First of all, because the contract provided for an alternative
Posted: Wed Jan 22, 2025 4:44 am
Without updates it won't work
The court, the said decision states, found the defendant's arguments that its obligation to grant the right to use the software to be limited to the moment of transfer of the hyperlink to be untenable, and did not imply subsequent provision of accessibility to this hyperlink. According to the court, these arguments are untenable and contradict the essence of the legal relationship under the agreement concluded by the parties, since the signing of the transfer act itself does not constitute the fulfillment of the obligations to transfer the software product in full and properly, nor the fulfillment of other obligations under the agreement.
to the link to the manufacturer's personal brazil whatsapp number database account - in the form of the defendant's own repository. "But the defendant did not provide alternative access, there is no evidence to the contrary," the court concluded. And it added that the defendant's reference to the copyright holder's refusal to carry out activities on the territory of the Russian Federation cannot serve as a release from obligations and liability under the contract - since, according to its terms, it was the defendant who assumed the obligation to maintain the plaintiff's access to the information resources necessary for reproducing the licensed computer program. Having guaranteed, in particular, not only the validity of the transferred rights, but also their feasibility - precisely by taking on the obligation to maintain the relevance of the hyperlink, as well as the availability of the software product for downloading/uploading during the entire term of the contract.
The defendant provided an expert opinion on the possibility of continuing to use VMware NSX Advanced Load Balancer from 03/05/22, but the court did not consider it sufficient evidence of the fact of proper fulfillment of obligations, since the terms of the sublicense agreement itself provide for a guarantee for the entire software product, including its updates. During the period from April 7, 2022 to August 26, 2023, a number of new versions of this product were released (from 21.1.4 to 30.1.1), containing both functional improvements and corrections of significant errors. And since these versions were not received by the plaintiff in the manner and volume established by the sublicense agreement (and could not have been received even if the defendant had placed the original, February version on its own repository in Russia), the court nevertheless recognized the plaintiff's interests as violated.
As a result, the court considered the cost of the license to be compensation for providing the plaintiff with a non-exclusive license to use the software product, in relation to which all the conditions agreed upon by the parties are met, including the conditions for updating and technical support, and the funds paid by the plaintiff as compensation under the sublicense agreement were considered unjust enrichment of the defendant. The court concluded that at the time of consideration of the dispute on the merits, the defendant had not fulfilled its obligations, and therefore the agreement is subject to termination due to the defendant's breach of obligations, ruling:
"To collect from the limited liability company Merlion in favor of the public joint-stock company Sberbank of Russia 17,728,927 rubles 98 kopecks in penalties, the amount of unjust enrichment in the amount of 1,772,892,798 rubles 36 kopecks, interest in the amount of 1,772,892,798 rubles 36 kopecks, based on the key rate of the Central Bank of the Russian Federation in the relevant periods, from the date following the date of entry into force of this decision until the date of actual fulfillment of the obligation, 175,965 rubles in reimbursement of expenses on state fees."
It is not yet known whether an appeal will be filed, and if so, what the outcome of its consideration will be is also unclear. The parties to the dispute are currently refraining from commenting.
The court, the said decision states, found the defendant's arguments that its obligation to grant the right to use the software to be limited to the moment of transfer of the hyperlink to be untenable, and did not imply subsequent provision of accessibility to this hyperlink. According to the court, these arguments are untenable and contradict the essence of the legal relationship under the agreement concluded by the parties, since the signing of the transfer act itself does not constitute the fulfillment of the obligations to transfer the software product in full and properly, nor the fulfillment of other obligations under the agreement.
to the link to the manufacturer's personal brazil whatsapp number database account - in the form of the defendant's own repository. "But the defendant did not provide alternative access, there is no evidence to the contrary," the court concluded. And it added that the defendant's reference to the copyright holder's refusal to carry out activities on the territory of the Russian Federation cannot serve as a release from obligations and liability under the contract - since, according to its terms, it was the defendant who assumed the obligation to maintain the plaintiff's access to the information resources necessary for reproducing the licensed computer program. Having guaranteed, in particular, not only the validity of the transferred rights, but also their feasibility - precisely by taking on the obligation to maintain the relevance of the hyperlink, as well as the availability of the software product for downloading/uploading during the entire term of the contract.
The defendant provided an expert opinion on the possibility of continuing to use VMware NSX Advanced Load Balancer from 03/05/22, but the court did not consider it sufficient evidence of the fact of proper fulfillment of obligations, since the terms of the sublicense agreement itself provide for a guarantee for the entire software product, including its updates. During the period from April 7, 2022 to August 26, 2023, a number of new versions of this product were released (from 21.1.4 to 30.1.1), containing both functional improvements and corrections of significant errors. And since these versions were not received by the plaintiff in the manner and volume established by the sublicense agreement (and could not have been received even if the defendant had placed the original, February version on its own repository in Russia), the court nevertheless recognized the plaintiff's interests as violated.
As a result, the court considered the cost of the license to be compensation for providing the plaintiff with a non-exclusive license to use the software product, in relation to which all the conditions agreed upon by the parties are met, including the conditions for updating and technical support, and the funds paid by the plaintiff as compensation under the sublicense agreement were considered unjust enrichment of the defendant. The court concluded that at the time of consideration of the dispute on the merits, the defendant had not fulfilled its obligations, and therefore the agreement is subject to termination due to the defendant's breach of obligations, ruling:
"To collect from the limited liability company Merlion in favor of the public joint-stock company Sberbank of Russia 17,728,927 rubles 98 kopecks in penalties, the amount of unjust enrichment in the amount of 1,772,892,798 rubles 36 kopecks, interest in the amount of 1,772,892,798 rubles 36 kopecks, based on the key rate of the Central Bank of the Russian Federation in the relevant periods, from the date following the date of entry into force of this decision until the date of actual fulfillment of the obligation, 175,965 rubles in reimbursement of expenses on state fees."
It is not yet known whether an appeal will be filed, and if so, what the outcome of its consideration will be is also unclear. The parties to the dispute are currently refraining from commenting.