options for its further distribution. So, to distribute a finished software product, you may additionally need the right to distribute and make it available to the public (this method concerns the transfer/download of distributions over the Internet).
In case of creation based on licensed software new version product or inclusion in the software package, you must obtain the right to processing (modification), etc.
A general list of methods (rights) for using works can be found in Article 1270 of the Civil Code of the Russian Federation.
In this case, it is necessary to pay attention to the strict restriction according to which the right to use software not expressly specified in the license agreement is not considered granted to the Licensee (see clause 1 of Article 1235 of the Civil Code of the Russian Federation). Thus, the condition on the methods of using computer programs and databases cannot be formulated by indicating “all” rights or by excluding certain rights. In this case, the license agreement will not be considered concluded.
2. Granting rights to use programs under a license agreement
2.1. The Licensor is obliged to provide the Licensee with copies of the Products on tangible media or send them to the Licensee network method as agreed by the parties no later than 10 (ten) days from the date of signing the relevant Appendix (Specification).
As a rule, the right to use programs is granted simultaneously with the transfer of their copies. To streamline the relations between the parties, it is advisable to document the transfer of copies and rights in the form of a bilateral act or a postal receipt/waybill confirming their dispatch to the Licensee. Due to the lack of generally established rules on this matter, the acceptance and transfer procedure should be detailed in the license agreement.
Of particular importance is documentary evidence of the transfer of copies and the granting of rights to software acquires under foreign economic contracts, where one of the parties is a non-resident. In such a situation, there is a need to comply with currency legislation, which requires the provision of documents on the actual execution of the contract.
3. License fee for using programs
3.1. The Licensee undertakes to pay the Licensor a fee for the right to use and/or use the rights to the Products provided to the Licensee in accordance with the terms of the Agreement.
3.2. The amount of the license fee or the method of determining it, the terms and procedure for payment are agreed upon by the Parties in the Appendix (Specifications) relating to the relevant Products.
There are many options for determining remuneration under a license agreement. The specific terms of the license fee depend on the purpose of concluding the agreement.
In the case of an end-user agreement, the license fee is usually set at a fixed amount, which can be paid in a lump sum or in installments.
Under an agreement with a distributor (reseller), it is possible to pay a fixed amount of remuneration for each distributed copy or a share in the income from its distribution. Various procedures and terms for payment of remuneration may be established.
In the latter case, in order to calculate the amount of remuneration, the Licensee is required to provide detailed reports on the procedure for using the licensed products.
4. Reporting under the license agreement
Important section for licensing agreements aimed at subsequent distribution of software products, since the amount of the license fee in them is usually related to the results of the Licensee’s activities.
Here it is necessary to agree on the form, timing and procedure for submitting reports, issuing acts at the end of reporting periods, the obligation to properly maintain records of transactions with licensed software products, storing documentation and providing access to it at the request of the Licensor.
5. Guarantees under the license agreement
Typical section for all types software license agreements. Typically includes confirmation of rights to software products, the legality of their provision under the contract and the Licensor’s acceptance of the resolution of possible disputes and compensation for damages in connection with a possible violation of the exclusive rights of third parties in connection with the use of the products. These provisions are aimed at protecting the interests of the Licensee.
In order to limit the Licensor's liability, it is usually stated here that software products are provided “as is,” i.e. without obligation about the suitability of the products for the purposes of the Licensee or joint use with certain software and hardware, etc.
6. Final terms of the license agreement
Here it is necessary to provide provisions on liability, force majeure, arbitration, confidentiality and other conditions common to different types of contracts.
in a person acting on the basis, hereinafter referred to as " Licensee", on the one hand, and in the person acting on the basis of, hereinafter referred to as " Licensor", on the other hand, hereinafter referred to as " Parties", have entered into this agreement, hereinafter referred to as the "Agreement", as follows:1. BASIC CONCEPTS
1.1. For the purposes of this Agreement, the terms listed below have the following meanings:
- Database– a set of independent materials presented in an objective form (articles, calculations, regulations, court decisions and other similar materials), systematized in such a way that these materials can be found and processed using an electronic computer (computer), the creation of which requires significant costs , and the exclusive right of the manufacturer is valid on the territory of the Russian Federation.
- Demo versions of software– software versions that have time or functional restrictions on their use.
- Software distribution (software distribution)– a set (set) of files and components of software and hardware protection, assembled (assembled) in accordance with the rules of the Licensor (distribution manufacturer) and intended for computers and other computer devices, necessary for the User to start using the relevant Software in accordance with the terms of the License Agreement (agreement).
- License agreement (agreement)– an agreement (including an accession agreement) between the Licensor and the User, under which the Licensor undertakes to provide the User with the rights to use the software within the limits provided for by this agreement and complying with the requirements of Articles 1235, 1236, 1286 of the Civil Code of the Russian Federation.
- Contract period– the time interval from the moment this Agreement enters into force until the moment of its termination in accordance with Section 9 of this Agreement.
- User– legal or individual, using (intending to use) software on their computer.
- Price list– a list established by the Licensor and/or methods for calculating basic (retail) prices for rights to use the software on the basis of a license agreement for standard configurations and terms of use of the software, posted on the website (in electronic system sales registration) of the Licensee.
- Acquirer– a legal entity or individual who has duly paid for or received from the Licensee non-exclusive rights to use the software on the basis of a license agreement.
- Computer program– a set of data and commands presented in an objective form (can be expressed in any language and in any form, including source text and object code) intended for the operation of computers and other computer devices in order to obtain a certain result, including preparatory materials obtained during development of a computer program, and the audiovisual displays generated by it.
- Software– computer programs and databases (intellectual property objects) that do not contain information constituting a state secret, and the exclusive copyright for which in the Territory of the Agreement and during the Period of the Agreement belongs to the Licensor.
- Territory of the agreement– all territories specified in Appendix No. 1 to this Agreement.
- Trademarks of the Licensor– names, marks, registered trademarks (marks), commercial (trade, service) names, abbreviations, trade dress, domain names, graphic and other symbols, logos, elements of sound and/or video, as well as other elements of brand style that are found in the details, products and marketing materials of the Licensor or in the materials of its affiliates, including all derivatives created during the Contract Period and modifications from said objects.
- Electronic key or activation key– generated for each software instance unique code or a file containing information about the software and the essential terms of the License Agreement (agreement).
2. SUBJECT OF THE AGREEMENT
2.1. Under this Agreement, the Licensor undertakes to transfer (provide), and the Licensee to accept and pay for the following non-exclusive property rights to use the Software, the composition of which is indicated in the Transfer and Acceptance Certificates, drawn up in accordance with clause 4.2 of this Agreement (hereinafter referred to as the “Non-exclusive property rights”):
- the right to reproduce the software, limited by the rights to install and run the software in accordance with (based on) the License agreement (agreement) (hereinafter referred to as the “Right to use the software on the basis of the license agreement”), granted for the sole purpose of transferring these rights directly or through third parties to Users BY;
- the right to transfer to the Acquirers and allow the Acquirers to transfer to third parties the rights to reproduce certain software, limited by the rights to install and run the software in accordance with (based on) the License Agreement (agreement), provided for the sole purpose of transferring these rights to Software Users;
- the right to distribute the software in accordance with the powers specified in this Agreement;
- the right to transfer to the Acquirers and permit the Acquirers to transfer to third parties the rights to distribute certain software in accordance with the powers specified in this Agreement.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1. The licensor is obliged:
3.1.1. Upon request, transfer Electronic keys (activation keys) to the Licensee and provide access (supply) to Software Distributions in the manner established in Appendix No. 6 to this Agreement.
3.1.2. Provide all Users who have received (or intend to receive) in accordance with the terms of this Agreement from the Licensee (directly or through third parties) the right to use the Software on the basis of a license agreement, information on the procedure for concluding (joining) the relevant License agreement (agreement) and its terms . The Licensor is obliged, with the consent of the Licensee, to conclude a License Agreement (agreement) with any such User, unless this contradicts the terms of the License Agreement (agreement) and the desire of the User (the procedure for concluding/attaching the License Agreement is determined by its terms).
3.1.3. Provide Users with technical support for the software during the validity period of the License Agreement (agreement) in accordance with the terms of the License Agreement (agreement) and the current legislation of the Russian Federation.
3.1.4. Notify the Licensee of changes in the Price List at least calendar days before these changes come into force.
3.1.5. Advise the Licensee on issues related to calculating the cost of rights to use the software, its functionality, installation and operation features on standard configurations of supported (popular) operating, mail and other systems.
3.1.6. Refund at full size all direct and indirect costs (losses) of the Licensee associated with the fulfillment of its obligations under clause 3.3.5 of this Agreement, if these costs (losses) are due to the non-compliance of this obligation with the current legislation of the Russian Federation due to any actions or inactions of the Licensor.
3.1.7. Immediately inform the Licensee of any claims from third parties that may be brought against the Licensee or (if satisfied) may lead to the invalidity of any of the terms of this Agreement.
3.2. The licensor has the right:
3.2.1. In case of violation by the Licensee of the conditions specified in clauses. 3.3, 5.2 of this Agreement to suspend the transfer of Electronic keys (activation keys) at the request of the Licensee.
3.2.2. Unilaterally make changes to the Price List, having previously notified the Licensee in accordance with clause 3.1.3 of this Agreement.
3.2.3. Allow the Licensee to apply, at the expense of the Licensor, individual and cumulative discounts when the Licensee exercises the rights to use the software on the basis of a license agreement to individual Purchasers or categories of Purchasers.
3.3. The licensee is obliged:
3.3.3. Do not carry out actions that may harm the activities or image of the Licensor, its partners and legal successors.
3.3.4. Obtain written permission from the Licensor for any use of its trademarks, except for the cases described in Section 7 of this Agreement.
3.3.5. In accordance with Article 149, paragraph 2, 26 of the Tax Code of the Russian Federation as amended by Law 195-FZ of July 19, 2007. (for the entire period of its validity) not to apply VAT on the transfer (sale) of non-exclusive rights to use the software on the basis of a license agreement to all Acquirers, as well as when calculating and paying royalties in accordance with clause 5.2 of this Agreement.
3.4. The licensee has the right:
3.4.1. Consult Users and Purchasers on the issues of calculating the cost of rights to use the software in accordance with the Licensor’s Price List and the current procedure for applying individual and cumulative discounts established in accordance with paragraphs. 3.2.3, 3.4.3. actual agreement.
3.4.2. Consult Users and Purchasers, providing them with technical support in the manner established in Appendix No. 5 to this Agreement.
3.4.3. Unilaterally, at its own expense (and with the permission of the Licensor, at the expense of the Licensor), apply individual and cumulative discounts when the Licensee exercises the rights to use the software on the basis of a license agreement to individual Acquirers or categories of Acquirers.
3.4.4. Coordinate issues related to the execution of this Agreement by contacting e-mail to the Licensor, at .
4. PROCEDURE FOR TRANSFER OF RIGHTS
4.1. All rights transferred under this Agreement are considered transferred to the Licensee from the Licensor from the date of signing of this Agreement by the Parties, unless otherwise provided by this Agreement.
4.2. The transfer of Non-exclusive property rights in accordance with clause 2.1 of this Agreement is carried out on the basis of Acceptance and Transfer Certificates signed by both Parties and is considered completed from the moment of their signing.
5. PAYMENT PROCEDURE
5.1. For the Non-exclusive property rights transferred (provided) under this Agreement, the Licensee undertakes to pay the Licensor a royalty, the amount of which is determined by the cost specified in the Transfer and Acceptance Certificates, drawn up in accordance with clause 4.2 of this Agreement.
5.2. The remuneration for the transferred (provided) rights specified in clause 5.1 of this Agreement is paid in the form of one-time fixed payments in the manner established in Appendix No. 3 to this Agreement.
5.3. The Licensee's obligation to transfer the amount of royalties is considered fulfilled on the day the funds are written off from the Licensee's current account.
5.4. The costs of transferring funds to the Licensor's account and the services of correspondent banks are paid by the Licensee.
5.5. The parties agree that repayment by the Licensee of amounts of debt for transferred (provided) rights in accordance with clause 5.2 of this Agreement may be carried out by the Licensee unilaterally offsetting any financial obligations of the Licensee to the Licensor.
6. ADDITIONAL CONDITIONS
6.1. The licensor guarantees that it has exclusive property rights to the required extent. The licensor guarantees that the software does not contain any borrowings or parts that could be considered a violation of copyright and/or related rights of third parties.
6.2. The licensor guarantees that the software, transferred (delivered) files and information materials do not contain information constituting state secrets, and that the use of the software does not entail violations of legal requirements in the field of information security. The Licensor guarantees that the Software or its parts do not contain elements that obviously lead to unauthorized destruction, blocking, modification or copying of information by the User, or disruption of the operation of computers, computer systems or networks.
6.3. The Licensor guarantees that at the time of concluding this Agreement, it is the legal copyright holder. At the time of conclusion of this Agreement, there are no rights to the Software encumbered by claims of third parties, except for those about which the Licensor notified the Licensee in writing. Until the conclusion of this Agreement, the Licensor is not aware of the claims of third parties regarding the rights to the Software.
6.4. In accordance with this Agreement and on the terms of this Agreement, the Licensee may transfer non-exclusive rights obtained in accordance with this Agreement to third parties in the Territory of the Agreement.
6.5. The terms and procedure for transferring Electronic keys (activation keys) and Software Distributions to the Licensee are determined by Appendix No. 6 to this Agreement.
6.6. To advertise and promote the software in the Contract Territory, the Licensee receives non-exclusive rights to reproduce, distribute, publicly display, import and make available to the public Demo versions of the Licensor's Software in the Contract Territory. Rights are transferred without additional compensation and are valid during the Contract Period.
7. NAMES AND TRADEMARKS
7.1. The licensee receives non-exclusive rights to reproduce, demonstrate and display Trademarks The Licensor on its Internet sites, in marketing (advertising) materials, on the sites of its partners (affiliates), in press releases and in public speeches, if such use, reproduction, demonstration or display is related to advertising (promotion) or sale of software ( non-exclusive rights to use the software) of the Licensor. Rights are transferred without additional compensation and are valid during the Contract Period.
8. RESPONSIBILITY OF THE PARTIES AND PROCEDURE FOR RESOLUTION OF DISPUTES
8.1. In case of non-fulfillment or improper fulfillment of obligations under this agreement, the Parties are liable in accordance with the current legislation of the Russian Federation.
8.2. In the event of claims against the Licensee from third parties related to violation of their copyrights, the Licensor takes all necessary measures to resolve the claims, as well as possible disputes, including litigation. In such cases, the Licensee is not entitled to act on behalf of the Licensor. The Licensor undertakes to settle claims, demands, or claims of third parties, as well as fully reimburse the Licensee for expenses and losses (including legal fees, etc.) associated with compensation and settlement of claims, claims, claims of third parties related to violation of their copyrights. right
8.3. For untimely transfer of the amount of royalties in accordance with clause 5.2 of this Agreement, the Licensor has the right to collect from the Licensee a penalty in the amount of % for each day of delay in payment of the amount to be transferred, but not more than % of this amount.
8.4. For late provision in accordance with clause 3.1.1 of this Agreement of Electronic keys (activation keys) and/or Software distributions, the Licensee has the right to charge the Licensor a penalty in the amount of % for each day of delay of the cost of the corresponding rights to use this software according to the Licensor’s Price List , but not more than % of this amount.
8.5. Disputes and disagreements not resolved by the Parties arising from this Agreement or in connection with it are subject to consideration by the Arbitration Court in accordance with the current legislation of the Russian Federation.
9. VALIDITY AND PROCEDURE FOR TERMINATION OF THE AGREEMENT
9.1. This Agreement comes into force on the date of signature by the Parties and is valid for calendar years, starting (inclusive) from the date of entry into force of this Agreement. If, days before the expiration of this Agreement, neither Party declares in writing its intention to terminate it, the term of the Agreement is automatically extended for calendar years.
9.2. The transfer of the exclusive right to the non-exclusive rights transferred under this Agreement to another copyright holder is not a basis for amending or terminating this Agreement.
9.3. This Agreement may be terminated early by mutual agreement of the Parties or one of the Parties by sending the other Party a written notice of termination of the Agreement. In this case, the Agreement terminates days after receipt of the notification by the second Party.
10. FINAL PROVISIONS
10.1. The parties to this Agreement acknowledge that documents transmitted via fax or in electronic form (for example, via Internet e-mail) and containing the necessary details have the same legal force (i.e. are authentic) as documents on paper media, signed by the officials indicated in the document and bearing the seal of the Party that signed the documents, except in cases where this contradicts the current legislation and rules of business document flow.
10.2. If a dispute arises regarding the execution of this Agreement, the interested Party has the right to submit to the judicial authorities, as authentic evidence, documents received via fax or electronic form (for example, via Internet e-mail), certified by the signature of the head and the seal of one of the Parties.
10.3. In everything that is not provided for in this Agreement, the Parties are guided by the current legislation of the Russian Federation.
10.4. All changes and additions to this Agreement and its Appendices are considered valid if they are made in writing and signed by authorized representatives of the Parties.
10.5. This Agreement has been drawn up in accordance with the legislation of the Russian Federation in the Russian language in two copies having equal legal force, one for each of the Parties.
Introduction
How to properly register the rights to purchased software? How to choose the optimal form of contracting, protect your rights as a software user and not lose money on taxes? We bring to your attention an overview of contractual schemes used in IT for the purchase of software. Due to the complexity and volume of the material, the review is divided into two parts. The first part is devoted general description legal relations relating to the acquisition of rights to software, and contains an overview of contracts that are concluded in the presence of already developed, existing software. The second part focuses on the contractual schemes used to create software, as well as the agreements that accompany the acquisition of software.
This article may primarily be of interest to purchasers of software rights, but it is likely that it will also be of interest to copyright holders. It should also be noted that this review considers only relationships within the framework of commercial turnover between organizations. B 2C relationships are not the subject of this review, although much of what has been said can be applied by analogy to relationships with consumers.
Also, this article does not discuss issues related to free software (open licenses in the terminology of the novelties of the Civil Code of the Russian Federation), since this is a separate large topic.
What is software acquisition
Unfortunately, today not all market participants (even among software professionals and others) information technologies) understand what exactly they are selling and what legal relations arise during the so-called sale of software. Although it should be noted that from year to year the legal literacy of sellers is noticeably increasing and now expressions such as “rent”, “license leasing” and other terms that are questionable from the standpoint of current legislation are quite rare. Currently, in contract practice, the following terms are most often used to describe the subject of the contract:
Sale of software licenses;
Sales of software;
Sale of software copies;
Transfer of rights to software;
Software transfer;
Granting rights to software;
Providing a simple software license;
Software implementation;
Assignment of rights to software, etc.
Which of the listed and many other terms can be considered the most correct? The answer to this question can only be given after determining the will of the parties and, therefore, the type of agreement that they will use to formalize the relationship.
Types of legal relations in connection with the sale of software
First of all, it is important to understand the very essence of the legal relations associated with the implementation of software. According to Art. 1225 and 1259 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), computer programs (which in everyday life are more often called “software”, “software”, “software”, “computer programs”) are objects intellectual activity and are subject to protection by a special section of law - copyright.
- exclusive right to which the copyright holder can dispose at our own discretion, including refusing it or transferring it in full to third parties. That is, this right is a commercial component of copyright - a right on which you can make money;
- personal non-property rights(right of authorship, right to a name, right to inviolability of a work, etc.), which cannot be alienated by the author and always belong only to him. Thus, these rights cannot be introduced into commercial circulation; it will not be possible to make money on them within the framework of contractual legal relations.
At the same time, Art. 1227 of the Civil Code of the Russian Federation states that intellectual rights do not depend on the ownership of a material medium(thing) in which the corresponding results of intellectual activity or a means of individualization are expressed, and the transfer of ownership of a thing, as a general rule, does not entail the transfer or granting of intellectual rights to the result of intellectual activity or a means of individualization expressed in this thing.
Based on the foregoing, we can conclude that the subject of contracts for the sale of software must be somehow related to the exclusive right to the software, and not to the ownership of the distribution disk, and will depend on the scope of rights that the copyright holder is willing to provide in regarding the buyer's software.
For convenience, it’s time to systematize the software and agreements on the disposal of rights to use it.
For the purpose of contractual registration of legal relations, it is convenient to divide software into already existing and not yet created. The scope of rights granted under the contract can be divided into full (alienation of the exclusive right in full) and partial (provision of a certain set of powers listed in Article 1270 of the Civil Code of the Russian Federation). These are the main features based on which, in our opinion, one should choose a contractual agreement diagram.
Situation 1: The software has already been developed
Clause 1. Art. 1233 of the Civil Code of the Russian Federation establishes two ways to dispose of your exclusive right to a work (to which software is legally equivalent): alienation in favor of another person of the exclusive right or granting another person the right to use it within the limits established by the license agreement. Let's consider both methods in order.
in a person acting on the basis, hereinafter referred to as " Licensee", on the one hand, and in the person acting on the basis of, hereinafter referred to as " Sublicensee", on the other hand, hereinafter referred to as the "Parties", have entered into this agreement, hereinafter " Agreement”, about the following:
1. TERMS USED
1.1. Software distribution (software distribution)– a set (set) of files and components of software and hardware protection, assembled (assembled) in accordance with the rules of the Copyright Holder (distribution manufacturer) and intended for computers and other computer devices, necessary for the User to start using the relevant Software in accordance with the terms of the License Agreement (agreement), expressed on a tangible medium or transferred to the Sublicensee via electronic communication channels.
1.2. Agreement with the copyright holder– current agreements of the Licensee with third parties - holders of exclusive rights to the relevant software or having the right granted by the copyright holder to conclude such agreements.
1.3. License agreement (agreement)– an agreement (contract) concluded by the End User and the copyright holder on the terms of accession or offer for the use of the software, which accompanies the registration and use of the software by the End User and determines the conditions for use of the software by the End User. Familiarization with the License Agreement occurs during installation of the software, before starting to use it, or on the website of the Copyright Holder.
1.4. End user– a legal entity or individual who, in accordance with the established procedure, acquires (receives) the Rights to use the Software from the Sublicensee and uses it in accordance with the terms of this Agreement and the License Agreement.
1.5. Software– objective forms of representing a set of data and commands intended for the operation of electronic computers(computer) and other computer devices.
1.6. Copyright holders– individuals/legal entities who own exclusive rights to the software.
1.7. Non-exclusive right– the right to use the Software under a simple (non-exclusive) license in accordance with the terms of this Agreement, namely:
- the right to reproduce the software, limited by the right to install and run the software in accordance with the user documentation/License agreement accompanying the installation and launch of the software and establishing the rules for using the software, provided under a simple (non-exclusive) license for the sole purpose of transferring this right directly or through third parties to end users of software on TKD;
- the right to distribute the software in accordance with the powers specified in this Agreement.
1.8. Registration information– computer file, registration key on a tangible medium, serial number etc., containing a unique set of characters that allows the use of the software without time or functional restrictions in accordance with the terms of the License Agreement and is confidential information of the Copyright Holder, as well as providing access to technical support services for the software provided by the Copyright Holder.
1.9. Component materials– materials that can be supplied by the Licensee to the Sublicensee, necessary for the Sublicensee to use the Software (Documentation, Software distributions, etc.).
1.10. Current price list– a constantly updated list of Non-exclusive rights, Technical support and Accessories sold by the Licensee indicating prices and other conditions of the Copyright Holder.
1.11. TKD (territory of commercial activity)– means the territory of the Russian Federation in which the Sublicensee receives the right to distribute the Software.
1.12. Software technical support– the right to receive software technical support services provided by the Copyright Holder or a third party duly authorized by the Copyright Holder to provide such services, in accordance with the Regulations approved by the Copyright Holder. The Regulations can be read on the website of the Copyright Holder.
2. SUBJECT OF THE AGREEMENT
2.1. Under this Agreement, the Licensee undertakes, based on requests sent via email, to provide (transfer) to the Sublicensee:
- Non-exclusive rights;
- Technical support;
- Component materials.
2.2. The sublicensee undertakes to accept and pay for what is transferred to it in accordance with clause 2.1 of this Agreement.
2.3. Non-exclusive rights, Technical support, as well as component materials are indicated in the invoices issued by the Licensee in accordance with the terms of this Agreement.
2.4. In accordance with this Agreement, the Licensee grants the Sublicensee the right to transfer (provide) Non-exclusive rights, Technical support and Accessories received in accordance with clause 2.1 of this Agreement to End Users only on TKD.
2.5. The basis for the legitimacy of the Licensee in terms of its rights transferred under this Agreement and the right to transfer them to the Sublicensee are the current Agreements with the Copyright Holders.
2.6. All rights transferred by the Licensee to the Sublicensee under this Agreement, in relation to each specific Software, are limited to the conditions described in this Agreement and the relevant License Agreements.
2.7. All obligations assumed by the Sublicensee under this Agreement in relation to each specific software are supplemented by the conditions and obligations described in the License Agreements and this Agreement.
2.8. The sublicensee himself familiarizes himself with the License Agreements, Regulations, and also confirms that he is fully familiar with and agrees with all the conditions, restrictions and obligations that he must and/or has the right to fulfill based on the License Agreements and Regulations.
3. TIMELINES AND PROCEDURE FOR ACCEPTANCE AND TRANSFER
3.1. The transfer of Non-Exclusive Rights, as well as Technical Support in accordance with this Agreement, occurs on the basis of Certificates of Acceptance of Transfer of Rights, signed by both Parties, and is considered completed from the moment they are signed by the Licensee and the full amount of the remuneration is received in the Licensee’s bank account, unless otherwise agreed by the Parties. In this case, the use (transfer of rights to use the software to the End User) of the corresponding software is possible only on the basis of valid License agreements (agreements) signed (accepted by way of accession) by the End User and agreements concluded between the Sublicensee and the End User.
3.2. The Licensee transfers to the Sublicensee (or the End User specified by it) the Registration Information via the Internet or other communication channels in full within business days from the receipt of full payment of the fee in accordance with Section 4. of this Agreement, unless otherwise agreed by the Parties.
3.3. The deadline for transferring the Component Materials to the Licensee is up to business days or at any other time as agreed by the Parties. The Licensee transfers the Component Materials to the Sublicensee's representative at the Licensee's office or sends them at the Sublicensee's expense by postal parcel.
3.4. The transfer of Component Materials to the Sublicensee is documented by a delivery note and an invoice.
4. COST AND PAYMENT PROCEDURE
4.1. For the Non-Exclusive Rights, Technical Support and Accessories provided under this Agreement, the Sublicensee undertakes to pay the Licensee a fee, the amount of which is indicated in the invoice issued by the Licensee.
4.2. The remuneration specified in clause 4.1 of this Agreement is paid in the form of one-time fixed payments for each special case transfer of Non-exclusive rights, Technical support and Accessories.
4.3 Payment of the remuneration specified in clause 4.1 of this Agreement is carried out by the Sublicensee by prepayment in the amount of 100% within business days from the date of issuance of the invoice by the Licensee, unless otherwise agreed by the Parties.
4.4. All payments are made in Russian rubles by transferring funds to the Licensee’s bank account. The day of execution of the payment is considered the day the funds are credited to the Licensee’s current account.
5. SPECIAL CONDITIONS
5.1. The Licensee guarantees that he acts within the limits of the rights and powers granted to him by the Copyright Holders, and this Agreement does not contradict the Agreements with the Copyright Holders and does not violate the rights of third parties if the Sublicensee fulfills all the terms of this Agreement and the relevant License agreements (agreements).
5.2. The Licensee confirms that at the time of provision (transfer) to the Sublicensee under this Agreement of the Non-exclusive right, Technical support and Accessories, they are not pledged, not seized, and are not the subject of claims by third parties.
5.3. The sublicensee independently exercises the rights specified in section 2 of this Agreement. Based on this Agreement, the Sublicensee acts as a partner in the sale (provision, transfer) of Non-exclusive rights, Technical support and Accessories. The sublicensee, on its own behalf, at its own expense and at its own risk, acquires from the Licensee Non-exclusive rights, Technical Support and Component Materials, carries out their advertising (marketing), storage, disposal and sale (provision, transfer) to third parties within the framework of the rights and restrictions provided for this Agreement. The sublicensee is an authorized sales partner (provision, transfer) of rights, but not a sales agent of the Licensee or Rightholders.
5.4. The Sublicensee is not authorized to act on behalf of the Licensee and/or Copyright Holders.
5.5. The Sublicensee guarantees that at the time of transfer of Non-Exclusive Rights to him in accordance with clause 3.1 of this Agreement, he is familiar with and agrees with the terms of all relevant License agreements (agreements), on the basis of which the use of the relevant software is possible.
5.6. The Sublicensee undertakes, at the request of the Licensee, to ensure that the End User signs the License Agreement (agreement) using the forms and/or with the execution additional requirements installed for the corresponding software.
5.7. The Sublicensee undertakes to provide Non-Exclusive Rights, Technical Support and Accessories to End Users at prices not lower than the prices specified in the Licensee's Current Price List, unless otherwise agreed by the Parties.
5.8. In the event that the Parties do not agree to provide Non-Exclusive Rights, Technical Support and Accessories to End Users at prices lower than those specified in the Licensee’s Current Price List, the Licensee reserves the right to refuse to provide the Sublicensee with Non-Exclusive Rights, Technical Support and Accessories.
5.9. The parties agreed that clause 5.7 is an essential condition of this Agreement and its violation may be grounds for termination of the Agreement.
6. RESPONSIBILITY OF THE PARTIES
6.1. For failure to fulfill or improper fulfillment of obligations under this Agreement, the Parties are liable in accordance with the current legislation of the Russian Federation.
6.2. The Party that caused the damage is obliged to fully compensate such damage to the other Party.
6.3. In the event that the Copyright Holder imposes penalties on the Licensee in connection with the Sublicensee's violation of clause 5.8 of this Agreement, the Sublicensee is obliged to reimburse such penalties paid by the Licensee to the Copyright Holder.
6.4. The licensee is not responsible for any losses resulting from the use of the software (including, but not limited to: loss of information due to software failure, decreased performance, etc.).
6.5. The sublicensee warrants that it is aware of the functional properties of the relevant software. The sublicensee bears the risk of compliance of the Software with its desires and needs, as well as the risk of compliance of the terms and scope of the rights granted with its desires and needs. The licensee is not liable for any loss or damage, regardless of the reasons for their occurrence, (including, but not limited to, special, incidental or indirect damage, damages associated with lost profits, interruption of commercial or production activities, loss of business information, negligence, or any other damages) arising from the use or inability to use the software.
7. PRIVACY
7.1. Registration information transferred by the Licensee to the Sublicensee constitutes confidential information and should not be copied by the Sublicensee, nor provided to third parties during the validity of this Agreement and after its expiration without a time limit. The exception in this case is the transfer of Registration Information by the Sublicensee to End Users; in this case, the Sublicensee must reflect the confidentiality terms specified in this Agreement in agreements with End Users.
7.2. The parties will take all measures to preserve confidential information received from each other under this Agreement during the validity of this Agreement.
7.3. Information transmitted on a tangible medium and labeled “Confidential” or “Trade Secret” is also considered confidential.
7.4. Under this Agreement, the Licensee receives from the Sublicensee the right to use information about personal data received by the Licensee (orally and in writing, as well as via email) and relating to representatives of the Sublicensee, as well as End Users - its clients, for their processing, use, blocking , destruction, depersonalization, cross-border transfer (including for registration of the License, if necessary in accordance with the licensing policy of the copyright holder). The obligation to ensure the confidentiality and security of personal data of the Sublicensee's representatives during their processing, in accordance with Part 4 of Article 6 of Federal Law No. 152-FZ of July 27, 2006 “On Personal Data,” rests with the Licensee.
7.5. The sublicensee guarantees that it has the right to transfer the specified personal data to the Licensee.
8. FORCE MAJEURE CIRCUMSTANCES
8.1. The Parties to the Agreement are released from liability for partial or complete failure to fulfill obligations under the Agreement if such failure was a direct consequence of force majeure circumstances (force majeure circumstances) that arose after the conclusion of the Agreement (fire, flood, hurricane, earthquake or restrictions imposed by government authorities on activities any of the Parties, etc.), and the violating Party could neither foresee nor prevent these circumstances.
8.2. The Party for which it is impossible to fulfill its obligations under the Agreement is obliged, no later than business days from the moment force majeure circumstances arise, to notify the other Party in writing of the occurrence and expected duration of the above circumstances. The facts stated in the notification must be confirmed by the competent authority or organization.
8.3. If force majeure circumstances last for more than months, either Party has the right to refuse to perform the entire Agreement or its unenforceable part. In this case, the Parties make mutual settlements for obligations arising from this Agreement.
9. DISPUTE RESOLUTION PROCEDURE
9.1. If any disagreements arise, the Parties will resolve them through negotiations.
9.2. Disputes and disagreements arising from this Agreement or in connection with it that are not resolved by the Parties are subject to consideration by the Arbitration Court.
10. VALIDITY AND PROCEDURE FOR TERMINATION OF THE AGREEMENT
10.1. This Agreement is valid for one year from the date of its signing by authorized representatives of the Parties, and if the Agreement is signed on different dates, it comes into force on the latest of them.
10.2. If none of the Parties declares termination of the Agreement in writing calendar days before the end of its validity period, the Agreement is considered extended for the next year.
10.3. Termination of the Agreement is formalized by a termination agreement. The Agreement will be considered terminated if none of the Parties has any claims regarding the implementation and settlements under the Agreement.
10.4. Unilateral refusal to fulfill this Agreement (in whole or in part) is permitted in the event of a significant violation of the Agreement.
10.5. A violation of this Agreement by the Licensee is considered significant if the Licensee has not complied with the conditions of clause 3 of this Agreement within calendar days.
10.6. A violation of this Agreement by the Sublicensee is considered material in the event of non-payment of remuneration within calendar days, including in the event of the Sublicensee’s evasion of receiving an invoice and/or untimely notification of a change in the address (postal and/or electronic) to which invoices are delivered.
10.7. This Agreement is considered terminated on the day from the moment one Party receives a notification from the other Party of its unilateral refusal to perform the Agreement.
10.8. In cases not provided for by this Agreement, it can be terminated only by agreement of the Parties or in other cases provided for by current legislation.
11. ADDITIONAL TERMS
11.1. From the moment of signing the Agreement, all previous agreements and understandings of the Parties relating to the subject of this Agreement become invalid.
11.2. The agreement is made in writing. The written form is considered completed if there are signatures of authorized persons and seal impressions of the Parties, or facsimile reproduction of the signatures of the first persons in the presence of seal impressions.
11.3. This Agreement has been drawn up in two copies, having equal legal force and kept by each Party, one.
11.4. All Appendices, Addenda and Agreements to this Agreement are an integral part of it and are valid subject to the written form and seals of the Parties.
11.5. The Parties undertake to appoint responsible persons for communication on issues of implementation and maintenance of this Agreement.
11.6. The Parties are notified, including about changes to the Current price lists, by a letter sent by email to the Sublicensee’s employee responsible for work under the Agreement.
11.7. The parties undertake to notify each other in writing of changes in addresses and details within five days.
11.8. If, due to the technical features of a certain software, any conditions of the Agreement cannot be fulfilled, then these conditions and liability for failure to fulfill these conditions, if provided, are considered ineffective in relation to such software. The Party that fails to fulfill any terms of the Agreement in these circumstances shall send an official notification of this to the other Party within working days. Official notification is made in writing or by email addressed to the employee of the other Party responsible for work under the Agreement.
12. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES
Licensee
Sublicensee Legal address: Postal address: INN: KPP: Bank: Cash/account: Correspondent/account: BIC:
13. SIGNATURES OF THE PARTIES
Licensee _________________
Sublicensee _________________
License to use computer programs: essence, types
In accordance with paragraph 1 of Art. 1286 of the Civil Code of the Russian Federation, a license agreement is an agreement to grant rights to use a work (in this case computer program) to a person who is not its author or other copyright holder by force of law.
A software license, depending on the scope of the licensor’s rights, can be of 2 types:
- simple (non-exclusive), presupposing that the copyright holder retains the right to issue similar licenses to other persons;
- exclusive, depriving the licensor of such right.
In this case, the formula “1 agreement = 1 type of license” is not mandatory. By virtue of clause 3 of Art. 1236 of the Civil Code of the Russian Federation, within the framework of 1 agreement, a combination of conditions of both types is allowed in relation to different ways use of software.
Software license agreement: procedure for conclusion, conditions
The contract requires compliance with a simple written form without additional procedures, such as notarization or state registration. The exception is when it comes to transferring a license for a computer program registered with Rospatent. The license for such software is also subject to mandatory registration.
For simple (non-exclusive) licenses, a simplified procedure for concluding an agreement is acceptable. As such, in particular, a statement of the terms of the agreement on the copy of the program itself, the packaging of such a copy, or in in electronic format(paragraph 2, clause 5, article 1286 of the Civil Code of the Russian Federation).
The position of the courts on this matter is quite clear: start using the program in accordance with the terms of the agreement set out on a copy of the program or attached to it in the form electronic document, means the licensee’s consent to conclude an agreement (for example, resolution of the 1st Arbitration Court of Appeal dated August 3, 2015 No. 01AP-3956/15).
Software license agreement will not be considered concluded if it does not contain clauses regulating:
- licensed object (software, software, etc.);
- permitted uses of the software.
In addition, for compensation contracts Regulation of remuneration is mandatory - the procedure for determining and paying it. If the contract does not contain the appropriate conditions, it will also be considered not concluded (Part 2, Clause 5, Article 1235 of the Civil Code of the Russian Federation).
Important! Particular attention in this part should be paid to agreements concluded in a simplified manner. By virtue of Part 3, Clause 5, Art. 1286 of the Civil Code of the Russian Federation, if such an agreement does not contain a clause on fees, it is a priori considered gratuitous (provided that the agreement itself does not provide otherwise). This condition cannot be changed later.
1 more important condition license agreement, including for software, - the geography of use of the license. The agreement cannot extend beyond the territory of protection of the software as an object of intellectual property.
In other words, a license agreement must be concluded in order to use the license on the territory of the Russian Federation. Changing geography is allowed only in the direction of narrowing, for example, by selecting 1 or several regions of the country. As for the legal protection of Russian software abroad, it is carried out in accordance with international treaties Russian Federation in the field of copyright protection.
If the agreement does not contain a clause regulating the territory of use of the software license, the entire Russian Federation is automatically recognized as such (clause 3 of Article 1235 of the Civil Code of the Russian Federation).
Software license: validity period
According to the general rule set out in paragraph 4 of Art. 1235 of the Civil Code of the Russian Federation, the validity period of the license is limited by the validity period of the right to the software. Thus, the granting of a perpetual license, although it does not entail the invalidity of the contract, is incorrect.
If there is no clause regulating the period for granting the right to use the software in the contract, the contract is considered concluded for 5 years (Part 2, Clause 4, Article 1235 of the Civil Code of the Russian Federation), provided that the licensor’s exclusive right to the program does not terminate earlier, since In such a situation, the validity of the contract is simultaneously terminated.
Due to its specific nature, drawing up a software license agreement requires not only strict adherence to the Civil Code norms, but also the presence of certain practical skills. Otherwise, there is a high probability of missing many nuances, the significance of which may become apparent already during the validity period of the license. To avoid such consequences, it is recommended to use a ready-made contract form.
You can download a sample software license agreement from the following link:
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