This Upgrade Services Agreement (hereinafter referred to as the "Agreement") constitutes a contract between Simtech Development Ltd., Ulyanovsk, Russian Federation (hereinafter referred to as the "Company"), and you (hereinafter referred to as the "Client").
This Agreement contains definitions and conditions of upgrading CS-Cart or Multi-Vendor on the Website of the Client.
Terms and Conditions
All terms given in this section of the Agreement shall have the following meaning for this Agreement only, and shall not be construed to suggest otherwise when used in respect of the conditions set forth in this Agreement.
CS-Cart means the copyright software registered at the Federal Service for Intellectual Property, Patents and Trademarks Regulations of the Russian Federation (certificate of official registration of a computer program #2007610394) and at the U.S. Copyright Office of the Library of Congress (certificate #TX 6-852-685).
Multi-Vendor means the copyright software registered at the Federal Service for Intellectual Property, Patents and Trademarks Regulations of the Russian Federation (certificate of official registration of a computer program #2014614177).
Program means any version, edition of the CS-Cart or Multi-Vendor including all updates
License means the right provided by the copyright owner to use one copy of the Program.
Domain Name means a unique alphanumeric character set assigned to identify a resource on the Internet.
Website means a resource on the Internet available through one Domain Name.
Website of the Client means a Website which Domain Name has a License.
Official Website of the Company means the Website of the Company available on the Internet at http://www.simtechdev.com.
Demo Site means the Website of the Company available on the Internet at http://simtechdev.net
Program Upgrade means changing a version or edition of the Program installed on the Website of the Client by the Company.
Specification means the description of the Program Upgrade project prepared by the Company in accordance with the Client's needs.
Customer Help Desk means the software installed on the Official Website of the Company and available at http://www.simtechdev.com/helpdesk.
Confidential Information means the Specification, all documents, printed materials, help and online documentation or other information related to the services rendered under this Agreement.
1. General Provisions
In order to conclude the Agreement, the Client provides truthful, accurate and complete personal information according to the form available at the Official Website of the Company at http://www.simtechdev.com/index.php?dispatch=profiles.add. The Client guarantees that the information submitted through the form is trustworthy.
According to this Agreement, the Company renders Program Upgrade services to the Client only if the Website of the Client has an active subscription to Program upgrades. The conditions of granting access to upgrades of the Program by a subscription are published at http://www.cs-cart.com/upgrade-policy.html.
The cost of Program Upgrade services is calculated based on the Program Upgrade complexity and is defined in the Specification which is an integral part of this Agreement.
2. Conditions of Rendering Program Upgrade Services
To calculate the cost of rendering Program Upgrade services, the Client shall provide the Company with the following information:
The Company prepares the Program Upgrade Specification and provides it to the Client for approval. The Specification shall include a statement of work on the Program Upgrade as well as the total amount to be paid under this Agreement and the duration of such works. After the Client has approved the Specification, the Company issues an invoice to the Client. The Client shall pay the full cost for the Program Upgrade services as specified in the invoice. After the payment has been confirmed and the Company has received the money, the Company informs the Client of the date when services for upgrading the Program will begin.
After the Client has approved the Specification and paid the invoice, no changes may be made to the Specification. If any changes or additions to the Specification are required after it has been approved and the invoice has been paid by the Client, they shall be converted into a separate Specification that shall be considered irrelative to the existing Specification. Such separate Specification shall conform to the same approval and invoice issuing/paying procedures defined in this Agreement for the Specification.
3. Program Upgrade Delivery and Acceptance
The results of the Program Upgrade services rendered by the Company are delivered and accepted step by step.Delivery:
After all the works on the Program Upgrade have been finished, the Company demonstrates and the Client tests the results of the Program Upgrade services on the Demo Site provided that the testing should not take longer than ten (10) business days. After the testing has been completed and in the event that there are no contradictions with the Specification, by agreement with the Client, either the Company installs the results of the Program Upgrade services on the Website of the Client, or it provides the Client with the results of the Program Upgrade services in the form of an archive containing the modified files and the instruction on their independent installation on the Website of the Client.
If the Client does not provide any response to the Company's notification informing that the Program Upgrade services has been finished and the Client can test it on the Demo Site for more than two weeks, the Company provides the Client with the results of the Program Upgrade services in the form of an archive containing the modified files and the instruction on their independent installation on the Website of the Client which will be made available for download on the File Area page in the Customer Help Desk.Acceptance:
After the Company has installed the results of the Program Upgrade services on the Website of the Client or from the moment the Client has been provided with such results in the form of an archive containing the modified files and the instruction on their independent installation on the Website of the Client, the results of the Program Upgrade services by the Company are considered accepted by the Client.
4. Confidentiality and Personal Information
All documents and information related to the Program Upgrade on the Website of the Client constitute trade secrets and proprietary information belonging to the Company. The Client pledges not to disclose Confidential Information, protect from and prevent unauthorized disclosure of the Confidential Information, and take reasonable measures to protect Confidential Information. If the information, which is confidential according to this Agreement, becomes available to a third party without a consent of the Company, the Client agrees to indemnify the Company for all suffered damages.
The Company guarantees that the personal information and other personal data provided by the Client for the purpose of executing section 1 of the Agreement will be used by the Company solely for the purposes of executing this Agreement. Such information is not subjected to transfer to any third parties except for the cases as stipulated by the current legislation of the Russian Federation. By concluding this Agreement, the Client grants the Company the right to process (including, but not limited to: gather, systematize, store, revise, update, change, use, transfer within the Russian Federation and abroad) their personal information and other personal data in any way not contradicting the current legislation of the Russian Federation (which includes not using any automation facilities) for the purpose of performing obligations of the Agreement imposed on the Parties.
5. Warranties and Limitations
The Company guarantees that the Program Upgrade services will be rendered according to the Specification approved by the Client.
In the event that the Client finds any errors and/or contradictions with the Specification within the period of three (3) months from the moment the Client has accepted the results of the Program Upgrade services rendered by the Company, the Company shall remove these errors and/or contradictions at its own expense. Upon expiration of the three-month period since the Client has accepted the results of the Program Upgrade services, the removal of errors and/or contradictions with the Specification shall be performed at extra charge.
The foregoing guarantees of the Company are given in lieu of all other guarantees, whether express or implied.
The Company is not liable to the Client for any damages and/or loss (including interruption of business, loss of information, loss of profits, business reputation and other property damage) related to the Program Upgrade on the Website of the Client.
The Company shall not be liable for any unauthorized access to the Website of the Client by any third party if such act caused destruction or modification of the Program, the results of the Program Upgrade services.
The Company shall not be liable for any complete or partial failure to perform any of its obligations hereunder if this failure is due to force majeure, such as flood, fire, earthquake and other natural disasters, war or acts of war, acts of governmental authority, that occurred after the Agreement was concluded and that is beyond the control of the Company.
The Agreement may be changed by the Company unilaterally. The text of the changes made to the Agreement is published on the Official Website of the Company. The changes in conditions of the Agreement shall come into force on the date of publishing the notice on the Official Website of the Company unless otherwise stated in the appropriate posting. All changes and additions to this Agreement are mandatory for acceptance and satisfaction by the Client at his further usage of services for upgrading the Program.
8. Final Provisions
This Agreement complies with the effective law of the Russian Federation and international agreements.
If any condition of this Agreement for any reason becomes unenforceable, or is voided or declared invalid, then it is withdrawn from the text of this Agreement, which, however, shall by no means affect the legitimacy and validity of the other conditions.
The section headings in the text of the Agreement are for convenience only and have no independent legal force, and shall not be interpreted in relation to the terms and conditions of the Agreement.
The Client acknowledges that he has read this Agreement carefully and understood it completely, and agrees to accept its terms and conditions.
The Client acknowledges that the Company may suffer damage if the terms and conditions of this Agreement are not respected, and therefore the Client agrees that the Company has the right to use any form of protecting the violated rights and legitimate interests, including the direct appeal to the appropriate court without a necessity to comply with the claim settlement procedure.
Any dispute arising out or in connection with this agreement, including any question regarding its interpretation, validity or termination, shall be referred to and finally resolved by the Ulyanovsk Regional Court of Arbitration (Ulyanovsk, Russian Federation), or the appropriate court of common law on the territory of the Russian Federation (the competent court) at the location of the Company. In case a Client is a legal entity or individual entrepreneur registered outside the Russian Federation, any dispute arising out or in connection with this Agreement, including any question regarding its interpretation, execution, termination or validity shall be finally settled by arbitration under the Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (hereinafter referred to as the "Rules", http://www.tpprf-mkac.ru/en/2010-06-13-13-33-51/regleng), which Rules are deemed to be incorporated by reference into this section. The arbitration panel shall consist of one (1) arbitrator selected in accordance with the Rules. The language to be used in the arbitral proceeding shall be Russian. The governing law of the Agreement shall be the substantive law of Russian Federation. The arbitration shall be held in Moscow, Russian Federation. The injunctive relief for the subject of dispute may be only suspension of recovery on the basis of the enforced document questioned by the plaintiff or any other document under which penalties are recovered on non-acceptable basis. The plaintiff shall bear its own and the other Party’s costs associated with the resolution or arbitration of any dispute, and all fees and other costs of the arbitration proceeding shall be paid by the plaintiff. The award rendered by the arbitration shall be final and binding upon both Parties and judgment upon the award may be entered in any court having jurisdiction thereof.
The Parties acknowledge the legal validity of the documents sent by email. The documents sent by the Company are considered created in the proper written form if they are sent from email@example.com. The documents sent by the Client are considered created in the proper written form if they are sent from the email address given by the Client to the Company according to section 1 of the Agreement. An email message is considered sent to the proper email address if it is sent to the email addresses mentioned above.