This License Agreement (hereinafter, the Agreement) regulates the relations between the Right Holder, who is the owner of the Messenger (hereinafter, the Licensor), and you, who is the User (physical entity) - the Licensee (hereinafter, the Licensee) with regard to using of Messengers that have commercial name of Barracuda Messenger (hereinafter, the Messenger).
This License Agreement (hereinafter, the Agreement) may not be viewed as a waiver of the Right Holder of his rights to intellectual property in any jurisdiction whatsoever.
- Terms and definitions.
1.1 Messenger is a mobile application, which is a combination of pages with the same topic, design and available to the User via a stationary computer or via smart phones as well as via other devices, is the result of intellectual activity in the form of a complex of technical means, software, which use electronic components as functional units (electronic services, etc.), and/or their elements. Messenger is designed for exchange of messages in real time via the Internet and may transmit text messages, sound signals, images, video as well as perform other available actions (organization of groups text chats, video conferences, collective drawing, collective games, etc.)
1.2 Licensor, which is a legal entity, which is specified in article 10.8 herein, is a Party to this Agreement and grants to the Licensee the right to use the Messenger on the terms of a non-exclusive license, and performs maintenance and administration of the Messenger.
1.3 Licensee, which is a physical entity, possesses the right and ability to act for conclusion of this Agreement, is the User of the Messenger, who, in accordance with this Agreement, is granted the right to use the Messenger on the terms and conditions of this Agreement. The Licensee is a Party to this Agreement.
1.4 Content is major constituent parts of graphical images, design, illustrations, scripts, programs, applications, games, in a complex of technical means, software as well as text, video, music, sounds, status and other forms. The components of the Content may be the product of intellectual activity, the rights to which are held by the Licensor, the User (Licensee), partners and/or other physical or legal entities.
1.5 Applications are complexes of technical means and softwares additionally provided to the major functions of the Messenger by the Licensor or, with his consent, by third parties, which use electronic components as functional units (electronic services, etc.) and/or their elements can be used by the Licensee. The Licensee participates in the Applications on the terms, which are stipulated by separate agreements with third parties.
1.6 Account - Account of the Licensee, registration account that was created at the time of registration or created earlier in the Messenger and reserved by the user, which allows identifying each Licensee (User) via phone numbers and/or via unique nickname (nickname).
1.7 Messages are personal electronic messages (where the user is the author) and messages of third parties, which are transmitted by one Licensee (User) to another and/or other Licensees (Users) and are not accessible and/or accessible for review by other persons. Receiving and sending of messages is done through the use of the Licensee’s Account.
1.8 License Agreement is an agreement, which is entered into between the Licensor and the Licensee; it contains all necessary terms and conditions of a license agreement on granting of the rights to use the Messenger and contains other rules of use.
1.9. Personal data – data, information on the basis of which it is possible to establish the identity of a person or the data that is related to the person whose identity is unquestionably known. Data can’t be considered as personal if, without using of additional information, they don’t allow to identify the individual. Phone number of the user can’t be considered as a personal data, because it can’t identify the citizen.
1.10. The phone number of the User - The number of the cellular (mobile) phone, the feedback form. The phone number is required to send the access code when registering with the Messenger. Registration in the Messenger by phone number does not involve the collection of additional information identifying the user, which means that this information does not apply to personal data, because it does not identify the citizen.
- Terms of Joining this Agreement
- 1 You (the Licensee) must not use our Messenger, if you are under 16 years of age, and if you are a minor child, your parent (-s) or guardian must agree with the terms and conditions of this Agreement (on your behalf and his/her behalf) before you can use the Messenger.
2.2 In case the Licensee uses the Messenger on behalf of a company, partnership, community, cooperative outlet, association, government or other organization, the Licensee shall guarantee that he has a relevant right to do so, and that he has a right to bind his company with the terms and conditions of this Agreement.
2.3 The Licensee shall be obliged, prior to using the Messenger, to review this Agreement as well as all its terms and conditions and other applicable rules, which are located in relevant sections.
- 4 Upon reviewing of this Agreement, the Licensee shall make registration (authorization or similar in the meaning) by way of entering the phone number and create an Account or enters via an earlier created Account in the Messenger and accepts this Agreement by virtue of pressing the Register button, or Agree button, or similar by the meaning which, in accordance with Article 395 of the Civil Code of the Republic of Kazakhstan, is acceptance of the formal offer of the Licensor. Conclusion of the Agreement obliges the Licensee to comply with its terms and conditions, including the terms and conditions and the rules, which are applicable in sections of the Messenger. The Messenger may not be used without registration.
- 5 By each entry to the Messenger (each use), the Licensee confirms the consent with the terms and conditions of this Agreement in the version, which was effective at the moment of the actual beginning of using the Messenger, and agrees that at registration the Licensor begins to have access to phone number information.
- Subject of Agreement
- 1 The Licensor, acting under this Agreement, grants to the Licensee, on the terms of a simple non-exclusive license, the right to use the Messenger within the limits as determined by this Agreement.
- 2 All technical and organizational operations and maintenance of the Messenger are performed by the Licensor himself and constitute his obligation, which provides for an opportunity to grant the rights to the Licensee. The Licensor is the holder of the necessary amount of rights of the Messenger, as a program in the form of a complex of technical means, softwares, which use electronic components as functional units, and to all its constituent parts, which are taken both separately and collectively, as well as audio and video elements being called, except for rights to the elements, which can be owned by third parties.
3.3 The Licensor shall have the right to use, operate and distribute the Messenger on relevant territories, where he ensures its use, operation and distribution.
- Constraints for Using the Messenger
4.1 The Licensee is prohibited to distribute, modify, partially or fully, convert, for any purposes, elements of the Messenger, which are the object of copyright of the Licensor Other Licensees or other third parties, if there is no permit from the relevant right holders.
- 2 The Licensee is prohibited to reproduce elements of the design or user interface of the Messenger when creating sites or doing any other activities.
4.3 The Licensee is prohibited to assign the granted rights to use the Messenger to other Licensees or other third parties via concluding sub-license contracts/agreements or by any other way, as well as to breach the terms and conditions of this Agreement.
- Rights and Obligations of Licensee
5.1 The Licensee shall have the right to use the Messenger on the terms of a simple non-exclusive license, provided he complies with the terms and conditions stipulated by this Agreement and other effective laws, and use all functional capabilities of the Messenger only for legitimate purposes.
- 2 The Licensee shall be obliged to not copy, disseminate, publish or distribute in any other way materials (text, graphical, audio, and video), which are placed in the Messenger by the Licensor, without a written consent of the Licensor, and to not violate the rights of intellectual property of the Licensor with regard to the Messenger.
5 .3 The Licensee shall be obliged to not extract information from the Messenger, do reverse engineering, modification of the software. In case of potential use of a computer device and/or smart phone of the Licensee by third parties, he shall, on his own, take measures to prevent unauthorized access to using the Messenger.
5.4 The Licensee shall be obliged to not block, disconnect or influence in any other way any functions, which are a constituent part of the Messenger.
5.5 In case in the Messenger actions are committed in relation to the Licensee that may be construed as offensive, humiliating, discrediting, etc., [the Licensee shall be obliged] to notify the Licensor.
5.6 The Licensee guarantees that he possesses all necessary powers and ability to act for conclusion of this Agreement.
- The Licensee shall be prohibited to:
6.1. Enter user information of another person with the intention to identify himself as that person.
6.2 Participate in propaganda and advocacy, which evokes social, racial, inter-ethnic and / or religious discord, hatred, enmity, propaganda of war, social, racial or lingual superiority, disseminate other information, which is prohibited for dissemination by the effective legislation and this Agreement.
6.3 Transmit, by virtue of Personal messages, information of limited access of third parties, disseminate, place, publish, communicate to general publics, transmit or, in any other way, use, fully or partially, the Content of the Licensor, Licensees and third parties, which are the object of copyright and other exclusive rights, without their preliminary consent, other than case, which are stipulated by this Agreement and the effective legislation of the Republic of Kazakhstan.
6.4 Place and transmit via personal messages, text messages, graphical images and other materials, in the Messenger in open access, the content of which is offensive for other Licensees and third parties, as well as those that can damage the honor, dignity and business reputation of a physical entity or business reputation of a company.
6.5 Send messages containing swear words and expressions, disseminate, transmit pornographic materials with participate of under age persons as well as place information that promulgates, induces to, or contains description of methods of suicide or encourages suicide.
6.6 Send messages that contain advertisements, in graphical and/or textual form, and other information on narcotic and psychotropic substances, including information on distribution of narcotics, recipes of their manufacture and advice on consumption, as well as place extremist information, information that violates rights of underage persons, or other illegitimate information.
6.7 Seek to obtain unauthorized access to managing the Messenger or their classified sections, perform actions, which are aimed at malfunctions of operations and functioning of the Messenger, or perform any other similar actions.
6.8 Use means of automated collection of information (scripts, crawlers, programs, bots, etc.) for collection of information and/or interaction with the Messenger without consent of the Licensor.
6.9 Create such a name of the Account that may violate the rights of intellectual property of third parties, as well as send, in any form, unnecessary and unauthorized spam or any other commercial messages.
- Rights and obligations of the Licensor
7.1 The Licensor determines the structure of the Messenger, appearance, authorizes and limits the access of Licensees to the Messenger, and, in case of breach of the terms and conditions of this Agreement, exercises other rights that he holds. The Licensee agrees that the Licensor shall have the right to use functional and technical capabilities of software means that ensure display of the Content, at his discretion.
7.2 The Licensor shall provide technological opportunity of interaction between Licensees with the use of the Messenger, including transmission, storage and provision of access to information, graphical images, audio, video and other materials, without modification of such materials or influence upon their content on the part of the Licensor. The Licensor resolves, on his own, issues on the procedure of placing in the Messenger of advertisements and participation in various programs, etc.
7.3 The Licensor shall have the right to, at any time, modify the design, user interface of the Messenger, update, add, restrict and/or modify its content, the make-up of functions, modify and/or add the scripts being used, software, the Content of the Licensor, and other objects, which are used or stored in the Messenger, as well as any Applications with a mandatory condition to notify the Licensee.
7.4 The Licensor shall have the right to remove the Content, block, without notification, access to the Messenger of a Licensee or a group of Licensees, including, inter alia, any version of software, which is installed on a smart phone and / or computer or other mobile device of the Licensee, at any time and for an uncertain time, possibly forever, without any notifications, with a reason or with no reason, that violate and/or may violate the legislation of the Republic of Kazakhstan, provisions of this Agreement, rights of other Licensees and third parties, cause them damage and create threat of damaging and/or to safety.
7.5 The Licensor shall have the right, at his own discretion and with no explanation of reasons, remove any information (messages, notes, records of the Licensee, comments to them and other information), as well as other materials, including those placed by the Licensee in the Messenger that violate the legislation of the Republic of Kazakhstan and/or terms and conditions of this Agreement.
7.6 The Licensor shall have the right, at any time, at his discretion, provide updates or a package of updates of software of the Messenger or its part. The update package is a set of updates, corrections and/or improvements of the software or its part, which are provided in the form of a single installer. The Licensee agrees that he, on his own and fully, shall bear the risks for all, with no exclusion, impacts, which the updates may produce or produce in the future on the functional ability and use of the Messenger.
7.7 The Licensor shall have the right to make comments to Licensees, warn, notify, and inform them on failure by the Licensee to comply with this Agreement or the effective legislation. Instructions of the Licensor, which are given to the Licensee during and beyond the process of using of the Messenger, are mandatory
7.8 The Licensor shall have the right to distribute to Licensees and/or from partners of the Licensor, provided the latter has a consent from the Licensee, advertising and informational and news messages by virtue of the functional capabilities of the Messenger, electronic mail, any forms of messages or other adequate method to that extent.
7.9 The Licensor shall have the right to identify and save information on the address of the Internet protocol IP for the purposes of collecting statistical data and identification of the Licensee as well as to use files of technical information cookies, files of journals, web beacons, scripts, tags and other tracking technologies, which are placed on a personal computer and/or mobile device of the Licensee. The tracking technology includes:
Address of the Internet Protocol (IP) - information about the type of browser, Internet provider (ISP), pages of transition, exit, information on the date, time, operating system and information on visits.
Cookie is a small fragment of data; a file, which was sent by a web-server and stored on the computer of the user containing a line of symbols, which is placed on a mobile device, computer, or other device of the Licensee;
Web beacons are electronic files of images or other technologies, which may be built into web sites or electronic letters, messages, and can be used for registration of information on the number of visitors, time of visit, review of the mail or a web site, access to certain cookies;
ETag is a part of an HTTP protocol World Wide Web, forwarding of which is done between a web browser and a web server; they can be used instead of cookie files;
7.10 Disputes and conflicts arising between Licensees and third parties shall be resolved by Licensees and third parties themselves, without involvement of the Licensor; the Licensor, however, can suspend, restrict or terminate access of the Licensee to the Messenger in case of receipt of motivated complaints about unlawful actions of the Licensee.
7.11 The Licensor undertakes an obligation to grant to the Licensee the right to use the Messenger and potential active, inactive data and commands.
- Guarantees and Limitation of Liability
8.1 The Licensee gives a guarantee that information, Content, other law-protected results of intellectual activity as well as other materials, which are stored, placed or transmitted by him in the Messenger, do not violate the rights and lawful interests of third parties. In case there are claims from third parties in connection with the breach of the terms and conditions of this Agreement, the Licensor shall have the right to transfer, within the limits permitted by the law, information of the Licensee, which is available to him, to persons, who brought the claims, in order to settle the differences.
8.2 The Licensor does not and does not have a technical ability to perform prior moderation of information and the Content, which is placed by the Licensee, and does not bear responsibility for its content. In addition, the Licensor does not bear responsibility for potential hacking, access of third parties to the Messenger of the Licensee.
8.3 For potential malfunctions and breaks in the work of the Messenger, potential loss of information induced by them, the Licensor does not bear responsibility, nor does he bear responsibility for any damage to the computer, mobile devices, any other equipments and software of the Licensee, including lost profit or damage, which were caused in connection with using the Messenger.
8.4 When the Licensee uses game Applications, the Licensor does not bear responsibility for the loss by the Licensee in the course of the game process of the game values, which have been received as a result of participation in such game Applications.
8.5 The Licensor does not bear responsibility for the absence with the Licensee of access to the Internet, for quality of services of providers of communication of the Internet networks, with which the Licensee concluded agreements for provision of services of access to the Internet network.
8.6 The Licensor is not obliged to provide to the Licensee any evidence, documents, etc., which would testify that the Licensee has breached the terms and conditions of the Agreement, which resulted into the Licensee being rejected in granting of the rights to use the Messenger or its certain functions, sections.
8.7 The Licensor does not bear responsibility for potential harm to health of the Licensee, which can be caused to the Licensee in connection with using the Messenger or Applications of third parties. The Licensee hereby has been notified that the Messenger and/or Applications may envisage various sound and/or video effects, which, under certain circumstances, can cause with persons, who are prone to epileptic or other nervous disorders, recrudescence of such conditions, and the Licensee guarantees that he does not suffer such disorders. The Licensee has been notified that regular lengthy (uninterrupted) presence by the computer, mobile devices and other devices may cause various complications of physical condition and health.
8.8 The Messenger, its functions, including all scripts, widgets, applications, content, design are supplied in the form as they are. The Licensor does not guarantee that the Messenger can be fit for specific purposes of the use. The Licensor does not guarantee, nor does he promise any specific (distinctive) results from the use and/or functional capabilities of the Messenger.
8.9 The Licensor and his representatives does NOT bear responsibility under any conditions and circumstances before the Licensee (User) and any other third parties for side, involuntary, accidental damage, including lost commercial profit or lost data, their part, harm to honor, dignity, business reputation caused in connection with using the Messenger, content of the Messenger or other materials, information, to which Users or other third parties have gained access with help of the Messenger, even if the Licensor warned (in any form) of the possibility of such harm.
8.10 The Licensor does not guarantee that all updates (versions) of the software will be provided with the same or better quality of functions and availability, nor does he guarantee that any program or information will be free of viruses.
8.11 THE LICENSOR INTENTIONALLY DOES NOT PROVIDE ANY GUARANTEES AND WAIVES ALL GUARANTEES, EXCEPT FOR CASES WHEN SUCH GUARANTEES CANNOT BE EXCLUDED UNDER THE LAW. THE LICENSOR DOES NOT GUARANTEE AVAILABILITY AND/OR RELIABILITY OF THE MESSENGER AND ITS SOFTWARE, EXCLUSIVE OF CASES WHEN SUCH GUARANTEES CANNOT BE EXCLUDED UNDER THE LAW. ALL RISKS, WITHOUT EXCLUSION, WHICH ARE RELATED TO OPERATION OF THE SOFTWARE, WILL BE BORNE BY THE LICENSEE.
- Term of Agreement Area of Validity
9.1 In the whole territory of the Russian Federation and the Republic of Kazakhstan as well as other territories where the Messenger is available, the Licensee shall have the right to use the Messenger in ways described in this Agreement with use of standard computer means, program, mobile and other devices.
9.2 This Agreement is effective as of the moment of acceptance of its terms and conditions by the Licensee (moment of activation, registration) and will remain effective for the entire period of operation of the services of the Messenger. The Agreement ceases to be effective if:
- Access to using of the Messenger in relation to the Licensee is terminated;
- The Licensee stopped using the Messenger and removed it from computer means, program, mobile and other devices.
9.3 The Licensor shall have the right, without notification, at any time, without explanation of reasons, terminate this Agreement unilaterally and extrajudicially. The Licensor shall have the right, without notification, without explanation of reasons and at any time, terminate access to using of the Messenger without reimbursement of any costs, damages, including in case of liquidation of the Messenger as well as in any other cases specified by the Licensor in the Rules, Agreements, and other documents and notifications, unless otherwise expressly stipulated by the effective legislation;
9.4 At any time, without notifying the Licensee and without explanation of reasons, the Licensor shall have the right to suspend access to and opportunity to use the Messenger as well as remove it without reimbursement of any costs, damages.
9.5 The Licensee fully realizes, acknowledges and agrees that all exclusive rights or necessary licenses for the software, which is an element of the Messenger and/or is used for its administration and functioning, including audio, video images, graphical images (photography, animation, video images, video clips, sound records, sound effects, music, text records, notes), which are part thereof, and Applications, exclusive of the Content, which is uploaded into the Messenger by the Licensee or third parties, are owned by the Licensor.
9.6 Assignment, re-assignment of any exclusive rights and issuance of an exclusive license for any components of the Messenger from the Licensor to the Licensee are not stipulated by this Agreement.
9.7 If the Licensee, in accordance with the laws of its state, is prohibited to use the Internet services, mobile applications, social networks, or there are any other legal restrictions, including restrictions in terms of age for access to such software, the Licensee shall not have the right to use the Messenger, and in case of using, the Licensee, on his own, shall be liable on the territory of the country, where he is located.
- Final Provisions
10.1 In conclusion of this Agreement, norms of the Civil Code of the Republic of Kazakhstan that regulate the procedure and the terms and conditions of concluding the agreement by virtue of accepting the public formal offer shall be applied.
10.2 The Licensor shall have the right to make changes and additions to this Agreement without any prior notification. The Licensee undertakes to check the Agreement as related modifications and additions. If the Licensee has not reviewed the Agreement and/or the modified version of the Agreement, such action or omission cannot serve as a reason for not performing by the Licensee of his obligations and noncompliance with restrictions, in the terms and conditions of this Agreement. Using by the Licensee of the Messenger after modifying the terms and conditions of this Agreement or the rules shall mean that the Licensee agrees with the modified and/or amended terms and conditions.
10.3 In case of acknowledging of one or several provisions of the Agreement as invalid, the Parties undertake to perform the obligations undertaken under the Agreement as maximum close as possible in the meaning to the terms and conditions of the Agreement, which existed at the moment of conclusion hereof. The Agreement and relations of the Parties in connection with performance of this Agreement and using the Messenger shall be regulated by the effective legislation.
10.4 Disputes of the parties under this Agreement shall be resolved extrajudicially by virtue of negotiations. In case it is impossible to reach agreement between the parties by virtue of negotiations within 90 (ninety) calendar days from the moment of receipt of a written claim, the dispute shall be referred to court of common jurisdiction at the place of location of the Licensor.
10.5 In case of occurrence of problems related to the use of various applications, inquiries, claims and suggestions should be sent directly to developers of such Applications.
10.6 This Agreement is available at the address of location of the Messenger in the Internet network, in the relevant section.
10.7 The Agreement is made in Russian, German, and English. In case of discrepancies in the texts of the Agreement in Russian, German, and English, the Russian text of the Agreement will prevail.
10.8 In relation to issues pertaining to performance of this Agreement, please contact the legal entity, which was incorporated and is acting in accordance with the legislation of the Republic of Kazakhstan (the Licensor), at:
- Office in the Bulgarian Republic: Nessebar Community, Sveti Vlas, ul. Vit No. 1, Villa Florence complex, office 1, zip code 8256.
- Office in Kazakhstan: 050026, Almaty, Almalinsky district, ul. Bayzakova d. 221, np. (office) 51g.
E - mail : email@example.com