In early February 2024, the Moscow Arbitration Court considered in an open session the case on the claim of Sberbank of Russia PJSC against Merlion LLC and ruled to recover from the defendant in favor of the plaintiff about 1.8 billion rubles (excluding interest and state fees).
Of course, the decision can still be appealed within a month from the date of its adoption, but if it remains in force, it can significantly affect the relationship of distributors with global suppliers of IT products, especially software. If they ever decide to return to Russia, of course.
It all started on February brazil whatsapp number database 10, 2022, when few could imagine how much the world would change just a couple of weeks later, the parties entered into a sublicense agreement for the use of the VMware NSX Advanced Load Balancer software product under a simple (non-exclusive) license. By the way, back in December of last year, the court brought VMware International Unlimited Company and VMware Inc. into the case as third parties (not making independent claims regarding the subject of the dispute), but they, although they were, according to the court, duly notified, did not appear at the hearing, and therefore the dispute was legally considered in their absence.
The cost of the license under the agreement was (including VAT) USD 23,403,691.20, and the plaintiff transferred the funds in full on February 18. At the same time, the licensee guaranteed the compliance of the software product with the requirements set out in the relevant appendix during the warranty period of operation of this product. The warranty period was established by the agreement at three years from the date of transfer of the license, and by warranty service the parties understood the maintenance of the operability of the software product in order to ensure its normal functioning in accordance with the technical documentation and instructions.
Since the agreement is, in fact, a sublicense, and the Russian company providing the license could not have anything to do with the VMware NSX Advanced Load Balancer code, all "ensuring the normal functioning" of the product essentially boiled down to the defendant's acceptance of the obligation to maintain the relevance (availability) of the hyperlink to the licensee's website/internal repository, as well as the availability of the software product for downloading (uploading) by the sublicensee via the hyperlink specified in the Transfer Act during the entire term of the agreement.
The situation is quite normal for the previous practice of the Russian IT market - and on February 18, 2022, accepting the relevant hyperlink and signing the acceptance certificate, the plaintiff could not even imagine that from March 1 (and up to the present) it would not be possible to download the purchased software product from the specified web address, as well as to receive the information necessary for its installation: information on the conditions (keys, logins, passwords, network address and/or network path, etc.) of access to the site/internal repository of the licensee. As a result, the plaintiff was deprived of the opportunity to exercise the user's powers - and turned to the defendant with a demand to terminate the agreement, returning the amount received.
The court's decision does not directly mention any force majeure circumstances that prevented the defendant from fulfilling its obligations under the contract. And this is understandable: VMware suspended operations in Russia and Belarus on its own initiative, in the absence of an official declaration of war by either party, and thereby undoubtedly let down its sublicensees - who now have to take responsibility for the failure to fulfill contractual obligations instead of it (and without the ability to adequately refer to external circumstances of force majeure).