AGENCY AGREEMENT
This Agency Agreement (“Agreement”) according to Art. 418a ff. of the Swiss Code of Obligation (“CO”) is a legally binding agreement between:
YOU, being any person or company distributing Content under the terms of this Agreement (“You” or “Content Owner”); and Yandex Europe AG (“Yandex”) a company incorporated under the laws of Switzerland with address at: Werftestrasse 4, 6005 Luzern, Switzerland.
This Agreement sets forth the terms and conditions applicable to the agency relationship between You and Yandex regarding Your distribution of Content through the Yandex Store and/or Partner Stores by way of an agency, Yandex being the agent and acting as Your proxy in the sense of Art. 418b CO.
The “Terms and Conditions for Offline Retail Store Distribution” Appendix (“Appendix”) constitutes an integral part of this Agreement and sets forth the terms and conditions applicable to additional distribution services Yandex may provide to You with regard to Your Content. When rendering such additional services, Yandex may distribute Your Content via additional channels as specified in the Appendix and/or in its own name. The terms of the main body of this Agreement shall fully (but to the extent required mutatis mutandis and/or particularly taking into account that even though Yandex may act in its own name, the distribution via other channels shall be treated the same as a distribution via the Store and/or that the terms agency, agent, principal and related terms might need to be read accordingly) apply to any services or activities of Yandex under the Appendix. Any and all references to this Agreement contained herein shall be considered references to the Agreement and the Appendix unless expressly provided otherwise.
DEFINITIONS
“Agent Fee” means the fee owed by You to Yandex as remuneration for Yandex providing the services under this Agreement.
“Chargebacks” means any amounts charged back or otherwise returned to the End User, e.g. due to End User refunds or contested credit card transactions, and any fees or penalties associated therewith.
“Content” means an item which may be a software application, game, ringtone, music, image, artwork, user manual, electronic book or any other digital material, which is distributed by You through the Yandex Store and, as the case may be, any Partner Store and/or Third Party Store, under the terms of this Agreement.
“Content Owner” means You as the person or company holding the rights in and to the Content.
“Device” means any End User’s device that can access the Yandex Store and/or a Partner Store and/or on which Your Content may be installed and/or performed.
“End User” means any individual user who accesses Content for customary personal use purposes and not for redistribution.
“End User Information” means usernames, passwords or any other log-in information or any other personally identifiable information about End Users.
“End User Fee” means, collectively and individually, (a) the fee charged to an End User as remuneration for the grant of a license to the Content to such End User by You, all tax inclusive; and/or (b) the fee charged to an End User from within the Content for any additional services, licenses, functionality and/or products associated therewith, all tax inclusive.
“End User License Agreement” means a legally binding agreement between You and the End User (which may be a click-wrap, click-through or similar agreement) which grants a non-exclusive right and license to such End User to perform, display and/or otherwise use the Content on the Device.
“Gross Revenue” means the gross monetary revenue comprising of End User Fees actually collected by Yandex on Your behalf during the reporting month, including any Transactional Taxes, and reduced by any Chargebacks.
“Net Revenue” means Gross Revenue less Transactional Taxes.
“Partner Store” means any version of Yandex Store (however named and/or branded) which is operated by Yandex and distributed by or in cooperation with a partner of Yandex (OEM, mobile network operator, etc.).
“Processor” means a company authorized by Yandex to provide payment processing and fee collection services.
“Store” means both Yandex Store and Partner Store(s) or any of them.
“Third Party Store” means any content store platform, software and/or service other than Yandex Store or any Partner Store operated by a third party which is not a member of the Yandex Group.
“Transactional Taxes” means value added tax, sales or services tax or any other similar transactional taxes.
“Yandex Group” means Yandex, Yandex Inc. (USA), Yandex N.V. (Netherlands), YANDEX LLC (Russia) or any other company under direct or indirect control by Yandex N.V. (Netherlands).
“Yandex Store” means the Yandex.Store service (in whatever form and however branded by Yandex) which is owned and operated by Yandex or any company within the Yandex Group, and which provides the marketplace for distribution of the Content by You to End Users.
1. YANDEX AS YOUR AGENT
1.1. You hereby authorize and instruct Yandex to act under the terms of this Agreement as Your non-exclusive agent for:
1.1.1 marketing and distributing Your Content to End Users through the Yandex Store and, as the case may be, any Partner Store(s); and
1.1.2. collection of End User Fees (if charged by You);
1.1.3. providing Your Content to third parties for marketing and distribution in any Third Party Store on a sub-agency, sub-licensing, distribution services and/or other basis.
1.2. You also hereby authorize and instruct Yandex to:
1.2.1. provide You with hosting services for storage of Your Content and related materials for the purposes of marketing and distributing Your Content to End Users;
1.2.2. market, demonstrate and promote Your Content;
1.2.3. receive and process orders from End Users;
1.2.4. issue invoices and collect End User Fees on Your behalf;
1.2.5. act as Your direct proxy with regard to Your relationships with End Users and/or Third Party Store owners or operators concerning Your Content;
1.2.6. deliver Content to End Users on Your behalf;
1.2.7. make Chargebacks;
1.2.8. perform any other activities reasonably necessary to fulfill its obligations under this Agreement, as determined by Yandex.
1.3. You hereby grant Yandex all rights reasonably necessary for Yandex to fulfill its obligations as agent under this Agreement.
1.4. Yandex may subcontract third parties (including but not limited to any entity within the Yandex Group and/or the Processor) to fulfill any part of its obligations under this Agreement (including, but not limited to, such services as payment processing, fee collection, operation of the server, etc.) and assign or sublicense to third parties any part of its rights under this Agreement.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. You are and shall remain the owner of all right, title and interest in and to Your Content, including all intellectual property rights therein such as, without limitation, copyrights, patents, trademarks and trade secrets. This Agreement does not transfer ownership of any of these rights.
2.2. You hereby grant Yandex a non-exclusive, worldwide and royalty-free right and license to use Your Content for the purposes of this Agreement, including copying, distribution by electronic means, public display, public performance, communication of the Content to the public and any other means necessary for the performance of Yandex's obligations under this Agreement.
2.3. You hereby grant Yandex a non-exclusive, worldwide and royalty-free right and license to use Your trademarks, trade names, service marks, logos and/or other identifying or distinctive marks, as well as images identifying Your Content (icons, etc.), by placing, copying, reproducing publicly displaying and making them available online and on End Users’ Devices in order to perform its obligations under this Agreement, including the distribution of Your Content through the Store, as well as by placing, copying, reproducing and publicly displaying and making them available in Yandex’s own advertising and promotional materials for the Store (whether online or offline).
2.4. Yandex may sublicense any of the rights granted to it under Sections 2.2 and/or 2.3 to any third party that owns and/or operates a Third Party Store for the purposes of this Agreement, provided that:
2.4.1. Yandex shall ensure that End User Fees, if set by You, are still applicable in the respective Third Party Store (provided, however, that Yandex may exercise its rights set forth by Sections 4.2 and/or 4.3 specifically for such Third Party Store) and that such End User Fees are transmitted to You as per Section 8;
2.4.2. Yandex shall ensure that any Content removed from the Store (whether by You or by Yandex) is also removed from any Third Party Store within a reasonable amount of time and, in any case, within no more that ninety (90) days;
2.4.3. Yandex shall (and You hereby authorize and instruct Yandex to) use its commercially reasonable efforts to provide the sub-licensee with the End User License Agreement and the information related to the Content provided to Yandex by You.
2.5. Nothing in this Agreement grants You a right to use any of Yandex’s or its partners’ trademarks, trade names, service marks, logos or other identifying or distinctive marks.
2.6. End User License Agreement. You shall enclose an End User License Agreement in Your Content which covers the terms and conditions of the license granted by You to the End User and governs the use of Your Content by the End User. Where there is no such End User License Agreement enclosed in Your Content, You hereby agree that each End User who downloaded your Content via the Store is automatically granted by You a non-exclusive, non-transferable, worldwide right and license to use Your Content on the End User’s Device, such license being perpetual, unless Your Content is distributed to End Users with limited availability on a trial basis, in which case such license is limited to the trial period only. Under this license, You shall be solely responsible for maintenance and support services, any warranty or product claim in relation to Your Content, any third party intellectual property right infringement claim and for legal compliance. In any case, the End User License Agreement shall be made between You and End User only, Yandex in no case being a party to any End User License Agreement.
3. USE OF THE STORE
3.1. In order to make use of the Store, You must have a valid Store account. Such Store account allows You to view and amend Your profile, the information about Your Content and payment details, to manage promotional activities, to view statistics and sales information, and to permit or disable reviews and End Users’ comments.
3.2. You must provide Yandex with the valid profile information including Your email, Your company name, VAT-ID and/or other tax ID, addresses, country of residence, website, order email, user support email, urgent support email (to be used by Yandex only), and any other information Yandex may reasonably require (e.g. telephone number, fax number, the name of Your contact person, etc.).
3.3. In order to charge an End User Fee for Your Content, You must provide Yandex with valid payment information which Yandex will use to transfer You the End User Fees collected by Yandex for You and on Your behalf (net of the Agent Fee).
3.4. You must provide Your Content to Yandex Store together with the following information: the title of Your Content, a full description of Your Content, a short description of Your Content (which may be generated by Yandex if not provided), instructions, a thumbnail for the catalogue (which may be generated by Yandex if not provided), images (screenshots), the platform details and other technical requirements, the version (if applicable), the category, the terms of distribution of Content (e.g. whether the Content is provided with a trial period), applicable End User Fees (or lack thereof) and , keywords, Content classification information (e.g. not recommended for End Users of certain age or other criteria), the status of Content (active/non-active), serial numbers (if the serial number generation form is not chosen), builds and their description (title, version, platform, device, language, file formats, compatibility), etc.
3.5. You shall be solely responsible for ensuring and You hereby represent and warrant that the information You provide to Yandex and to End Users is true, accurate and valid and that Your Content is safe, free of defects in design and operation, and that it complies with any and all applicable laws and regulations.
3.6. Restricted Content. You may not upload, display and distribute any Content or associated material that violates any of Yandex’s policies, or that:
3.6.1. disrupts, disables, damages in any way or accesses in an unauthorized manner any Device, software or network or personal data of any End User, Yandex, any Yandex partner or any other third party, including but not limited to, content transmitting viruses, worms, malware, spyware;
3.6.2. contains or links to any illegal content, any child pornography, obscenity, nudity, sexual activity, extremist, hatred, violent, discriminatory, defamatory or any other material whose distribution is forbidden or restricted under applicable laws;
3.6.3. processes in an unauthorized manner private and confidential information of individuals;
3.6.4. infringes, or links to any site that infringes, any intellectual property rights, including copyright, trademark, patent, know-how or any other proprietary rights of others;
3.6.5. facilitates online gambling, including but not limited to, online casinos, sports betting and lotteries;
3.6.6. mimics functionality or warnings from an End User’s operating system or other applications;
3.6.7. allows, facilitates, promotes, endorses or otherwise enables making or processing payments by the End User from within such Content via any tool or method other than the ones offered and supplied by Yandex.
3.7. You shall submit Your Content, materials and information to Yandex in a format and using the delivery methods and tools as prescribed by Yandex.
3.8. Yandex may cease displaying, promoting and giving access to Your Content if it is not properly uploaded.
3.9. If Your Content includes any software licensed under an Open Source Initiative Approved License, it must not cause any Yandex software to become subject to the terms of any such license, which You hereby represent and warrant.
3.10. Content ratings will be used to determine the placement of Your Content on the Store with higher rated Content generally given better placement, subject to Yandex's right to change placement at Yandex's sole discretion. End Users who download Your Content will be able to rate it. If Your Content has not received any rating from End Users, Yandex may rate it at its sole discretion based on its quality and history (e.g. uninstall and/or Chargebacks rates).
3.11. You shall be solely responsible for any classification, categorization or characterization of Your Content (including but not limited to as sensitive or age-restricted Content) as may be required under any applicable law. In no case shall Yandex be liable for any classification, categorization or characterization of Your Content made by You; provided, however, that Yandex may re-classify, re-categorize or re-characterize Your Content at its sole discretion.
3.12. At any time and from time to time, Yandex may offer You additional promotional services by offering preferred placement of Your Content or otherwise promoting Your Content to End Users. Any such services shall be provided under terms and conditions determined solely by Yandex and may be provided for a fee. If such services are provided for a fee, provision of such services shall require Your express opt-in consent (which may be given using the tools provided by Yandex).
4. END USER FEES
4.1. You are free to choose to (a) not to charge any End User Fees for or within Your Content; or (b) to charge End User Fees for and/or within Your Content, including but not limited to for providing additional services, licenses, functionality and/or products associated with Your Content and/or extension of the term of license granted to an End User by You (e.g. beyond the initial limited trial period).
4.2. If You wish to charge End User Fees, You shall set such End User Fee rates at Your sole discretion, using the tools provided by Yandex. You hereby expressly acknowledge and agree that the tools offered by Yandex may limit Your choice of the exact amounts of End User Fees You wish to charge, including but not limited to determining the available options of the amounts to choose from (e.g. if You wish to charge an End User Fee of USD 1.57, Yandex may require You to set the End User Fee as USD 0.99 or USD 1.99 instead). The End User Fee rate must be all tax inclusive, meaning it has to include any and all taxes (such as VAT, sales or services tax or any other similar Transactional Taxes) applicable including, but not limited to, in the countries which You designate, at Your sole discretion, as target countries for the distribution of Your Content.
4.3. You may denominate End User Fee rates only in the currencies permitted by Yandex. Yandex may, if it so elects or is so required by any applicable law, convert the amounts to the local currency or currencies used for the Yandex Store, a Partner Store or a Third Party Store using the conversion rate chosen by Yandex.
4.4. You may distribute free trial versions of Your Content with an option to buy the license for the full version of the Content provided that You distribute the full version of the same Content through the Yandex Store and, as the case may be, a Partner Store, for an End User Fee.
4.5. YOU ARE SOLELY RESPONSIBLE FOR ALL TAXES RELATED TO YOUR DISTRIBUTION OF CONTENT THROUGH THE YANDEX STORE AND/OR PARTNER STORES AND/OR THIRD PARTY STORES (SUCH AS, WITHOUT LIMITATION, ANY VALUE ADDED TAX, SALES OR SERVICES TAX OR ANY OTHER SIMILAR TRANSACTIONAL TAXES), INCLUDING DETERMINING THE APPLICABLE TAX RATE (WHICH HAS TO BE COMMUNICATED TO YANDEX USING THE TOOLS PROVIDED BY YANDEX OR AT THE CONTACT DETAILS SPECIFIED BY YANDEX), REPORTING AND REMITTING TAXES TO THE APPROPRIATE TAXING AUTHORITIES, ETC. YANDEX TAKES NO RESPONSIBILITY AS TO DETERMINING, CALCULATING, REPORTING OR REMITTING ANY SUCH TAXES ASSOCIATED WITH YOUR CONTENT.
4.6. You shall indicate the total rate of all applicable Transactional Taxes using the tools provided by Yandex. It is Your sole responsibility to determine the correct total rate of all taxes applicable to the distribution of Your Content through Yandex Store and/or Partner Stores, including but not limited to in the countries chosen by You for such distribution, and to indicate the total tax rate to Yandex using the tools provided by Yandex. Yandex will neither determine tax rates for You nor check the tax rates indicated by You. Yandex will base the calculation of the Transactional Taxes entirely on the tax rates indicated by You and the correctness of these figures is Your responsibility.
4.7. Yandex will pass on to You the entire amount of Transactional Taxes collected in relation to Your Content, based upon the total applicable tax rate indicated by You to Yandex.
5. MAINTENANCE AND SUPPORT
5.1. Any maintenance and support service in relation to the Content is Your responsibility. You shall be solely responsible for the Content, quality and performance of the Content, correctness and sufficiency of the information You provide to End Users, for any express or implied product warranty, support, maintenance or other obligations related to the Content, for communicating with End Users regarding the Content and for addressing any End User complaints and claims about the Content.
5.2. You agree to provide End Users with support by email or phone, state Your name, address, support email address or phone number at an appropriate place within the Content, and respond to End User related issues pertaining to the Content within five (5) business days.
5.3. Where You become aware of any serious default in Your Content, You shall immediately inform Yandex about such a default.
5.4. Yandex has no obligation to provide any maintenance and support to End Users in relation to Your Content. Yandex may (but is not obliged to) address any complaint of an End User and Yandex may, in addressing such complaint of an End User and at Yandex' sole discretion, transfer the End User Fee back to the End User which shall constitute a valid Chargeback.
6. CHARGEBACKS
6.1. Distribution of Your Content through the Yandex Store or a Partner Store will be subject to the Chargeback policy as set forth by Yandex as part of the Yandex Store Terms of Use located at https://yandex.com/legal/store_termsofuse/and as may be amended by Yandex from time to time.
6.2. You hereby authorize and instruct Yandex to give the End User a full refund of the End User Fee where the End User requests the refund within up to fifteen (15) minutes after the transaction. In cases where Your Content can be previewed by an End User (e.g. ringtones, images), no Chargeback will be allowed.
6.3. If Chargebacks result in a negative amount of Gross Revenue for a particular month, Yandex shall at its discretion either: (i) offset such negative amount against future payments You are owed under this Agreement; or (ii) invoice this amount to You, in which case You hereby agree to pay within thirty (30) days of the date of invoicing any amounts invoiced by Yandex to You as a result of such Chargebacks.
6.4. Billing disputes received by Yandex (or its Processor) concerning Content licensed for End User Fees of less than ten US Dollars (USD 10) may be automatically charged back, in addition to any handling fees charged by Yandex (except where multiple disputes are initiated by an End User with abnormal dispute history). Chargeback requests concerning End User Fees of ten US Dollars (USD 10) or more will be handled in accordance with the Chargeback policy as set forth by Yandex as part of the Yandex Store Terms of Use located at https://yandex.com/legal/store_termsofuse/and as may be amended by Yandex from time to time.
7. PRIVACY
7.1. End User Privacy. You shall be solely responsible for protecting the privacy and legal rights of End Users of Your Content under all applicable laws and regulations, and, as a minimum, You shall do as follows:
7.1.1. If End Users provide You with, or You gather or access End User Information, You must make the End Users aware that certain End User Information will be available to You, and You must provide a legally adequate privacy notice to End Users about it, obtain the End User’s permission to gather and use End User Information and ensure the protection of such End User Information.
7.1.2. You may only use End User Information for the limited purposes for which the End User has given You permission to do so and only as long as it is needed to achieve such purposes, and in no case may the End User Information be used in any manner that would violate Your privacy policy or the privacy policy applicable within the Yandex Group, which is located at https://yandex.com/legal/confidential/.
7.2. Yandex and/or its partners and/or subcontractors (including but not limited to any entity within the Yandex Group and/or the Processor) may collect certain statistics from the Store and End Users’ Devices, including but not limited to, information on how the Store and Devices are being used. The information collected is examined in the aggregate to make improvements to the Stores and is subject to the privacy policy applicable within the Yandex Group, which is located at https://yandex.com/legal/confidential/. Yandex may, at its sole discretion, provide limited aggregate information to You for You to be able to improve Your Content.
7.3. If Yandex subcontracts third parties (including but not limited to any entity within the Yandex Group and/or the Processor) to fulfill its obligations under this Agreement (cf. Section 1.4), some of the data provided by You to Yandex according to Sections 3.2 and 3.3 of this Agreement might need to be transferred or disclosed to such third parties for that purpose. You hereby expressly consent to such transfer or disclosure of the data according to Sections 3.2 and 3.3 of this Agreement, including the consent to cross-border disclosure of such data according to Art. 6 of the Swiss Federal Act on Data Protection.
8. AGENT FEE AND TRANSFER OF END USER FEES TO YOU
8.1. If You charge End User Fees, within thirty (30) days after the end of each month, Yandex will issue to You a summary report of amounts payable pursuant to this Agreement and send You an invoice for the Agent Fee for such month.
8.2. Agent Fee Rate. Yandex shall, for its services under this Agreement, be remunerated with an Agent Fee in the amount of thirty percent (30%) of the Net Revenue. The amount of such Agent Fee may be subject to revision from time to time.
8.3. Payment of Agent Fee shall take place within thirty (30) days after the end of each month by Yandex setting off the Net Revenue against the Agent Fee for such month.
8.4. Provided that You are not in a material breach of any of Your obligations under this Agreement and subject to the minimum payment amount set forth in Section 8.5 of this Agreement, within thirty (30) days after the end of each month Yandex will transfer to You an amount equal to the Net Revenue less the Agent Fee plus the Transactional Taxes regarding such month.
8.5. Minimum Payment Amount. Yandex shall have no obligation to effect payment to You in any month in which the total amount You are owed is less than one hundred US Dollars (USD 100). Amounts under one hundred US Dollars (USD 100) will be retained and accumulated with amounts accruing in subsequent months until thirty (30) days after the end of the month in which the total amount payable comes to exceed one hundred US Dollars (USD 100). Accumulated amounts shall not accrue any interest.
9. CONTENT REMOVAL
9.1. Content Removal by You
9.1.1. You may remove Your Content from future distribution through the Store at any time, provided that the removal of Your Content shall not:
a) affect the license rights of End Users who have previously licensed Your Content; or
b) lead to removal of Your Content from Devices or from any part of the Store where previously licensed Content is stored on behalf of End Users; or
c) change Your obligation to deliver or support Your Content or services that have been previously licensed or purchased by End Users.
9.1.2. If You remove Your Content from the Store as a result of an allegation of a certain wrongdoing that constitutes a violation of Section 3.6 of this Agreement, You shall immediately notify Yandex about it and, if Yandex instructs You so, charge back to the affected End User who licensed such Content within a year before the date of removal all amounts paid by such End User for such affected Content.
9.1.3. Notwithstanding the foregoing, in no event will Yandex maintain anywhere in the Store(s) any Content if You have removed such Content from the Store(s) and if either (a) You have provided written notice thereof to Yandex or (b) Yandex otherwise becomes aware that such removal was due to any actual or alleged violation of Section 3.6 of this Agreement.
9.2. Content Removal by Yandex
9.2.1. Yandex may block or remove Your Content from the Store, if Yandex is notified by You or otherwise becomes aware or determines at its sole discretion that Your Content or any portion thereof or any related materials:
a) are in violation of Sections 3 — 7 of this Agreement; or
b) violates Yandex's policies or policies applicable within the Yandex Group as set forth by Yandex or the respective entity within the Yandex Group and may be amended by Yandex or the respective entity within the Yandex Group from time to time;
c) has a serious default, is of low quality, or (in the opinion of Yandex) creates excessive uninstallations or Chargebacks;
d) may create liability for Yandex, any entity within the Yandex Group, the Processor, and/or any of their contractors or partners.
9.2.2. Yandex reserves the right, at its sole discretion, to suspend and/or remove Your Content or any associated material from the Store, as well as to bar You from the Store by suspending and/or deactivating Your Yandex Store account.
9.2.3. Yandex reserves the right to remove Your Content if it is in violation of the terms of service of Device manufacturers, mobile network operators and/or other partners with whom Yandex has entered agreements to place the Yandex Store (or, as the case may be, Partner Store) software on Devices.
9.2.4. If Your Content is removed due to violation of Section 3.6 of this Agreement, You shall charge back to Yandex all amounts received by You, plus any Chargebacks or, if You fail to do so, such amounts may be withheld by Yandex, at its sole discretion, from any future amounts due to You.
10. REPRESENTATIONS AND WARRANTIES
10.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE STORE IS AT YOUR SOLE RISK AND THAT THE STORE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
10.2. YANDEX SHALL NOT HAVE ANY OBLIGATION TO (ALTHOUGH IT MAY) MONITOR YOUR CONTENT, ASSOCIATED MATERIALS AND INFORMATION OR YOUR USE OF THE STORE FOR COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS OR THIS AGREEMENT.
10.3. YANDEX FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.4. Your representations and warranties. You hereby represent and warrant that:
10.4.1. You have the full power, legal right and authority to enter into this Agreement and perform the obligations thereunder;
10.4.2. if You are agreeing to be bound by this Agreement on behalf of Your employer or other entity You represent, You have full legal authority to enter into this Agreement on behalf of such employer or entity;
10.4.3. the information You provide to Yandex under this Agreement is true and accurate;
10.4.4. Your Content as submitted and as subsequently updated or upgraded complies with Sections 3.5 and 3.6 of this Agreement; and
10.4.5. You have all intellectual property rights and permissions in relation to Your Content allowing You to distribute the Content (including the third-party materials in Your Content, if any) under the terms and conditions of this Agreement and to license the rights in and to such.
10.5. Except for the express representations and warranties set forth in this Agreement, neither You nor Yandex make any other representations or warranties. Each party expressly disclaims all other representations or warranties, express or implied.
11. INDEMNIFICATION
11.1. You hereby agree to indemnify, defend and hold harmless Yandex, any entity within the Yandex Group, the Processor, their respective affiliates, contractors, partners, successors, assigns, as well as their respective directors, officers and employees from and against all claims, demands, actions, proceedings, liabilities, damages, losses, costs and expenses (including reasonable legal fees) arising out of or in relation to or accruing from:
11.1.1. any actual or alleged breach of Your obligations, representations and/or warranties under this Agreement;
11.1.2. Your actions or Your Content actually or allegedly infringing the intellectual property rights of any third party;
11.1.3. Your actions or Your Content actually or allegedly violating the personal information or privacy rights of any person;
11.1.4. Your actions or Your Content actually or allegedly violating any applicable data protection, or consumer protection or unfair competition law;
11.1.5. Your actual or alleged breach of any warranty, representation or other obligation (including but not limited to any support and maintenance obligation) to End Users; or
11.1.6. taxes according to Section 4.5 of this Agreement (including any claims against Yandex due to joint and several liability provisions).
12. LIABILITY
12.1. AS THE PRINCIPAL, YOU ARE AND SHALL BE SOLELY LIABLE FOR ANY AND ALL CLAIMS, DEMANDS, ACTIONS, PROCEEDINGS, LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES INVOLVING OR RELATING TO THE CONTENT, INCLUDING VIOLATION OF ANY THIRD PARTY RIGHTS OR CONTRACT, ANY LAW OR REGULATION, BY DISTRIBUTION OF THE CONTENT UNDER THIS AGREEMENT.
12.2. In case of a material breach by You of this Agreement (including but not limited to any breach by You of Sections 3.5, 3.6, 4.5 or 7.1 of this Agreement), Yandex may notify You of the material breach and suspend payment of the outstanding amounts owed to You (with no interest to be paid for such suspension) until You remedy the breach within the period given to You by Yandex for these purposes, such period being not less thirty (30) calendar days.
12.3. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTIONS 3.5, 3.6, 4.5 OR 7.1 OF THIS AGREEMENT OR WITH RESPECT TO YOUR OBLIGATIONS UNDER SECTION 11 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, ANY ENTITY WITHIN THE YANDEX GROUP, THE PROCESSOR, THEIR RESPECTIVE AFFILIATES, CONTRACTORS, PARTNERS, SUCCESSORS, ASSIGNS, AS WELL AS THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE FURNISHING, FUNCTIONING, USE, DISTRIBUTION OR, MARKETING OF THE CONTENT OR ANY RELATED ITEM OR SERVICE PROVIDED BY YOU OR YANDEX INCLUDING LOSS OF DATA. IN NO EVENT SHALL YANDEX’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF AGENT FEES YANDEX RECEIVES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING ANY SUCH CLAIM. Notwithstanding the foregoing, or anything to the contrary herein, in no event will the exclusion of damages or limitations of liability apply to liabilities that cannot be limited by law.
12.4. If Yandex becomes aware of Content with child abuse or any other illegal materials subject to criminal law, Yandex may report it to the appropriate authorities and delete Your Yandex Store account as well as Yandex Store accounts of those involved, as determined at Yandex’s sole discretion, with the distribution of such Content.
12.5. Yandex shall not be liable for any delay or failure to fulfill its obligations hereunder that results from acts of God, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, failure or fluctuation in electrical power or other utility services or other cause beyond its control.
13. TERM AND TERMINATION
13.1. This Agreement commences on the date of Your online or email acceptance (as described below), and shall remain in effect until terminated as provided in this Section 13.
13.2. You may terminate this Agreement in whole or in part by removing, respectively, all or part of Your Content from the Store as described in Section 9.1 of this Agreement. Yandex may terminate this Agreement in whole or in part by removing, respectively, all or part of Your Content from the Store as described in Section 9.2 of this Agreement.
13.3. Either party may terminate this Agreement for any reason or without reason and at any time by giving the other party a ninety (90) days prior written notice. Either party may terminate this Agreement if the other party is in a material breach of any term or condition of this Agreement and such breach is not remedied for a period of thirty (30) calendar days (or a longer period if allowed to the party in breach by the other party) after the party in breach has been notified of the breach by the other party.
13.4. Yandex may terminate this Agreement unilaterally by giving You a written notice with an immediate effect if Yandex is required to terminate the Agreement by law or Your Content violates any of the restrictions under Section 3.5, 3.6, 4.5 or 7.1 of this Agreement.
13.5. Rights and Duties Upon Termination. In the event of termination of this Agreement:
13.5.1. You shall remove any and all of Your Content (or, in the event this Agreement is terminated in part, the respective part of Your Content) from the Store as provided in Section 9.1 of this Agreement, and, if the Agreement is terminated in full, cease using Your Yandex Store account;
13.5.2. Yandex may (but shall not be obligated to unless You remove Your content as provided in Section 9.1 of this Agreement) remove Your Content from the Store and stop distributing Your Content after the effective date of such termination;
13.5.3. upon removal of Your Content from the Store, Yandex shall destroy any copies of Your Content and associated materials, except for one copy of each that Yandex may retain solely for archival purposes;
13.5.4. within thirty (30) days after Your Content is removed from the Store, Yandex shall provide You with a statement of all outstanding amounts due to You under this Agreement with respect to such Content;
13.5.5. Yandex may set off the outstanding amounts against the damages, losses, cost, expenses incurred by Yandex as a result of any claim arising from Your material breach of this Agreement and transfer the residue to You, such money bearing no interest;
13.5.6. You shall be responsible for continued support of Your Content licensed to End Users.
13.6. You acknowledge and agree that the termination of this Agreement does not terminate the rights or licenses of any End User to continue to use Your Content, if Your Content was licensed by the End User prior to the effective date of termination.
14. GENERAL PROVISIONS
14.1. Either party may sublicense, assign or delegate any right or duty hereunder to any of its affiliates without the consent of the other party but with a ninety (90) days’ prior written notice, unless otherwise provided for in this Agreement.
14.2. This Agreement will not be construed to create a joint venture or partnership between the parties.
14.3. All notices under or relating to this Agreement may be sent by e-mail or by registered mail to the address below or to any other address the parties may designate in writing and shall be deemed effective upon receipt.
14.4. Yandex may, from time to time, modify the terms of this Agreement by:
14.4.1. posting the revised agreement on its website and notifying You of the change by e-mail; or
14.4.2. notifying You of the change by e-mail and forwarding a copy of the revised Agreement to You electronically upon Your request; or
14.4.3. any other means reasonably deemed suitable to inform You of the terms of the revised Agreement; or
14.4.4. posting the revised agreement on its website.
14.5. UNLESS YOU REMOVE ANY AND ALL OF YOUR CONTENT FROM THE STORE AS PROVIDED IN SECTION 9.1 OF THIS AGREEMENT (IN WHICH CASE THIS AGREEMENT SHALL BE AUTOMATICALLY TERMINATED) WITHIN FIVE (5) BUSINESS DAYS FROM THE DAY OF RECEIVING NOTICE OF CHANGES TO THIS AGREEMENT, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THE REVISED AGREEMENT AND THE REVISED AGREEMENT WILL TAKE EFFECT AND BE BINDING ON BOTH PARTIES AT THE END OF SUCH FIVE (5) BUSINESS DAY PERIOD UNLESS OTHERWISE EXPRESSLY PROVIDED IN YANDEX’S NOTIFICATION OF THE CHANGES TO YOU.
14.6. This Agreement (and any question about its subsistence, effect or termination) is governed by and to be interpreted in accordance with the laws of Switzerland, except that body of laws regarding conflict of laws. In the event of a dispute arising out of or relating to this Agreement (including non-contractual disputes or claims), the parties shall first seek settlement of that dispute by negotiation. Any dispute arising out of or in relation to this Agreement shall be finally settled by, and the parties hereby agree to and waive any objections against (including but not limited to objections under forum non conveniens) the exclusive jurisdiction and authority of, the competent courts of the canton of Lucern, Switzerland. Nothing in this Agreement will be deemed as preventing either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as is necessary to protect either party's name, proprietary information, trade secrets, know-how, or any other intellectual property rights. Should any arbitration, litigation or other proceedings (including proceedings in bankruptcy) be commenced arising out of, concerning or related to any provision of this Agreement, or the rights and duties of any person or entity hereunder, the prevailing Party (solely as between You and Yandex) in such litigation or proceeding shall be entitled, in addition to such other relief as may be granted, to recover its actual attorneys’ fees, costs, disbursements and expenses incurred by reason of such proceedings.
14.7. The Parties hereto have expressly agreed that this Agreement and related documents shall be written and interpreted in the English language. Any notices required or provided under this Agreement shall be in English. In the event of any conflict between the English version of this Agreement (or any notices) and a translation, the English version will prevail.
14.8. If any court of law having the jurisdiction to decide on this matter rules that any provision of this Agreement is invalid, then that provision shall be deemed removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
14.9. This Agreement (and its exhibits, attachments and addenda, if any) set forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersede all prior agreements, understandings and negotiations with respect to the subject matter hereof.
14.10. A printed version of this Agreement, a facsimile copy of it and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
14.11. Sections 7, 8, 11, 13.5 and 14 of this Agreement shall survive the expiration or termination of this Agreement.
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APPENDIX — TERMS AND CONDITIONS FOR OFFLINE RETAIL STORE DISTRIBUTION
1. In addition to the terms and conditions of the main body of the Agreement, if and as long as You choose not to charge any End User Fees for Your Content, You also hereby authorize Yandex to provide distribution services (“Services”) to You by marketing and/or distributing such Content to End Users via physical, non-online retail stores owned and/or operated by third parties in particular without limitation for selling or otherwise procuring or promoting Devices to End Users (each, a “Retail Store”). The distribution under the Services shall occur in Yandex’s own name.
2. For the purposes of Yandex providing the Services to You, You hereby grant Yandex additionally a non-exclusive, irrevocable (to the extent set forth herein), sub-licensable (to the extent set forth herein), royalty-free, perpetual, worldwide right and license to:
2.1. use, copy, reproduce and/or install (and/or have used, copied, reproduced and/or installed namely by third parties operating Retail Stores or their service providers) the Content on an unlimited number of devices (including Devices but not limited to them and including servers and server-like devices such as distribution terminals accessible by End Users and/or Retail Store staff), and
2.2. market and distribute and make the Content publicly available (by installing and/or reproducing or allowing third parties to install and/or reproduce, or making available for installation and/or reproduction and/or marketing, or otherwise) the Content, publicly perform or display the Content.
3. Yandex may sublicense any right and license granted to it under Section 2 of this Appendix to any third party without Your additional consent. Yandex shall only sublicense its rights in Your Content for the purposes of and as contemplated under the Services to You hereunder.
4. Yandex shall have no obligation to provide to You any reports or to render any accounts with regard to Services or the distribution of Your Content via Retail Stores. Yandex will, however, use its reasonable efforts to provide You with statistical data and/or other information with regard to Services via the Yandex Store developer console interface. Such information is provided without obligation and as is, and Yandex hereby expressly disclaims any warranty, whether express, implied or statutory, of such information’s accuracy, completeness or relevance.
5. This Appendix may be terminated together with the Agreement, in full or in part with regard to certain Content, only if the Agreement is terminated in full or in the respective part as provided in Section 13 of the Agreement. Notwithstanding the foregoing, You may terminate this Appendix (separately from the Agreement) by choosing to opt-out of the Services using the tools provided to You by Yandex (including by sending an e-mail containing Your express will to opt-out of the Services to retail@yandex-team.ru from Your e-mail address registered in Your Yandex Store account).
6. If this Appendix is terminated (whether together with the Agreement or separately), Yandex shall be entitled to provide Services and to use Your Content as provided in Section 2 of this Appendix for additional 30 (thirty) business days after the effective date of termination.
7. This Appendix constitutes an integral part of the Agreement, and shall be considered accepted and agreed to by You if and as long as You have accepted the Agreement. Sections 2, 3, 5, 7, 9, 10, 11, 12, 13, 14 of the Agreement shall be directly applicable (with respective changes) to Your relationship with Yandex concerning Services and distribution of Your Content via Retail Stores and as otherwise contemplated in this Appendix.
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BY CREATING A YANDEX STORE ACCOUNT (INCLUDING BUT NOT LIMITED TO SUBMITTING YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON “ACCEPT” OR OTHER BUTTONS PROMPTING YOU TO ACCEPT THIS AGREEMENT ON THE RELEVANT YANDEX STORE ACCOUNT REGISTRATION PAGE), BEGINNING TO USE THE STORE (INCLUDING BUT NOT LIMITED TO SUBMITTING ANY OF YOUR CONTENT TO THE STORE) AND/OR REPLYING “I AGREE” TO THE EMAIL WITH THIS AGREEMENT, YOU: (I) REPRESENT AND WARRANT THAT THE INFORMATION PROVIDED BY YOU IS TRUE AND ACCURATE; YOU HAVE THE FULL LEGAL CAPACITY NECESSARY TO ENTER INTO THIS AGREEMENT UNDER ANY LAW THAT MAY BE APPLICABLE TO YOU, AND THAT YOU ARE, IN ANY CASE, AT LEAST EIGHTEEN (18) YEARS OLD; YOU ARE EITHER THE CONTENT OWNER OR AN AUTHORIZED OR LEGAL REPRESENTATIVE OF THE CONTENT OWNER, AND HAVE THE POWER AND AUTHORITY TO BIND THE CONTENT OWNER TO THIS AGREEMENT AND ENTER INTO THIS AGREEMENT ON ITS BEHALF; AND (II) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT (INCLUDING THE APPENDIX), UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND/OR HAVE CAUSED THE CONTENT OWNER TO DO SO.
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