LICENSE AGREEMENT (Public Offer)

non-exclusive license

edition of 01 July 2022

This License Agreement (hereinafter referred to as the “License Agreement”, “Agreement”) is a public offer of the Company, and addressed to any individual or legal entity (hereinafter referred to as the “Licensee”), who is interested in obtaining the right of using the Software according to the terms set forth below.

The Public Offer of the Company and this Agreement is considered accepted by the Licensee when a full amount of payment is done according to the terms of this Agreement. By this way the Licensee also accepts all terms and conditions of this Agreement, the Terms of Service Provision and Privacy Policy and agrees to comply with them.

Before acquiring the right to use a copy of the Software/Extensions, the Licensee is obliged to read the terms of this License Agreement, as well as the Terms of Service Provision and Privacy Policy carefully. Obtainment of the right to use and usage of the Software/Extensions by the Licensee is allowed only in case of full and unconditional consent by the Licensee of all the terms of this License Agreement, the Terms of Service Provision located at: https://tamaranga.com/service-en.html and Privacy Policy located at: https://tamaranga.com/privacy-en.html and the Schedule № 1 which are an integral part of this Agreement.

DEFINITIONS:

  • Сompany means Tamaranga Limited, the company registered under the jurisdiction of New Zealand, which has the right to use and/or license the Software to third parties.

  • Software means a software package designed to provide and organize the process of creating, editing, and managing the content of a website (CMS). The Software licensed under this License Agreement includes the following software of the Company: “Tamaranga Marketplace Platform”, “Tamaranga Classified Platform”, “Tamaranga Freelance Platform”, “Tamaranga Realty”, “Tamaranga FL”, “Tamaranga DO” as well as any other software, that the Company has the right to use and/or license to third parties. The Software was developed with the use of programming languages and technologies according to the description of certain software. The list of modules, parts, functions, and technical possibilities of the software depends on Software’s name, license to which it is bought, and their versions and modifications, and is available on the official Website of the Company.

  • Extension means module, plug-in, theme, add-on and other application to the Software, which is an independently compiled program element that can be dynamically connected to the Software, and is intended to enhance the use of the Software and belongs to the Company on the basis of ownership or other legal bases.

  • Service means a service package that is bought by the Client through the Website to maintain/update the Software/Extension. The list of current services is stated on the website by link https://tamaranga.com/service-en.html.

  • Client means the Licensee that has paid for the provision of the Service in accordance with the terms of the Agreement.

  • Website means Company’s website, which can be found at https://tamaranga.com.

  • Software License/Extension License (or License) means the right of the Licensee to use the Software/Extension provided by the Company in accordance with this License Agreement.

  • Public Offer is this License Agreement, which is a public offer of the Company, and may be concluded by the Licensee through accepting the terms of this License Agreement as a whole. The terms of this Agreement are the same for all Licensees and can not be changed by the Licensee.

  • Acceptance means the provision by the Licensee of full and unconditional consent to the terms of this License Agreement.

  • Personal Cabinet means a virtual personal cabinet of the Licensee located on the Company’s servers, which is accessed by authorization (entering the email and password of the Licensee, known only to the Licensee).

  • Software/Extension update(s) means patches and/or improvements to the Software/Extension provided by the Company in the form of an installation package in case of full payment for the Service or on a free-of-charge basis in the form of an archive of the latest version of the Software License/Extension License purchased by the Licensee.

1. THE SUBJECT MATTER

1.1. The Company shall grant the Licensee the right to use the Software/Extensions of the Company and Service in the terms and conditions provided for in this License Agreement, and the Licensee shall pay remuneration to the Company according to the terms of this Agreement.

1.2. All actions performed through the Personal Cabinet shall be deemed performed by the Licensee. The Licensee is responsible for the safety of the authorization data of the Personal Cabinet, for providing this data to third parties, and for the consequences of providing the authorization data to third parties.

2. LICENSE TERMS

2.1. The Software License/Extension License which is granted to the Licensee under this Agreement is simple (non-exclusive), perpetual, limited, transferable, without the right to grant sublicenses, with the right to revoke it by the Company in case the Licensee violates this Agreement.

The Company grants the right to use the Software/Extension only within a single domain of the Licensee, including its subdomains. Use of the Software/Extension in more than one domain may be permitted only with the written consent of the Company.

No rights are granted to the Licensee under this Agreement other than those expressly set forth herein. The Company retains all rights, title, and interest in and to the Software/Extension, including all related intellectual property rights. Any information the Licensee receives is protected by the copyright of its owner. Any expansion of the existing Licenses, as well as any expansion of the Licensee’s authority, shall take the form of a separate written authorization from the Company.

2.2. Under the terms of the License, the Company grants the Licensee the following scope of rights:

2.2.1. Reproduction on any tangible media, including, but not limited to, recording in computer memory in the quantity specified in this Agreement.

2.2.2. Use the Software/Extension in accordance with its functional purpose. At the same time the Licensee has the right to use the Software/Extension in accordance with its technical characteristics, unrestrictedly exploiting the Software/Extension capabilities in accordance with the purpose of the Software/Extension, determined by technical and other documentation of the Company, in its activities, including commercial, for profit.

2.2.3. Making changes to the source code of the Software/Extension, except for those parts of the Software/Extension whose source code is not available to the Licensee. Such changes may be made by the Licensee or its authorized third parties for any purpose other than those that directly violate this Agreement and the scope of the rights granted to the Licensee. In this case, the Licensee may use the modified Software/Extension only under the relevant License with the right to sell, rent, transfer it to third parties. In addition, if the Licensee makes such modifications, the correct operation of the Software/Extension is not guaranteed.

In order to keep the performance of the Software/Extension, the Licensee shall make functional and visual changes to the code only using available tools for Software/Extension upgrade implemented by the Company and keep full compatibility with the automated installation of packages with Software/Extensions updates.

2.2.4. Creating an unlimited number of backups for archival purposes, as well as for testing and development purposes (including locally at the developer’s site), but only on the condition that these backups are not used as working websites with user access.

2.2.5. Use and copy the Software/Extension documentation for internal reference purposes in an unlimited number of copies.

2.2.6. Making the Software/Extension publicly available, i.e. any display of a copy of the Software/Extension on the Internet to an unlimited number of people without the right to be copied by third parties and without the right to provide access to the source code of the Software/Extension to third parties.

2.3. The License applies only to the version of the Software/Extension that is lawfully purchased by the Licensee and to the Software/Extension updates purchased by or provided to the Licensee on a free-of-charge basis.

2.4. In the event that the Licensee or a third party conducts a performance test of the Software/Extension, disclosure (transfer, other than to the Company, publication by any means) of the results of such tests may be made by the Licensee/the third party only with the prior written consent of the Company.

2.5. The Licensee’s use of hardware and Software/Extension for virtualization/multiplexing (virtual machines, connection pooling, information redirection, reducing the number of devices or users that directly access or use the Software, adjusting the number of requests, etc.) is permitted but does not result in increasing the number of Licenses made available to the Licensee.

2.6. The Licensee is prohibited from doing anything directly related to the Software/Extension which is not expressly permitted by a written Company’s document or this Agreement, including, but not limited to:

2.6.1. Publish the Software/Extension by any means, if in doing so other persons are given the possibility to copy it or get acquainted with the source code of the Software/Extension.

2.6.2. Rent, lease, lend, loan, or otherwise encumber the Software/Extension.

2.6.3. Remove any copyright, trademark, or other proprietary notices from the Software/Extension.

2.7. The Licensee may transfer the License to a third party upon written notice to the Company. Upon transfer, the transferring party must ensure that the instrument of transfer binds the third party by terms and obligations no less protective for the Company than the terms of this Agreement. In order to receive the Service, the third party must enter into a separate agreement with the Company.

3. TRANSFER OF THE SOFTWARE/EXTENSIONS AND UPDATES

3.1. When granting the License, the Company agrees to deliver a copy of the Software/Extension to the Licensee within 5 calendar days of receipt of full payment from the Licensee. A copy of the Software/Extension means a copy of the Software/Extension, including the source code of the Software/Extension, and only one copy of the database structure and tables included in the Software/Extension.

3.2. A copy of the Software/Extension is transferred by providing a link or archive sent to the Licensee through the Personal Cabinet.

3.3. The Software/Extension is provided to the Licensee in its latest version.

3.4. If the Company fails to provide a copy of the Software/Extension within 5 calendar days, or if the Licensee fails to receive such copy of the Software/Extension for any reason, the Licensee shall notify the Company within the specified period.

3.5. If within 30 (thirty) calendar days, the Licensee has not notified the Company that it has not received a copy of the Software/Extension, the Company’s obligation to deliver a copy of the Software/Extension shall be deemed satisfied.

3.6. The last available version of the Software/Extension under the Licensee’s current License may be transferred to the Licensee by providing access to download the archive with the installation files of the last available version in the Personal Cabinet unless otherwise provided.

4. SERVICE DELIVERY

4.1. The Company provides the Client with the Service in accordance with this Agreement and the description of the current tariff on the Website.

4.2. The Company reserves the right to add additional services to the Service at any time. In addition, the Company may change, limit, or remove existing services for reasons of data security, technical necessity, or due to changes in applicable law, provided that the change, limitation, or removal is reasonable for the Client, taking into account the interests of both parties.

4.3. The Client gets access to the Service through the Personal Cabinet on the Website.

4.4. Within the framework of providing the Service, Software/Extension updates are transferred to the Client by providing access to the installation files of such updates through the website control panel (admin panel) on the Licensee’s server.

4.5. The Company provides the Service from the date of receipt of payment and as long as the Client pays for the Service. The Company reserves the right to deny the Client opportunity to renew the Service at its sole discretion.

5. PAYMENT PROCEDURE

5.1. The cost of the Service (including the License fee) is payable by the Licensee as specified on the Website or in the Company’s invoice, and shall be paid in full.

5.2. The cost of the Service provided under this Agreement is determined on the date of payment, depends on the version and functionality of the Software/Extension, the number of modules for the Software, and is determined on the Website. The price may be changed by mutual consent of the Parties, which is confirmed by the invoice issued to the Licensee and the subsequent payment by the Licensee of the amount specified in the invoice.

5.3. The Licensee is responsible for providing the Company with complete and accurate information for billing and contact information, and for notifying the Company of any changes in such information.

5.4. Renewal of the Service is paid on an annual basis or at other intervals as agreed by the Parties. If the Licensee terminates the renewal of the Service under the agreed schedule, in case the Licensee wishes to purchase the Service again later, the Licensee shall pay the current cost of the Service specified on the Website as in case of the first payment or the cost specified in the invoice of the Company.

5.5. The Client may additionally purchase extended services with a monthly fee (settings, administration of the Licensee’s server, content marketing services, SEO-promotion services, development of individual extensions, and others) under the terms of a separate agreement with the Company.

5.6. The Licensee is responsible for payment of all taxes associated with any payments to the Company, including provincial, municipal, federal or foreign taxes, levies, duties, or similar governmental charges of any nature, including value-added taxes, goods and services taxes, use taxes or international money transfer taxes, and others.

6. REFUND/CANCELLATION POLICY

6.1. All payments are final, and the Licensee shall not be entitled to any refund once access to the Software/Extension code has been transferred to the Licensee. The Company reserves the right to refund amounts paid at its sole discretion.

6.2. Any request to cancel an order after it has been processed must be submitted in the written form to the following email address: contact@tamaranga.com.

7. RIGHTS AND OBLIGATIONS OF THE PARTIES

7.1. The Company is obliged to:

7.1.1. Provide the Licensee with a non-exclusive right to use the Software/Extension of the Company within the term of this Agreement.

7.2. The Company has the right to:

7.2.1. Monitor the Licensee’s compliance with the copyright holder’s rights.

7.2.2. At its own discretion, engage third parties to perform the duties provided for in this Agreement.

7.2.3. Require the Licensee to provide reports on the use of the Software/Extension. The report can be requested in case the Company discovers the illegal usage of the Software/Extension on other domains or the distribution of copies of the Software/Extension through the Internet.

7.2.4. Revoke the License in case of violation of the terms of this Agreement or the License.

7.3. The Licensee is obliged to:

7.3.1. Make the payments in a timely manner, in the amount provided by the Agreement.

7.3.2. Comply with the copyrights of the owners of the Software/Extensions, as well as the intellectual property rights of third parties.

7.3.3. Comply with the operational requirements, methodical, technical and other recommendations, imposed by the Company for hardware, Software/Extensions.

7.3.4. Provide reports on the use of the Software/Extension upon the request of the Company, within a reasonable time. The report can be requested if the Company discovers the illegal usage of the Software/Extension on other domains or the distribution of copies of the Software/Extension through the Internet. The report should contain the most complete information on all third parties who have or had access to the Software/Extensions by the Licensee and the purposes for which they were given access to the Software, as well as other information requested by the Company.

7.3.5. Use the Software/Extension in accordance with the applicable laws of the country or region in which the Software/Extension is used by the Licensee.

7.3.6. Comply with all legal requirements regarding the collection, processing, and use of data transmitted and processed by the Company for the Licensee in connection with the performance of this Agreement.

7.4. The Licensee may use the Software/Extension solely for the purposes specified in this Agreement. In particular, the Licensee cannot and shall not allow third parties to use the Software/Extension:

7.4.1. for any illegal activity, including the development of any applications that violate the rights of third parties or any other applicable laws or regulations;

7.4.2. to send spam or any other unsolicited advertising;

7.4.3. to conduct control tests or other tests of the Company’s technical infrastructure capabilities;

7.4.4. to create a similar product or service;

7.4.5. to transfer to the Company any data that cannot be transferred or processed by the Company due to data protection laws, Agreementual or statutory confidentiality obligations, export restrictions or other legal provisions or third party rights.

7.5. The Licensee has the right to:

7.5.1. Require the Company to fulfill its obligations under this Agreement.

7.5.2. Subject to compliance with all terms and conditions of this Agreement, as the Client of the Service, the Licensee has the right to purchase additional services and Extensions for an additional fee.

8. TERM

8.1. This Agreement shall enter into force on the date of its initial Acceptance by the Licensee. The Agreement is concluded for an indefinite term.

8.2. This Agreement may be terminated by the Company under the circumstances set forth in the “EARLY TERMINATION” section.

8.3. Upon termination of the Agreement, the Software License/Extension License is canceled.

8.4. If this Agreement is terminated for any reason, the Licensee shall cease all use of the Software/Extension and shall destroy all copies of the Software/Extension in its possession, as well as its documentation, and provide the Company with documentary evidence of the fulfillment of these obligations.

8.5. Upon termination of this Agreement for any reason, the following sections shall survive: “WARRANTIES AND REPRESENTATIONS OF THE PARTIES”, “LIMITATION OF LIABILITY”.

9. EARLY TERMINATION

9.1. If the Licensee violates the intellectual property rights of the Company on the Software/Extension(s)(s), violates the terms of this Agreement, including, but not limited to, when using the Software/Extensions on a domain, the use on which is not provided by the terms of this Agreement, or using Extensions that have not been lawfully acquired, the Company has the right to unilaterally by notice and at its sole discretion to:

9.1.1. terminate this Agreement,

9.1.2. stop providing the Service or providing updates to the Software/Extension without any compensation and without refund, and

9.1.3. apply to the Licensee both civil and other liability measures that are stipulated by applicable law.

In this case, the License to use the Software/Extension is considered revoked and the Licensee is obliged to return all copies of the Software/Extension to the Company without the right to compensation for any part of the paid payments, and to destroy the backup, archival copies and provide the Company with the documentary confirmation of the fulfillment of these obligations.

9.2. For the purposes of paragraph 9.1, a violation of the Company’s rights includes the use of the Software/Extension without prepayment of the payments provided for in this Agreement.

9.3. Any actions of the Licensee that do not directly violate the copyrights protected by law or the terms of this Agreement, but may potentially lead to an infringement, namely: search for the source code of the Software/Extension, modification, decompilation (including reverse engineering) of the Software/Extension, which aims at using the Software/Extension in ways not provided for in this Agreement, unauthorized copying of the Software/Extension code, and any discussions with third parties on ways to bypass the protection or obtain (connect) the Company’s Software/Extension without obtaining the License, as well as searching for such ways, including by using public search tools (services) such as Google, Yandex, Bing, Yahoo, etc.

9.4. The Licensee shall be deemed to have been notified that the Software/Extension contains software protection against illegal use of the Software/Extension or hacking the Software/Extension, which notifies the Company of such violations and gives it the ability to remotely block the Software/Extension.

10. WARRANTIES AND REPRESENTATIONS OF THE PARTIES

10.1 The Company represents and warrants that:

10.1.1. The Software does not infringe any patents, copyrights, or trademarks, or violate the trade secrets or other proprietary rights of any third party;

10.1.2. the Company has the legal right and authority to enter into and perform this Agreement.

10.2. The Licensee represents and warrants that:

10.2.1. It has the legal right and authority to enter into and perform this Agreement.

10.3. The Company does not guarantee that the functions performed by the Software will meet the Licensee’s requirements. Any Software/Extension and/or Service is provided “as is” in accordance with internationally accepted practice, except as provided in this Agreement.

10.4. The Company does not guarantee the compatibility of the Software/Extension with other software not provided by the technical characteristics of the Software/Extension and installed in the Licensee’s hardware complex, and does not guarantee quality interaction/parallel operation with such software.

10.5. The Software/Extension is not intended and shall not be used in information systems operating in hazardous environments or servicing life support systems where a failure in operation may endanger human life. The Company does not guarantee that there will be no failures, errors, inconsistencies when using the Software/Extension, but is ready to correct them within the framework of providing the Service.

10.6. Except as provided in this Agreement, there are no other warranties or conditions of any kind, including, but not limited to, warranties against defects, warranties of merchantability, or fitness of the service for a particular purpose. This disclaimer of warranties is an integral part of this Agreement.

10.7. Use of the Software or the Service under this Agreement is permitted only if you agree to the disclaimer of warranties pursuant to Section 10.6.

11. LIMITATION OF LIABILITY

11.1. To the extent permitted by applicable law, in no event shall the Company, its representatives or affiliates be liable for any indirect, intentional, unintentional or consequential damages arising from the use, misuse or inability to use the Software or Service, including, without limitation, damages for loss of goodwill, any computer failure or malfunction, damage to the Licensee’s data or systems, costs of services replacement, lost profits, due to service interruptions or for any other commercial or economic losses or damages, even if advised of the possibility thereof, and regardless of the legal theory or case law (Agreement, tort (including negligence) or otherwise) on which the claim is based.

11.2. The aggregate liability of the Company to the Licensee or any other party for damages for any reason will be limited to the amount not to exceed the amount paid by the Licensee under this Agreement for the six (6) months preceding the first claim.

11.3. Liability in Special Cases. The Company shall never be held liable for:

11.3.1. any problem, failure, loss of information, malfunction, or error resulting from the use of the Software or the Service in a manner inconsistent with the instructions, procedures, or other specifications provided by the Company, or from a breach by the Licensee of any of its obligations under the Agreement, or from the wrongful acts of third parties;

11.3.2. any consequences resulting from the use or non-use of, or inability to use, the Software/Extension or the Service and any information materials that are available through the Software/Extension, as well as resulting from misunderstanding or lack of understanding the terms of this Agreement, instructions or directions on how to use the Software/Extension or the Service and other technical issues. If the Licensee does not fully understand the terms of this Agreement, it has the right, before acquiring the right to use the Software/Extension, to contact the Company for the necessary clarifications. By purchasing the right to use the Software/Extension, the Licensee confirms that it understands all the provisions of this Agreement and that the Licensee has received from the Company all the explanations necessary for the Licensee;

11.3.3. problems arising from the use of the Software or Service in conjunction with software or hardware incompatible with it;

11.3.4. intrusion by a third party into the computer system, including the introduction of malicious programs (computer virus), affecting the correct operation of the Company’s Website, Software/Extension and/or Service;

11.3.5. change of hosting provider or changes in the system of the hosting provider;

11.3.6. a network failure that makes the Company’s Website inaccessible;

11.3.7. any loss or damage that may result from the Company’s rejection of any order of the Licensee;

11.3.8. failure to provide all or part of the Service due to technical problems, lack of Internet connection, system errors, failure to provide data to the Company by a third party on terms that the Company, at its sole discretion, considers commercially reasonable.

11.4. The Licensee agrees to indemnify the Company against all third-party claims, including the necessary costs of legal defense, brought against the Company in connection with the Licensee’s breach of this Agreement. If third parties bring such claims against the Company, the Company will inform the Licensee of the claims without undue delay and will leave the defense to the Licensee’s discretion or undertake it in cooperation with the Licensee. The Company shall not settle or recognize any third-party claims without the Licensee’s consent, which shall not be unreasonably withheld or delayed. The Company has the right to request a reasonable advance to cover anticipated legal defense costs. Reimbursement accordingly extends to fines or other regulatory or court orders and claims.

12. FORCE MAJEURE

12.1. The parties hereto shall be released from liability for non-fulfillment or improper performance of obligations under the Agreement, except for the liability for infringement of intellectual property rights, in case of force majeure, that is, extraordinary circumstances that are unavoidable under the given circumstances, which are understood as: prohibitive actions of authorities, civil unrest, epidemics, blockades, embargoes, earthquakes, floods, fires or other natural disasters.

12.2. In case of occurrence of these circumstances, the Party hereto is obliged to notify the other Party within 5 (five) calendar days.

12.3. The document issued by the authorized state body is sufficient evidence of the existence and duration of the force majeure circumstances.

12.4. If the force majeure circumstances continue to exist for more than 3 (three) months, then each Party hereto shall be entitled to terminate the Agreement unilaterally.

13. FINAL PROVISIONS

13.1. This Agreement with any appendices hereto constitutes the entire agreement between the Company and the Licensee and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral, concerning the subject matter hereof. The titles and headings of the sections of this Agreement are for convenience only and shall not affect the interpretation of any provision hereof.

13.2. Neither party may assign any rights or obligations under this Agreement, whether by law or otherwise, without the prior written consent of the other party (in which waiver shall not be unreasonable); however, the Company may assign rights or obligations under this Agreement in full without the Licensee’s consent in connection with a merger, acquisition or corporate reorganization. This Agreement shall be binding upon and inure to the benefit of the parties, their heirs, and assigns.

13.3. The Company may modify this Agreement at its sole discretion to reflect changes in market conditions affecting the business, changes in payment methods, changes in applicable laws and regulations, and changes in the Company’s system. The Company may notify the Licensee by email to an email address, but the Company is under no obligation to do so, and such change will take effect upon publication of the revised Agreement on the Website. The Licensee agrees to be bound by any changes to this Agreement when continuing to use the Company’s Service or Software after the publication of any such changes on the Website.

13.4. In the event that one or more provisions of the Agreement are invalid, unenforceable for any reason, it shall not affect the validity or enforceability of any other provision of the Agreement, which shall remain in effect.

13.5. In the event of differing interpretations of the terms of this Agreement, the English version shall prevail over translations into other languages.

13.6. With respect to matters not covered by the provisions of this Agreement, the Company and the Licensee shall act in accordance with the laws of New Zealand, applicable international law, and established business practices.

13.7. If a dispute arises, the parties shall settle it through amicable negotiations within 60 (sixty) calendar days.

13.8. A claim for breach of obligations shall be sent in written form with the documents attached to support the claim. It must be sent to the Company’s email address contact@tamaranga.com.

13.9. If such dispute(s) is not resolved by negotiations, any dispute(s) arising out of or in connection with the Agreement will be referred to and finally resolved by New Zealand’s courts.