of New Apex LLC on February 10, 2022
This version of the licensing agreement was
published on 10.02.2022 and entered into force
upon publication thereof.
This public licensing agreement on the use of a software application (hereinafter referred to as the Agreement) sets out the procedure for the transfer by the rightholder of non-exclusive property rights to use an intellectual property and copyright item in the form of a software application to the licensee, the rights and obligations of the Parties under this Agreement, and the procedure of interaction between the New Apex Limited Liability Company, hereinafter referred to as the Licensor, represented by Ye. S. Glazov, Director, acting on the basis of the Charter, for one Party, and the recipient of non-exclusive property rights, hereinafter referred to as the Licensee, who has taken (accepted) the public offer (offer) to conclude this Agreement, for the other Party.
1. General Provisions and Definitions
1.1. The following terms and definitions are used in this Agreement:
Acceptance - full and unconditional acceptance by the Licensee of the provisions of this Agreement by paying a license fee;
Basic software application – Wialon software package for satellite monitoring and control of mobile units based on the client-server technology with support of GSM and GPRS;
Software Application (Application) – computer software, including the web-version thereof, both as a whole and its components, which constitutes a complex of data and commands that exist physically and include the source text, databases incorporated in the above application, as well as any user documentation developed on the basis of the Wialon software package and (or) using its operational data;
Simple (non-exclusive) license – a set of rights to use the Software Application granted to the Licensee, as defined by the period of time and the feature set available in the Software Application;
Access Code – a sequence of characters transferred to the Licensee by the Licensor, the input of which into the database managed by the Software Application makes the Software Application fully operational for a certain period of time;
Licensor – New Apex LLC;
2. Subject of the Agreement
2.1. The Licensor hereby grants the Licensee a simple (non-exclusive) license to use the Application in the ways, to the extent, and on the terms and conditions set forth in this Agreement on a fee-paid basis.
2.2. The Application can be configured solely to ensure its operation on the Licensee's electronic devices. This can be done by the Licensee independently or with the involvement of the Licensor, under an agreement concluded separately.
3. Scope and Ways of Using the Application
3.1. Under this Agreement, the Licensor grants the Licensee non-exclusive property rights to use the Application in the territory defined in the Agreement in the following ways:
3.1.1. installing the Application on a personal computer (laptop) or other electronic device(s) of the Licensee;
3.1.2. launching the Application and working with it, that is, using the functionality featured in the Application;
3.1.3. performing actions necessary to ensure operation of the Application as intended, including saving and storing the Application in the computer's RAM (without any restrictions on the number of electronic computer devices and the number of users of the Licensee's computer network);
3.1.4. configuring the Program solely to ensure its operation on the Licensee's electronic devices and collaboration with other computer programs (software applications);
Other ways of using the Application or components thereof are prohibited.
3.2. The right to use the Application transferred by the Licensor to the Licensee under this Agreement are valid throughout the world (hereinafter referred to as the Territory).
3.3. Under this Agreement the Licensor transfers to the Licensee the right to use the Application for the whole period of validity of this Agreement from the date of its conclusion.
3.4. The Licensee shall be the end user of the Application, unless otherwise agreed upon by the Parties at the time of Acceptance.
3.5. The Licensee is not entitled to transfer the right to use the Application under sublicense agreements to third parties, both within the validity period of this Agreement and after expiration thereof.
3.6. The Application is provided "as is", in accordance with international practice.
4. Procedure for the Conclusion of the Agreement
4.1. This Agreement is a public agreement by virtue of Article 396 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code). Pursuant thereto, the Licensor undertakes to provide a simple (non-exclusive) license to use the Application under this Agreement on a fee-paid basis to anyone who addresses the Licensor with a respective request.
4.2. Placement of the text of this Agreement on the Licensor's website at the following address: https://wialon.by/apps/offer-en.html shall constitute a public offer (offer) of the Licensor regarding conclusion of an Agreement addressed to an indefinite circle of persons, by virtue of Paragraph 2 of Article 407 of the Civil Code, as well as the Licensor's action undertaken to familiarize this indefinite circle of persons, including the Licensee, with the approved terms and conditions of the Agreement, and to inform them that a simple (non-exclusive) license to use the Application is granted by the Licensor on the basis of this Agreement.
4.3. The terms and conditions of this Agreement were approved by the Licensor and set out in this standard form. This Agreement is an accession agreement, therefore, to conclude the Agreement, the Licensee shall accede to it through unconditional acceptance (acceptance) of the terms and conditions thereof in their entirety without any exceptions, in accordance with Paragraph 1 of Article 398 of the Civil Code.
4.4. This Agreement shall be concluded in a simple written form, in accordance with Paragraphs 2 and 3 of Article 404 and Paragraph 3 of Article 408 of the Civil Code, through payment of a license fee by the Licensee to the Licensor in the manner and on the terms defined by this Agreement, which in itself constitutes nothing but acceptance of the terms and conditions of this Agreement by the Licensee. The Parties shall recognize performance of such actions by the Licensee as an expression of their consent to accede to this Agreement, which includes confirmation of the fact that the Licensee had read and understood the terms and conditions of this Agreement.
5. Rights and Obligations of the Parties
5.1. The Licensor has the right to:
5.1.1. receive a license fee for granting the right to use the Application within the scope and methods of its use provided for in Section 3 of this Agreement. The amount and manner of payment of the license fee are set out in Section 6 of this Agreement;
5.1.2. introduce any technological changes to the Application at their own discretion, without the need to secure the Licensee's consent;
5.1.3 unilaterally refuse to execute this Agreement in case of violation of the terms and conditions (methods of use) of using the rights to the Application under this Agreement by the Licensee.
5.1.4. enter into license agreements on granting the right to use the Application with other persons in the Territory specified in the Agreement.
5.1.5. exercise other rights provided for in the current legislation of the Republic of Belarus.
5.2. The Licensor is obliged to:
5.2.1. subject to proper fulfillment by the Licensee of the obligation to pay the license fee, grant the Licensee the rights and opportunity to use the Application within the scope specified in this Agreement. The Licensor shall provide the Licensee with an Access Code for the period of time paid for by the latter by sending the Access Code to the Licensee's contact email address within one (1) business day following the day of receipt of full payment;
5.2.2. based on the information provided by them, register the Licensee as an Application user;
5.2.3. if the Licensee has a valid License, to provide them with software updates, hotfix packages, and addons, as well as with new versions of the Application as soon as they become available;
5.2.4. in case of transfer (or other kind of alienation) of exclusive rights to the Application to third parties (including subsidiaries and/or parent companies or structures, as well as any affiliated persons), stipulate in the relevant contracts/agreements that all obligations of the Licensor under this Agreement shall be transfered to the named person(s) (legal successor(s).
5.3. The Licensee has the right to:
5.3.1. configure the Application's settings depending on their accounting system without introducing changes to the Application;
5.3.2. use the functionality of the Application exclusively under the terms and conditions established by the Rightsholder (Licensor);
5.3.3. Declare withdrawal from this Agreement unilaterally as provided for in this Agreement.
5.4. The Licensee is obliged to:
5.4.1. inform the Licensor that the license fee payment has been effected and send a copy of the payment document to the Licensor's e-mail address: email@example.com specified in Section 14 of this Agreement;
5.4.2. let the Licensor know their payment details and other information to enable the Licensor to unilaterally draw up a certificate of delivery and acceptance of non-exclusive rights to use the Application, as well as share their electronic address for the Licensor to provide them with an Access Code;
5.4.3. not disclose the Licensor's commercially sensitive information, nor to make public confidential information that becomes known to the Licensee in the course of execution of this Agreement, and to use such information only for the purposes and within the framework of execution of this Agreement;
5.4.4. pay the Licensor the license fee in the amount, according to the procedure, and on terms and conditions established by this Agreement;
5.4.5. upon expiration of this Agreement, immediately stop excersising all and any rights granted to them under this Agreement and erase all copies of the Application from all electronic data carriers and computer devices owned by the Licensee;
5.4.6. use the Application only within the boundaries of rights and in the ways set out in this Agreement, and only in line with its original purpose and functionality.
5.5. The Licensee is not allowed to:
5.5.1. make copies of the Application and (or) introduce changes to the Application's source software code by converting the Application's object code into source text (decompiling and (or) deobfuscation of the Application);
5.5.2. remove or change any copyright marks or indications within the transmitted Application (software), as well as trademarks or other kinds of Licensor's branding;
5.5.3. enter into sublicense agreements on granting the right to use the Application with third parties, unless otherwise agreed upon by the Parties at the time of Acceptance;
5.5.4. use the information obtained when configuring the Application to create other similar software applications, or to perform actions that violate the Licensor's copyright in relation to the Application.
6. Amount and Procedure of License Fee Payment
6.1. The amount of the license fee payable to the Licensor for the transfer of non-exclusive rights to use one (1) copy of the Application is specified in the Annex to this Agreement.
6.2. The Licensee shall pay the Licensor a license fee for granting non-exclusive rights to use the Application in the amount provided for in Section 6.1. of this Agreement in full and as a 100% advance payment prior to receiving the above rights to use the Application. Upon expiration of the paid period of use of the Application the license fee is payable on the current terms and conditions in accordance with this Agreement.
6.3. Payment of the license fee to the Licensor under this Agreement shall be made by the Licensee in a non-cash manner by transferring funds to the Licensor's current (settlement) account by payment order using the bank details specified in Section 14 of this Agreement in Belarusian rubles. The Purpose of Payment field should read as follows: "Payment of the license fee for the transfer of non-exclusive rights to use the (specify the name of the application) software application under a public license agreement". Otherwise, the Licensee may use the automated payment system available on the Licensor's website at https://wialon.by.
The moment when the Licensee fulfills their obligation to pay the license fee is the moment when the respective funds are credited to the Licensor's current (settlement) account.
7. Procedure for the Transfer of Rights
Guided by the Resolution of the Ministry of Finance of the Republic of Belarus No. 13 dated February 12, 2018 "On individual execution of primary accounting documents", the Parties hereby confirm and agree that the Certificate under this Agreement shall be executed by each of the Parties individually. Within ten (10) banking days from the date when the advance payment is effected in full, the Licensor shall send the Certificate executed by them to the Licensee for their information by regular mail or e-mail, or as an electronic document via podpis.by service, or deliver it personally to the Licensee's representative, at their own discretion.
7.2. The Licensor, acting in coordination with the Licensee, shall transmit a copy of the Application to them by sending the Access Code a to the Licensee's e-mail address.
7.3. If within five (5) working days from the date of the Licensor's submission of the Certificate to the Licensee the former does not receive any reasoned objections to this Certificate, the rights to use the Application shall be considered duly transferred.
8.1. The Licensor hereby guarantees proper functioning of the Application during the entire period covered by this Agreement, as well as free of charge elimination of the Application's shortcomings that arise through the fault of the Licensor upon receipt of a notification of identified shortcomings from the Licensee.
8.2. The warranty obligations shall not cover the identified Application deficiencies that result from actions of third parties, force majeure circumstances, or deficiencies (failures) in the operation of computer or telecommunications equipment that does not belong to the Licensor.
9. Responsibilities of the Parties
9.1. In case of non-fulfillment or improper fulfillment of their obligations under this Agreement, the Parties shall be held liable in accordance with the legislation of the Republic of Belarus and this Agreement.
9.2. The Licensor shall not be liable for the operability of the Licensee's hardware and software, as well as for the operability of the Internet connection of third-party organizations.
9.3. The Parties shall not be liable for delayed performance of their obligations under this Agreement resulting from corresponding delays in the performance of their obligations by the other Party.
9.4. In case of violation of the requirements set out in Sections 5.4.5-5.4.6 and 5.5 of this Agreement, the Licensor has the right to charge the Licensee a fine of 500 basic units for each violation.
9.5. The Licensee acknowledges and agrees that no software application, including this Application, is free from software errors and failures. The Licensor shall not be liable to the Licensee for the latter's possible losses caused by the specified software failures (errors).
9.6. The Licensor's liability under this Agreement is limited to actual damage (lost benefit is not subject to compensation) and in any case cannot exceed the cost of the License for the calendar month nearest to the moment of the violation.
9.7. Responsibility for the actions (lack of action) performed by the Licensee with the help of the Application rests in full with the Licensee. The Licensee shall independently and at their own expense review and, if necessary, satisfy grievances (claims, statements of claim) raised with the Licensee or Licensor over violations by the Licensee of the rights of third parties committed when using the Application.
10.1. Within the framework of this Licensing Agreement, confidential information shall mean any materials, data, and information of a technical nature transmitted by the Licensor to the Licensee in any possible form, including in writing, orally and in electronic formats, in the form of images, algorithms, data models, computer software, source, executable, configuration or setup texts of programs, in three-dimensional or any other form, inter alia, using technical means.
10.2. Any algorithms, interface design, information concerning database structure, data models, source, executable, configuration or setup program texts and other documents, program object code and/or know-hows transferred to the Licensee under this Agreement shall be considered confidential information.
10.3. Each of the Parties shall take all necessary measures to protect the confidential information of the other Party. At the same time, the Parties hereby undertake to inform their staff (including possible subcontractors) about the sensitive nature of confidential information and the fact that copying or disclosure of such confidential information is prohibited.
10.4. In case of violation of the prohibition established by this Section (Section 10) of the Agreement, namely, in case of intentional or unintentional disclosure of confidential information, the defaulting Party shall compensate the other Party for the harm and damage caused by such disclosure in full.
10.5. The Parties have the right to include any references to the performance of the Agreement, the name of each of the Parties, and the general nature of the Application in any presentations, offers to potential clients, brochures, news publications, articles, books, as well as to post them on their own websites, include them in printed and electronic databases, place them in information digests, newspapers and other Belarusian and foreign mass media, except for the cases when the Party indicates in writing that certain information referred to in this Section cannot be disclosed.
10.6. In accordance with the terms of Section 12 of this Agreement, the above obligations are assumed by the Parties for the entire duration of this License Agreement, as well as for a period of ten (10) years following its expiration.
11. Dispute Resolution Procedure Applicable Legislation
11.1. The Parties shall, if possible, resolve disputes and disagreements that may arise in the course of execution of this Agreement through negotiations and (or) by submitting claims (written proposals for voluntary settlement) in accordance with the current legislation of the Republic of Belarus, unless otherwise provided for in this Agreement.
11.2. Should the Parties fail to reach agreement, inter alia, in absence of response to the claim within the specified period, any dispute, disagreement or claim arising or relating to this Agreement or its violation, termination or invalidity, shall be subject to consideration by the appropriate judicial authority, in accordance with the current legislation of the Republic of Belarus.
12. Contract Duration. Contract Amendment and Termination
12.1. This Agreement shall take effect upon its conclusion (by way of accession thereto by the Licensee through performance of actions provided for in this Agreement) and fulfillment by the Parties of their obligations, with account of the period of time for which the rights to use the Application are granted.
12.2. Amendments and/or supplements to this Agreement shall be introduced unilaterally by the Licensor's decision. Amendments and/or supplements introduced to this Agreement by the Licensor on their own initiative shall enter into force not earlier than the day following publication of the respective amendments and/or supplements on the Licensor's website (https://wialon.by/apps/offer-en.html ).
12.3. Amendments and/or supplements introduced to this Agreement by the Licensor in connection with changes in legislation shall enter into force simultaneously with the entry into force of changes in the respective legislative acts.
12.4. The Parties unconditionally agree that silence (absence of written notices of termination of this Agreement or disagreement with certain provisions of this Agreement) shall be recognized as consent and accession of the Licensee to the new version of this Agreement, in accordance with Paragraph 3 of Article 159 of the Civil Code.
12.5. The Licensor shall bring the text of amendments and/or supplements to this Agreement, or the new version of the latter, to general notice by posting (publishing) relevant information on their website (https://wialon.by/apps/offer-en.html ).
12.6. The Licensor has the right to unilaterally terminate this Agreement out of court in cases stipulated by the legislation of the Republic of Belarus, as well as in case of violation by the Licensee of their obligations under this Agreement. In that case, the Contract shall be considered terminated from the day following the receipt by the Licensee of a corresponding written notice from the Licensor.
12.7. The Licensee has the right to inform the Licensor of withdrawal from the Agreement before its maturity by notifying the former in writing at least one (1) calendar month before the expected date of withdrawal from the Agreement. The amount paid earlier as a license fee is not refunded.
13. Other conditions
13.1. Parties recognize the legal force of documents transmitted by facsimile, e-mail, and other means of communication that allow to reliably determine that the document comes from the sending Party relying on contact numbers and bank details specified in this Agreement or in the Party's written notice.
13.2. The Parties shall inform each other about changes in their legal and postal addresses, telephone numbers, fax numbers, and e-mail addresses within three (3) working days from the date of their change. All adverse consequences of the lack of notification of the new bank and contact details of the other Party, which constitutes violation of the terms and conditions of this Agreement, shall be borne by the defaulting Party.
13.3. Should one Party fail to notify the other Party of a change in their legal (postal) or electronic address, documents sent in fulfillment of the Agreement to the address of the recipient Party specified in the Agreement shall be considered to be sent to the appropriate address for the purpose of calculating the timeline established by this Agreement and the legislation of the Republic of Belarus.
13.4. Due to the fact that the Parties transfer to each other the personal data of their staff involved in the execution of this Agreement, the transmitting Party (operator) guarantees to the recipient Party (authorized person) that they have obtained the consent of these employees for such transfer, as well as for processing (collection, systematization, modification, use, and provision within each of the Parties) and storage of personal data (full name, organization, position, phone number, e-mail address, audio recording of telephone conversations and data contained in documents (if these are transferred under this Agreement)) required by law for the purposes of execution of this Agreement, as well as interaction within the framework of discussion and conclusion of new contracts, maintenance of software products and implementation of interrelated economic activities of the Parties. Transferred personal data shall be stored for the period of validity of this Agreement and two years after its expiration, with the exception of the data contained in the documents, the term of storage of which corresponds to the term of storage of relevant documents established by law. During the specified period, the Parties undertake to take legal, organizational, and technical measures to ensure protection of the received personal data from unauthorized or accidental access, modification, blocking, copying, distribution, provision, and deletion, as well as from other illegal actions with respect to personal data, in accordance with their current local legislative acts regulating the protection of personal data. Following expiration of the specified period, the Parties shall delete or block the personal data received, unless there are other grounds for processing them.
13.5. In all and any other instances not provided for in this Agreement, the Parties shall be guided by the current legislation of the Republic of Belarus.
14. Addresses, bank details and signatures of the Parties
14.1. The Parties shall consider information indicated in the payment document confirming payment of the license fee to the Licensor, as well as that sent by the Licensee to the Licensor following conclusion of this Agreement, and the information subsequently sent to the Licensor to notify the latter of changes in the Licensee's details to be the Licensee's details.
14.2. Licensor's details:
New Apex Limited Liability Company
E. Polotskoy Str. 3, office 59, 220121 Minsk, Belarus
UNP 191184526, OKPO 378482165000
Tel.: 8(017) 367-51-74; 8(017) 367-51-76
Fax: 8(017) 367-51-78
Account No.: BY39UNBS30120321600010000933
at BSB Bank CJSC, bank code: UNBSBY2X
Bank's address: Pobediteley Ave. 23, building 4, 220004 Minsk, Belarus