Appendix No. 2
to the Offer for user acquisition to the websites
1. TERMS AND DEFINITIONS
Website VKontakte (Website, VKontakte) shall mean the VKontakte Website (domain – http://vk.com and all the levels thereof including the mobile version and mobile clients, both functioning at the date of conclusion hereof and launched or commissioned during the entire period of validity hereof), the social network, in respect to which the Customer has the rights for conclusion of relevant contracts.
Application shall mean an Embedded Game or Downloadable Game hosted on the Website using the Application Programming Interface (API).
Embedded Game shall mean a game requiring the User to have access to the Internet and open the relevant Website page in a supported browser or the mobile client of the Website.
Downloadable Game shall mean a game requiring the User to install it on his/her personal computer (PC).
User shall mean the individual which is registered at the Website according to the procedure set by the Terms of Service.
API (Application Program Interface or Interface) means a set of rules and agreements regarding call format and procedure of program solutions interactions.
VKontakte system (System) shall mean a hardware and software complex located at https://vk.com, which contains, inter alia, information on Applications posted by the Contractor.
2. RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1. The Contractor shall:
2.1.1. Maintain normal performance of the API Applications that ensures User acquisition, in compliance with the Platform Rules (http://vk.com/dev/rules), Regulations on placing ads in API Applications (https://vk.com/dev/adterms) and Regulations on placing web stores in API Applications (https://vk.com/dev/ecommerce_terms) to perform its obligations herein. The list of API Applications is determined based on the data of the System.
2.1.2. Provide users with informational and consultinga services connected with using the API Applications uploaded by the Contractor to VKontakte.
2.1.3. Ensure that the API Applications are working properly 24 hours a day, 7 days a week, and 365 days a year with the exception of maintenance work on which the Contractor must notify the Customer no later than 1 (one) calendar day before the start of such work.
2.1.4. Ensure that at any time during the term of this Agreement the cost of the services provided to Users within the Embedded Games, as well as the cost of the Downloadable Games posted by the Contractor and/or its affiliates on the Website, does not exceed the cost of similar services provided within the framework of similar Embedded Games, and also the cost of Downloadable Games posted by the Contractor on third-party Internet platforms (e.g. https://my.mail.ru, https://facebook.com, https://hi5.com, https://steam.com, https://www.gog.com, etc.), expressed in Russian rubles.
After publishing the Downloadable Game on the Website, ensure that its PC version with Russian-language localization is not posted on third-party Internet platforms that provide users with the opportunity to purchase the Game (for example, https://steam.com, https://www.gog.com, etc.), within 1 (one) year from the date of publication the Downloadable Game on the Website (exclusivity condition). The exclusivity condition does not apply to Downloadable Games already posted on a third-party Internet platform before it is published on the Website under this Agreement.
2.1.5. The Contractor hereby ensures that it has all of the rights required to upload the API Applications to VKontakte, including rights to use software, trademarks, business name and other results of intellectual activities, in accordance with the international treaties and the applicable law.
2.1.6. The Contractor hereby warrants that the form and content of the API Applications are compliant with the current laws and regulations of the Russian Federation, in particular, the Contractor agrees to classify the API Application in accordance with the Federal Law “On the Protection of Children from Information Harmful to Their Health and Development” and mark it with the corresponding informational production sign.
2.1.8. Inform the Customer on any fact of relations with the Federal Service for Supervision in the Sphere of Communications, Information Technology and Mass Communications regarding processing of personal data (including the submitting the notification of processing personal data, revealed violations, submitting any other information to the Federal Service for Supervision in the Sphere of Communications).
2.1.9. Provide reliable information about itself when uploading API Applications as well as bring that information to the attention of Users in the “Settings” section. The Contractor shall mandatorily provide the following information:
2.1.10. The Contractor agrees that it initiates the uploading API Applications to VKontakte, chooses users of API Applications, receivers of information contained in API Applications, affects functional features of working of API Applications, affects the content and entirety of information posted in API Applications.
2.1.11. The Contractor shall provide the Customer the certificate, proving the address of the company of the Contractor in the country of registration, issued by the competent authority no later than 1 (one) month after the execution of these Rules in accordance with the legislation of the Russian Federation.
2.2. The Contractor is entitled:
2.2.1. To request the information required to perform the obligations under these Rules from the Customer in writing or electronically, including through the interface of the Website.
2.2.2. To periodically conduct maintenance work on the Applications.
2.3. The Customer shall:
2.3.1. Maintain that the Website is working properly and provide the Contractor with the ability to upload API Applications to VKontakte.
2.3.2. Pay the Contractor compensation in the amount and method set forth herein.
2.3.3. Provide for accepting payments from users and converting payments into points (votes) used by users to receive the services of the API Applications including, without limitation, providing users with information on the method for receiving (paying for) points (votes) on VKontakte.
2.3.4. Provide Users with the ability to download and install the Downloadable Game.
2.3.5. The Customer does not initiate the uploading API Applications to VKontakte, does not choose users of API Applications and receivers of information contained in API Applications, does not affect functional features of working of API Applications, does not affect the content and entirety of information posted in API Applications and in the moment of uploading API Applications by the Contractor does not know and could not know, if uploading of API Application infringes others rights, international treaties and the applicable law.
2.4. The Customer is entitled:
2.4.1. To unilaterally amend or supplement the Platform Rules, Regulations on placing ads in API Applications and Regulations on placing web stores in API Applications. These Regulations may be changed and/or added unilaterally without any special notification by changing or adding these documents posted on the site VKontakte at: (а) http://vk.com/dev/rules, (b) http://vk.com/dev/adterms, (c) http://vk.com/dev/ecommerce_terms. These Appendixes are available and public documents. The current versions of the Appendixes are available on the Internet at addresses indicated in this paragraph. The Customer recommends that the Contractor check the conditions of these Appendixes regularly for changes and/or additions. The continuation of uploading API Applications without any special notification of Customer after changes and/or additions are made to these Appendixes will mean the Contractor’s consent with and acceptance of such changes and/or additions.
2.4.2. To unilaterally amend the rate of compensation for the Contractor set forth in Section 3.5 hereof. The Customer shall notify the Contractor in writing on any future changes stated in this paragraph hereof 10 (ten) calendar days before such changes are implemented.
2.4.3. At any moment request from the Contractor the copies of charter and incorporation documents and other information about the Contractor. The Contractor must provide the documents in the form and in the terms, indicated in the request of Customer. In the event of failure to provide the documents the Customer has a right to block the Contractor’s API Applications until receiving such documents.
2.4.4. On its own, to verify the Contractor’s (or its affiliates) compliance with the obligations set forth in clause 2.1.4 hereof by monitoring the existing internet platforms where the Contractor’s API Applications are or may be uploaded.
2.4.5. Moderate API Applications uploaded to VKontakte with the purpose of checking out their conformance to the technical parameters and the policy of the Website in whole. The Customer has a right to disclaim uploading API Applications under the results of moderation without explanation.
3. PAYMENT METHOD
3.1. On a monthly basis, no later than the 1st (first) day of the calendar month following the reporting period, through a special interface the Contractor provides the Customer with information:
If the Contractor fails to provide the information specified in this clause by the 1st (first) day (inclusive) of the calendar month following the reporting period, the Customer shall be entitled to defer the payment of remuneration to the Contractor to the next reporting period
3.2. In case the number/quantity:
the Customer has the right to defer the payment of the Contractor's remuneration to the next reporting period.
3.3. The Contractor shall provide the Customer with an Invoice in no later than the 10th (tenth) date of the calendar month following the reporting month.
3.4. The Contractor’s compensation consists of 2 (two) parts:
1) The monthly fee of the Contractor for publishing Embedded Games shall be calculated by the following formula:
the number of votes received from users through the Embedded Games for the calendar month shall be multiplied by the Contractor’s rate of compensation specified in clause 3.5 of the Agreement
2) The monthly fee of the Contractor for the publishing Downloadable Games is 70% (seventy percent) of the amount received from Users for granting the right to use the Downloadable Game for a calendar month.
3.5. The rate of the Contractor's compensation is RUB 3.00 (three Russian rubles) per 1 (one) vote. Each Party independently calculates and pays all applicable taxes in accordance with the laws of the state of which it is a resident.
3.6. The Customer shall transfer the compensation to the Contractor based on the Invoice issued by the Contractor no later than 60 calendar days after the end of the reporting month. The transfer shall be made in Russian rubles. The Customer includes to and Contractor referres to an invoice specific instructions and information in relation to taxes and currency exchange rates used to calculate fee and/or applicable taxes within the EU and/or any similar guides and regulations in respect of the taxes and currency exchange rates calculations.
The Customer has the right of a reasonable refusal to pay the Contractor's compensation in the presence of inconsistencies in the issued Invoice. In this case, the Parties shall conduct negotiations in order to resolve discrepancies.
4. LIABILITY OF THE PARTIES
4.1. The Parties are liable for a non-performance or improper performance of their obligations under this Agreement in accordance with the applicable law.
4.2. In the event that claims or lawsuits are made against the Customer and/or the Website owner by third parties and/or authorized governmental authorities regarding the legality of uploading the API Applications to VKontakte, the Contractor shall solely and independently settle these claims or lawsuits and shall compensate the Customer and/or the Website owner for all of the losses including costs, fines, compensations, among others, claimed by authorized governmental authorities from the Customer and/or the Website owner and also lost profit due to the breach of legal rights of third parties and/or international treaties and the applicable law at the fault of the Contractor.
4.3. For a breach of any provision of the Platform Rules and/or the Regulations on placing ads in API Applications and/ or Regulations on placing web stores in API Applications and/or any condition set forth in 2.1.1. – 2.1.11 herein the Customer has a right to apply any of the measures listed below:
warn the Contractor on the need to remedy said breach within 5 (five) calendar days and temporary block the part of the API Application in relation to which a breach was found, and/or block the account of the relevant API Application and/or block of the API Application in the event that the breach is not remedied within said term, the Customer has a right to deny the technical facility to upload the API Application to VKontakte without compensations for losses including lost profit;
or to deny the technical facility to upload the API Application to VKontakte permanently without any notification and without compensations for losses including lost profit;
or partially block the operations of the API Application and / or block the account of the relevant application API, and / or block the corresponding API Application and require the Contractor to pay a fine in an amount equal to the number of votes received by users in the period from the lock until the lock release in connection with the elimination of violations detected, but in any case not less than five hundred (500) votes (applicable only to Embedded Games).
4.4. Neither of the Parties is liable for the full or partial non-performance of its obligations under these Rules if such non-performance is the result of force-majeure, of which the following are all considered: flood, fire, earthquake and other acts of God, war or military actions, strike, and/or a decision by the Government of the Russian Federation and/or other state agencies which comes to legal force after the signing hereof, failure of the Customer software and / or information and telecommunications network Internet. If any of these circumstances directly affects the performance of the obligations under these Rules and the Offer, the term for performing the obligations shall be extended proportionally to the time of validity of such circumstances. The Party for which it has become not possible to perform obligations must inform the other Party in writing within 5 (five) calendar days on the onset of, proposed prolongation, and termination of said circumstances. The competent body or organization in the Russian Federation must approve the facts stated in the notification. Not sending a notification or not sending a notification on time shall deny the Parties the right to refer to any such circumstance as grounds freeing it from liability for not performing obligations.
5.1. The Parties shall not disclose information on the terms and conditions of this Agreement or any other information received by the Parties during the performance of their obligations herein which has potential commercial value for the Parties due to the fact that it is not known to third parties.
6.1. As part of the Services the Contractor hereby grants the Customer, on the terms of a royalty-free, non-exclusive license to use the API Application in the ways provided for in clause 6.2 hereof without territorial limitations (worldwide).
6.2. The Contractor grants the Customer the right to use the API Application in the following ways:
a) making the API Application publicly available on the Internet in such a way that anyone can access the API Application from anywhere any place and at any time;
b) download, store, install on a personal computer and play the Downloadable Game;
c) distribution of the API Application on the Internet through the Website and any of its subdomains;
d) reproduction of the API Application on the Customer’s server equipment (if the Customer has decided to test the API Application);
e) use the name of the API Application, character images, and/or individual graphic/audio/video works included in the API Application, when creating advertising and marketing materials, as well as create derivative works based on the API Application for advertising and marketing purposes.
6.3. The Customer has the right to sublicense its rights to the owner of the Website. The Contractor grants the Customer rights to the API Application to the extent sufficient for their sublicensing to the owner of the Website.
The owner of the Website has the right to sublicense the rights to Embedded Games under the terms of the standard License Agreement concluded between the owner of the Website and the Users (available at https://vk.com/licence).
The owner of the Website has the right to sublicense the rights to Downloadable Games under the terms of the standard License Agreement concluded between the owner of the Website and Users (available at the Downloadable Game’s page on the Website).
The Contractor confirms that it is familiar with the text of the License Agreements and has no objection to the owner of the Website providing Users with the right to use API Applications under the terms of the specified License Agreements.
6.4. The rights to use the API Application in accordance with the clauses 6.1-6.3 herein are provided for a period of five years with the following automatic prolongation by such period for every calendar year unless a party of these Rules declares a will for its termination within 30 calendar days prior to such termination.
6.5. The Customer shall not provide any reports to the Contractor as to the API Application use.
6.7. For the avoidance of doubt, the Parties agreed that the User to whom the right to use the Downloadable Game is sublicensed in accordance with the terms of this Agreement has the right to use the Downloadable Game even after the termination of this Agreement. For this reason, the Customer (and the Website owner) has the right to store the Downloadable Game on its servers and provide access to it to the User after the termination of this Agreement, and the Contractor undertakes to ensure that the Downloadable Game can be used by the User.
7.1. The current version of the Rules is posted by the Customer on the Internet at: https://legal.my.com/us/social/rules_vk/.
7.2. The customer has the right to unilaterally change the terms of the Rules by posting a new edition on the website. Changes take effect from the moment the modified text is posted on the website at the address: https://legal.my.com/us/social/rules_vk/. The Contractor undertakes to regularly be acquainted with the new editions and follow the Rules.
The Contractor has the right to disagree with the new terms of the conclusion of the Rules by sending a written notice (refusal) within 3 (three) days from the date of publication of the changes on the Site to the Customer. Non-receipt from the Contractor of a written notice (refusal), as well as any execution of the Rules after the changes come into force, is considered the consent of the Contractor with the new conditions and the conclusion of the Rules on the new conditions.
7.3. Issues not regulated by the present Rules shall be compliant in the part, which does not contradict the provisions of the present Rules and the Offer, with VK Terms of Service, which are available on the Website at: http://vk.com/terms.
7.4. In case of receipt by the Customer of a notice (refusal), the concluded Agreement (the Offer) is considered terminated at the initiative of the Contractor upon the expiration of 10 (ten) calendar days from the date of receipt of the notice (refusal).
7.5. The invalidity of any of the provisions of the Rules does not entail the invalidity of the Rules as a whole.