This Subscription Agreement (“Agreement”) is entered into and effective as of [__________________] (the “Effective Date”) by and between Pisano Müşteri İletişim Çözümleri ve Bilgi Teknolojileri A.Ş. having a place of business at Zorlu Center Levazım Mh. Koru Sk. No:2 Daire:564 34340 Beşiktaş/İstanbul (“Pisano”) and [__________________], a [__________________] corporation, having its principal place of business at [__________________] (“Customer”).
The parties agree as follows:
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Acceptable Use Policy” means Pisano’s acceptable use policy for the Service, which can be found attached hereto as Annex D;
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service;
“Deliverable” means any software, studies, documentation and/or other materials prepared by Pisano for Customer;
“Evaluation Period” means period that, where applicable, Service being provided for a fee or free of charge commencing upon executing a Service Subscription Order Form prior to execution of this Agreement to evaluate the Service.
“Hardware” means property whose details, quantity and the Customer’s term of possession has been listed in Schedule C of this Agreement, assigned for use of Customer and User by Pisano in relation to providing of Service bearing the expression: “Proprietary right of this property is owned by Pisano Müşteri İletişim Çözümleri ve Bilgi Teknolojileri A.Ş.”
“Enforcement Date” means end of the Evaluation Period to be determined mutually by Customer and Pisano and/or the signature date of Service Subscription Order Form directly.
“Initial Subscription Period” means an initial subscription period for the Service as specified in Schedule A or a Service Subscription Order Form signed by Customer;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Professional Services” means the services to be provided by Pisano to Customer for the development of Deliverables, all as described in a SOW;
“Service” means Pisano’s Voice service for facilitating retail customer feedback, interaction and engagement;
“Service Fee” means the monthly fees as specified in Schedule A or a Service Subscription Order Form signed by Customer, which is payable by Customer to Pisano for the right to receive the Service;
“Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the parties;
“Subscription Renewal Period” means subscription period which is the same as Initial Subscription Period in case parties have not declared their will to terminate the agreement at the end of Initial Subscription Period.
“Term” has the meaning ascribed to that term in Section 10.1;
“Terms of Service” means Pisano’s general User terms of service, which can be found attached hereto as Annex B.
“User” means individual or entity who is authorized by Customer to use the Service to communicate with Customer.
Grant of License.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Pisano shall make the Service available to Customer during the Term and Customer’s right to use the Service during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in Schedule A or the Service Subscription Order Form(s) executed by Pisano and Customer. As part of Customer’s subscription for the Service, Customer shall be entitled to allow Customer’s Users to access the Service for the sole purpose of interacting with Customer regarding feedback on Customer’s products and services and for interacting with Customer in respect to promotions or any other User engagement initiatives or activities that Customer may make available. Customer will make the Service available to a User by providing such User with a QR code or URL that allows the User to access a website for the purpose of interacting with the Customer via the Service (such interaction generally being referred to as a “Voice”).
2.2 Customer Accounts. Customer accounts are for use by designated employees of Customer for interacting with and administering the Service as used by Customer and cannot be shared or used by more than one employee but may be reassigned to new employees replacing former employees who are authorized by Customer to use or administer the Service.
2.3 Customer Affiliates. Customer Affiliates may use the Service subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
2.4 User Interactions. When providing Users with access to the Service, Customer shall ensure that such Users are provided with notice of the Acceptable Use Policy and privacy principles. Pisano shall have the right to terminate access to the Service for any User who breaches the terms of service herein, the Acceptable Use Policy and/or the privacy principles.
Use of the Service.
3.1 Pisano Responsibilities. Pisano shall: (i) in addition to its confidentiality obligations hereunder, not use or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer and the applicable Users(s); (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer via phone (+902129510874) or emails (email@example.com), at no additional charge between the hours of 9 a.m. – 5 p.m. ET Monday to Friday; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Pisano shall give at least eight (8) hours notice via the Service and which Pisano shall schedule to the extent reasonably practicable during the weekend hours from 5:00 p.m. Turkey Time Friday to 9:00 a.m. Turkey Time Monday); or (b) any unavailability caused by circumstances beyond Pisano’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Pisano employees), computer, telecommunications, Internet or wireless service provider or hosting facility failures or delays involving hardware, software or power systems not within Pisano’s possession or reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s accounts and for its employees and contractors compliance with this Agreement and the terms of service which are defined in this Agreement, privacy principles and Acceptable Use Policy. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data input by or on behalf of Customer; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Pisano promptly of any such unauthorized access or use; (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service; and (iv) comply with the Acceptable Use Policy and the privacy principles that are regulated under this Agreement. (v) The trade- marks, logos and company names of Pisano or any of its affiliates and licensors used as part of the Service and the Pisano Content may not be copied, imitated or used, in whole or in part, without the prior written consent of Pisano or any such affiliate or licensor.
3.3 Customer Responsibilities Regarding Hardware. Hardware has been delivered to the Customer by Pisano at any location of the Customer or any store, branch, hotel, restaurant and other places on the date Service Subscription Order Form has been signed. Hardware has been listed by values in Schedule C of this Agreement and has been received with acceptance of the Customer. Customer acknowledges, agrees and warrants in advance and irrevocably to maintain Hardware in good form, take any measures to prevent any damages that may occur, protect, guard, not move from its usual place and not to displace.
In case of Hardware to be broken, stolen, damaged, incurring loss, altered with unoriginal copies or loss of the value considering its previous state or in case of any action, situation/fact that requires replacement, without prejudice to Pisano’s rights to claim, sue, indemnity for surplus, Customer in advance and irrevocably acknowledges, agrees and warrants to make penalty payments for each Hardware, as to values stated in Schedule C as penalty payment to Pisano, subject to Article 179/2 of the Turkish Code of Obligations. Upon occurrence of any of said situations, in case of a penalty payment made to Pisano by the Customer, Pisano’s other claims and rights under this Agreement will remain unharmed. Pursuant to this provision, provided that primarily User, third party/parties (including entire staff, employees, officers of the Customer; in case there is a subcontracting relationship between the Customer and another company, entire staff, employees and officers of the said company) caused occurrence of any of the said situations directly or indirectly, Customer cannot claim non-liability to Pisano regarding the damages occurred.
In case of any legal attachment to be exercised to Customer’s assets and place of business where Hardware is located, Customer is obliged to notify Pisano immediately and to prevent Hardware from being attached. Provided that the Hardware is attached despite Customer’s effort and diligence with good faith, Customer acknowledges, agrees and warrants in advance to assist Pisano before legal authorities by means of any necessary ways within the scope of good faith to release the attachment on the attached Hardware.
Customer shall not remove, replace and/or deface the inscription “Proprietary right of this property is owned by Pisano Müşteri İletişim Çözümleri ve Bilgi Teknolojileri A.Ş.” on the Hardware. In case of removal, replacement and/or defacement of the said inscription by any reason and by any person, Customer is obliged to replace the said inscription with the new one.
Customer shall deliver and return the Hardware free from any damages and defects in case of termination and/or ending of this Agreement by any reason within the day of ending of this Agreement. In case of delivery and return of the Hardware on a date that is later than the date to be determined pursuant to this provision, Customer is liable to Pisano for the damages occurred between the date determined pursuant to this provision and the date of late delivery in case of occurrence of situations mentioned above.
3.4 Utilization. Customer shall not: (i) license, sublicense, sell, resell, rent/ lease, transfer, distribute or otherwise commercially exploit or make the Service available to any third party other than Users as permitted by this Agreement; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
Pisano reserves the right to amend unilaterally its Acceptable Use Policy and privacy principles . Any change will be notified to Customer within fifteen (15) days (through Service and/or Pisano’s website). Customer’s continued use of the Service after modification of the Acceptable Use Policy and privacy principles constitutes Customer’s and User’s acceptance of such modifications.
Pisano has right to terminate Customer/User’s access to the Service or terminate the Service immediately without being obliged to notify the Customer/User in case of breach of any provisions or conditions defined under this Agreement which is about the use of the Service and under Acceptable Use Policy.
3.5 Professional Services. If Customer wishes to order Professional Services, Customer shall notify Pisano and the parties will negotiate in good faith an applicable SOW. Upon execution of an SOW by the parties and subject to the terms and conditions set forth in Schedule B, Pisano will provide Professional Services (including the development of Deliverables) for Customer all as described in such SOW.
3.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
3.7 Marketing Rights (i) Customer grants Pisano a worldwide license to use the Customer name, logo, certificate of approval and with marketing initiatives, about information on deployment of Service, including but not limited to case studies, website posts, presentations, tradeshows, promotional material, and press releases; (ii) Pisano may use the trademarks or logos of the Customer with the prior written consent of the Customer.
3.8 Deployment Responsibilities. Customer shall be responsible for the following Service deployment activities: (i) configuration information (users, store lists, messaging and logo approvals); (ii) procuring devices, kiosks, scoreboards and any related hardware, connectors or cables for deploying the Service at Customer locations; (iii) Wi-Fi in locations (required only for kiosks and/or scoreboards); (iv) staff messaging, pilot oversight, ownership and endorsement; (v) ensuring devices, kiosks and scoreboards are powered and properly functioning at all times; and (vi) deploying and displaying marketing collateral on-site at Customer locations at all times. Pisano shall be responsible for the following: (i) initial Service configuration and trainer training; and (ii) configuring the Service for use by Customer, and as described in Service solution documentation or as otherwise specified in appendix A or any Service Subscription Order Form (s) executed by the parties.
Fees and Payment.
Fees. In consideration for the receipt of the Service, Customer shall pay Pisano the Monthly Services Fees, all as specified in Schedule A or an applicable Service Subscription Order Form and any Professional Services fees specified in any SOWs. All amounts are payable in [Turkish Lira (TL)].
Start of Payment of Fees. Customer acknowledges and agrees that Customer will start payment of Fees for the Service in compliance with this Agreement (i) in case Evaluation Period has not been available from execution date of this Agreement or (ii) in case Service having been provided within Evaluation Period within the scope of a Service Subscription Order Form executed by Parties, from the Execution Date onwards.
Invoicing and Payment. Fees for the Service will be invoiced on monthly basis unless otherwise specified in Schedule A or an applicable Service Subscription Order Form. Unless otherwise stated in an invoice, charges are due net ten (10) days from the invoice date. Fees for Professional Services fees will be invoiced as specified in the applicable SOW, but unless specified otherwise in the SOW will be due net ten (10) days from the date of completion of the applicable Professional Service. Customer is responsible for maintaining complete and accurate billing and contact information of Pisano.
Overdue Payments. Any payment not received from Customer by the due date may accrue at Pisano’s discretion, late charges at the maximum rate permitted by law.
Taxes. Unless otherwise stated, Pisano’s fees do not include any taxes including value-added, goods and services, stamp taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Pisano’s net income or property.
Audit Rights. Pisano shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with this Agreement.
Suspension of Service. If Customer has defaulted in payment for more than sixty (60) days or more in addition to any of its other rights or remedies, Pisano reserves the right to suspend the Service provided to Customer, until such amounts are paid in full.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Pisano owns and reserves all rights, title and interest in and to the Service. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
5.2 Restrictions and Prohibitions. Customer acknowledges that the Service and the whole content which has been created by the ones that are not users or customers and deemed to be confidential (“Pisano Content”) , constitute valuable trade secrets of Pisano and its licensors.
Customer unless otherwise agreed, shall not : (a) modify, copy, translate, reverse engineer, decompile, use as resource by diversifying or use differently disassemble, or create derivative works based on the Service; (b) combine Service or Pisano Content with other software or material; circumvent any User limits or other timing or use restrictions that are built into the Service; © remove any proprietary notices, labels, or marks from the Service if applicable; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service. (f) grant access to any third party any performance information or analysis relating to the Service and the Pisano Content; (g) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer, pledge as collateral, or otherwise grant any right to any of the Service or the Pisano Content or any of Customer’s rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body. (h) build a competitive product or service of the Service and/or the Pisano Content or a product or service with similar ideas, features and functionality as Service and/or the Pisano Content throughout the Subscription Period. (i) copy any ideas, features of functions of the Service and/or Pisano Content throughout the Subscription Period.
The Service and the Pisano Content are protected by worldwide copyright laws and treaty provisions. Customer is obliged to comply with all copyright laws worldwide in Customer’s use of the Service and the Pisano Content and to prevent any unauthorized copying of the Pisano Content.
Except as expressly provided herein, Pisano does not grant any express or implied right or license to Customer under any intellectual property right, including under any patent, trade-mark, copyright, trade secret or confidential information of Pisano or its licensors.
5.3 Customer/User Data. In the course of using the Service, Customer or Users may upload certain information, data and material, including those of Customer’s and User’s, covered by Voice . Customer warrants that the Customer/User Data that Customer or any User have uploaded to Service will (i) comply with all applicable laws; (ii) not contain, obscene, threatening, libelous, hateful, unjust or other illegal material; (iii) not include material containing software viruses, cookies, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment; and (iv) not contain any content, work, name, logo or mark that infringes any intellectual property right of any person.
Customer and each User acknowledges that Customer/User has obtained the consent to use any Personal Information (as that term is defined broadest in the all legislation) contained in the Customer/User Data from the person to whom the Personal Information relates, and that Customer/User has complied with all relevant privacy laws in collecting, using and disclosing such Personal Information.
As between Pisano and Customer, Customer exclusively owns all rights, title and interest in and to all Customer/User Data. Pisano shall not access Customer’s User accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request or as necessary for the operation of the Service or billing. Customer hereby grants Pisano a non-exclusive license for the Term to use and otherwise exploit the Customer Data as reasonably required to provide the Service. The forgoing license shall include the right for Pisano to use and copy the Customer Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics. Pisano shall use Customer/User Data in compliance with the Privacy principles defined under this Agreement.
5.4 Third Party Links. The Service may contain hyperlinks to websites managed by third parties. Pisano has no control over websites owned by third parties and Pisano makes no representation or warranty regarding, and does not endorse, any linked websites, the information appearing thereon or any of the products or Software described thereon, or the linked-party sources (including any viruses resulting from access through them), the quality of the products or Software offered, the security of performing transactions on those websites or the privacy policies on the websites in question. Links do not imply that Pisanois affiliated or associated with, or is legally authorized to use any trade-mark, trade name, logo or copyright symbol displayed on or accessible through the links or that any linked website is authorized to use any trade-mark, trade name, logo or copyright symbol of Pisano. Pisano cannot be held liable for possible damages of Customers or Users arising from use of such third- party sites.
5.5 Content. The Service may from time to time contain materials, data or information provided, posted or offered by third parties. Pisano does not warrant the accessed content’s and/or information’s accuracy and completeness or any accessed recommendation, opinion, statement or other information’s credibility while using Pisano Service. Customer and any User agrees that Pisano will have no liability whatsoever to Customer for any such third party material, data or information. Pisano is entitled to decide on whether to fix the error or defect within a part of the Service or a part of the content and/or information accessible through the Service. Pisano may make any alterations regarding the Service and Pisano Content at any time upon Pisano’s will and without being obliged to notify.
5.6 Suggestions. Pisano shall have a unexclusive, royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service. 5.7 Hardware. Customer shall not claim any proprietary right, in rem right, limited in rem rights, any similar property rights and/or title in any manner over the Hardware. Customer shall not sell, transfer, lease, assign, assign for full or partial use or borrow to a third party/parties. Customer shall not assign any in rem right and/or personal right on Hardware to the benefit of a third party/parties.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all SOWs hereunder), the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use, wholly or partially copy any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Receiving Party, may disclose Confidential Information to its affiliates, employees, representatives or similar and to the parties that have known by the Disclosing Party only if it is “compulsory” to be disclosed, and Receiving party also warrants other Party on these parties’ obligations to not disclose and to protect.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4. Return of Information. In case this Agreement between the Parties has been terminated or the purpose of the Agreement no longer requires, Confidential Information if viable, shall immediately be returned to the Disclosing Party, if not viable, shall immediately be destroyed without any copy of which detained by the Receiving Party. This obligation encompasses each Party’s and its affiliates’ employees, representatives and similar and related Party is responsible for fulfilling.
6.5 Ownership. Parties acknowledges that any intellectual property rights, right of disposition and any other rights pertain to the owner and Receiving Party does not acquire any additional right, right of disposition or benefit.
6.6 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.7 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) Confidential Information or does not prevent breach of confidentiality protections hereunder with fault shall compensate Disclosing Party’s any damages and the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
6.8 Personal Information. Personal information collected via the Service (including within the Customer Data) will be subject to the Privacy principles defined under this Agreement and Customer shall comply with the privacy principles regulated under this Agreement to the extent Customer submits any personal information to the Service or is provided with access to any personal information collected by or through the Service.
Warranties and Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Pisano warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User).
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, PISANO MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PISANO SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.1. Indemnification by Pisano. Subject to the terms and conditions of this Agreement, Pisano shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Pisano and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Pisano, (i) Customer shall notify Pisano promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Pisano sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Pisano in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Pisano’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
8.2 Mitigation. If (a) Pisano becomes aware of an actual or potential IP Claim, or (b) Customer provides Pisano with notice of an actual or potential IP Claim, Pisano may, at Pisano’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Pisano.
8.3 Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Pisano with other products, software or services not provided by Pisano; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.4 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Pisano, its Affiliates and its and their directors, officers, employees and agents (the “Pisano Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Pisano Indemnitees (i) alleging that the Customer/User Data or Customer/User’s use of the Service in violation of this Agreement infringes or misappropriates the intellectual property or other rights of or has otherwise harmed, a third party or has breached or otherwise violated any applicable personal information protection or privacy laws; or (ii) arising out of or relating to any failure by Customer to advise any of its Users of the Acceptable Use Policy , Privacy principles and/or conditions of Service under the Agreement prior to inviting such Users to use the Service (collectively, any actions, suits or proceedings falling within (i) or (ii) hereinafter referred to as “Customer Claims”) and shall indemnify and hold the Pisano Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Pisano Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Pisano shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Pisano shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Pisano shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Pisano shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
Limitation of Liability.
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF 100000 TL OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY”S INDEMNIFICATION OBLIGATION IN THIS AGREEMENT.
Term and Termination.
10.1 Term of Agreement. Customer’s subscription for the Service will start at the time of signing of the Agreement. At the end of the initial Subscription Period and thereafter at the end of any renewal Subscription Periods, Customer’s subscription for the Service will be automatically renewed for additional one year renewal Subscription Periods, unless either party gives written notice of non-renewal to the other party at least sixty days prior to the end of the initial Subscription Period or the then-current renewal Subscription Period. Collectively, the initial Subscription Period and any subsequent renewal Subscription Periods shall constitute the “Term”.
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Pisano shall refund Customer any prepaid fees for any periods after the termination of the Agreement.
10.3 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Pisano prior to the effective date of termination.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to be valid if delivered by return receipt requested mail or courier to addresses stated below:
Notices to be sent to Pisano: Zorlu Center Levazım Mh. Koru Sk. No:2 Daire:564 34340 Beşiktaş/İstanbul
Notices to be sent to Customer: [●]
or any other address to be notified from time to time pursuant to provisions of this article. However, notices and denunciations (essentially notices regarding default, annulment or termination) regulated under Article 18/III of Turkish Commercial Code, deemed to be valid only if sent through a Notary Public of Turkey or return receipt requested mail. All notices deemed to be delivered on the date they have duly delivered under Turkish Law.
Parties shall inform other Party on any changes of their addresses by return receipt requested mail. If not, notifications made to the addresses stated in this Agreement deemed to be valid.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all SOWs), without consent of the other party, (i) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets or (ii) in case of Service to be provided by any affiliates of TRPE VENTURE PARTNERS FUND I COÖPERATIEF U.A., Pisano may assign this Agreement in its entirety (including all SOWs), without consent of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed and interpreted by the laws of the Republic of Turkey,
11.8 Dispute Resolution. Regarding resolution of any dispute may arise from the Agreement, Parties have authorized Istanbul Courts and Execution Offices.
11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.10 Entire Agreement. ThisAgreement, including all schedules, exhibits and addenda hereto and all SOWs and Service Subscription Order Forms constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The provisions in the Terms of Service shall not apply to Customer’s use of the Service, but shall apply to Customer’s Users use of the Service. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto or any SOW or Service Subscription Order Form, the terms of such schedule, exhibit, addendum, SOW or Service Subscription Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.11 Counterparts. This Agreement have been executed as one original document and this document shall be kept by Pisano. Customer, upon request, may receive a copy thereof.
IN WITNESS WHEREOF, the parties’ authorized signatories have duly executed this Agreement as of the Effective Date:
Pisano Müşteri İletişim Çözümleri ve Bilgi Teknolojileri A.Ş.
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.
SERVICE FEES [Insert fees]
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.
Pisano is willing to provide Professional Services (including the development of Deliverables) on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule B. Such Professional Services may include: instruction and training on the use of Pisano products and services; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.
General. All Professional Services to be performed and Deliverables to be developed by Pisano at Customer’s request shall be described in a Statement of Work, in such form as may be mutually agreed by the parties. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule B. In the event of a conflict between a Statement of Work and this Schedule B or the Agreement, this Schedule B or the Agreement, as the case may be, shall prevail.
Pisano’s Obligations. Pisano shall perform Professional Services and develop Deliverables for Customer as described in any Statements of Work agreed to in writing by the parties. Pisano shall perform such Professional Services and develop Deliverables in a reasonable and workmanlike manner in keeping with industry standards and practices. Pisano shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing Deliverables. Customer acknowledges and agrees that Pisano may retain the services of independent consultants (“Subcontractors”) from time to time to perform Professional Services and developing Deliverables under this Schedule B or a Statement of Work. Pisano personnel and/or Subcontractors shall remain under the direction and control of Pisano. Pisano shall in the performance of any Professional Services and development of any Deliverables use reasonable efforts to comply with all Customer policies, procedures and rules that have been communicated to Pisano in writing.
Customer Obligations. Customer shall provide timely performance of its obligations under this Schedule B or any Statement of Work as required for Pisano to perform its obligations under this Schedule B or any Statement of Work. In support of such obligations, Customer shall provide sufficiently qualified personnel who are capable of completing Customer’s duties and tasks pursuant to this Schedule B or any Statement of Work. Customer acknowledges and agrees that any delay on its part in the performance of its obligations will have an effect on Pisano performance of the Professional Services and development of the Deliverables.
Pisano may provide Professional Services or may develop Deliverables at Customer’s facilities or at Pisano’s facilities as set forth in the relevant Statement of Work. If Professional Services are to be provided or Deliverables are to be developed at Customer’s facilities, Customer shall provide Pisano with access to Customer’s facilities during normal business hours and at such other times as may be reasonably requested by Pisano to facilitate the timely performance of the Professional Services and development of the Deliverables. Customer shall also provide Pisano personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services or developing Deliverables at Customer’s facilities.
Customer shall designate a project management contact for the purposes of communication with Pisano. The project management contact shall be the primary point of contact for Customer with Pisano for matters relating to the provision of Professional Services and development of Deliverables.
Price and Payment. Customer shall pay Pisano the fees set forth in the Statement of Work either on a time and materials basis at Pisano’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Customer shall reimburse Pisano for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Pisano in the performance of any Professional Services or development of any Deliverables, provided that such expenses are approved in advance in writing by Customer. The fees for Professional Services and development of Deliverables shall exclude all applicable Taxes.
Customer shall be invoiced for fees for Professional Services and development of Deliverables provided pursuant to this Agreement or a Statement of Work on a monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.
Each party shall be entitled to immediately terminate this Schedule B or a Statement of Work for cause in the event of: (i) a material breach by the other party of its obligations under this Schedule B or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party.
6.Intellectual Property Rights. Pisano shall own all right, title and interest and all intellectual property rights to any Deliverables created by Pisano pursuant to this Schedule B or any Statement of Work hereunder. Pisano shall retain all right, title and interest and all intellectual property rights to any and all Pisano proprietary information and Pisano software. Subject to payment of the fees set forth in the applicable Statement of Work, Pisano grants to Customer a non-exclusive, non-transferable (except as provided in Section 11.6 of the Agreement) license to use the Deliverables solely in connection with Customer’s permitted use of the Service as set forth in Section 2 of the Agreement.
Indemnification. Each party shall defend the other party against any actions, proceedings and lawsuits in respect to such party’s negligence or intentional misconduct where actions result in death or bodily injury to any person or damage to tangible or real property (a “Claim”) and shall indemnify and hold such other party harmless from and against any damages and costs awarded by a court of competent jurisdiction (including reasonable attorney’s fees) against such other party in respect to a Claim, subject to the conditions that: (a) the indemnified party gives the indemnifying party prompt notice in writing of each claim received by the indemnified party, (b) the indemnified party gives the indemnifying party the right to control and direct the investigation, defense and settlement of each claim, and © indemnified party has not compromised or settled the claim or made any admissions in respect thereto.
Non-Solicitation. Customer shall not enter into a contract for or of service with an employee of Pisano who has been involved with, directly or indirectly, any of the Professional Services or development of any Deliverables hereunder within twelve (12) months of such employee’s last involvement with such Professional Services or Deliverables. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the employees of Pisano.
Acceptable Use Policy of PİSANO
(i) This Acceptable Use Policy (the “AUP”) specifies various requirements and restrictions for the responsible use of the Pisano Voice service (collectively, the “Service” or “Voice”) provided by Pisano and/or its affiliated companies and subsidiaries (collectively, ““Pisano” “us” or “we”). The purpose of the AUP is to specify the type of actions and content that are contrary to our mission and philosophies as well as to specify guidelines for your use of the Service.
(i) Pisano shall have the right at any time to modify the AUP. Any use of the Service by you after such modifications shall constitute your acceptance of such modifications.
CUSTOMER AND USER CONDUCT
(i) The AUP is intended to protect the Service, Pisano and any Customers and Users of the Service from allegations of improper, inappropriate, abusive or illegal conduct. When using the Service it is your responsibility to comply with the AUP and to ensure that you are adhering to all applicable laws, rules, regulations, and commonly accepted practices of the Internet community. The prohibited uses described below are intended as guidelines regarding improper and inappropriate conduct, and should not be interpreted as an exhaustive list.
(ii) Pisano does not provide any guarantees regarding, and assumes no liability for, the security and integrity of any data or information you store or transmit via the Service or the Internet, including any data or information stored or transmitted by any computer designated as “secure.” Users of the Service shall report to Pisano any issue that could compromise the security or integrity of the Service or anyone using or providing capabilities for the Service as soon as reasonably practicable.
(iii) When a Customer sends any e-mail, text message, instant message or social media message containing informational or commercial content to a User, the Customer must comply with anti-spam legislation. Such messages will be considered unsolicited unless they are sent to a User who expressly requested receipt of such message via an “opt-in” process. It is Customer’s responsibility to prove using written evidence that each User including on any message list has expressly requested inclusion on such e-mail, text message, instant message or social media message list. In the absence of positive, verifiable proof to the contrary, Pisano will consider any complaint by a User about an e-mail, text, instant message or social media message sent by a Customer to such User to be de-facto proof that the User did not consent to the message about which the complaint was made.
INTENDED USES OF THE SOFTWARE
(i) The collection of messages exchanged between a User and a Customer that is providing a product or service is called a “Voice”. “Voice” is intended to encourage Users to provide input relating to Users’ experience with a product or service provided by a Customer. “Voice” is intended to facilitate delivery of User input about that User’s experience directly to employees of a Customer who is providing a product or service and to facilitate further exchanges between the User and the Customer that is providing the product or service.
(ii) Intended uses of the Service include:
(a) Facilitating the delivery of positive or negative Customer input to a Customer who is providing a product or service;
(b) Facilitating exchanges between a User and a Customer who is providing a product or service while both participants work towards a resolution of such User’s issue;
(c) Viewing by a User of the “Voice” that the User has created and which are stored;
(d) Administration by a Customer of information relating to its “Voice” stored on Service, including, without limitation, the Customer’s contact information, locations, employees and Customer input categories;
(e) Viewing by a Customer of reports and other compiled data; and
(f) Monitoring of Voice content by a Pisano employee or agent for content that may violate the AUP.
PROHIBITED USES OF THE SOFTWARE , INCLUDE THE FOLLOWING.
(i) Transmission, distribution, retrieval or storage of any data or other material in violation of any applicable law or regulation is prohibited. This includes, without limitation, a prohibition against using Voice to transmit or disseminate any:
(a) material that infringes, misappropriates or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the right or legal obligations of any wireless or Internet service provider or those imposed on any of its subscribers;
(b) material or data that is illegal or material or data, as determined by Pisano (in Pisano’s sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, tortious, hateful or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of Pisano or any third-party service provider involved in the provision of the Service;
© material or data that is illegal, drugs-related (e.g., heroin, cocaine), pornographic-related crime-related, violence- related, hate-related;
(d) viruses, Trojan horses, , or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
(e) material or information that is false, misleading, or inaccurate; and/or
(f) material that would expose Pisano, any third-party service provider involved in providing the Service, or any other third party to liability.
(ii) Sending unsolicited bulk email (“UBE” or “spam”) is prohibited. The sending of any form of UBE or spam through the Service is prohibited, including the sending of bulk or unsolicited electronic mail, text (SMS) messages, instant messages or social media messages in an improper or illegal manner.
(iii) Running unconfirmed mailing lists is prohibited. Subscribing email addresses, telephone numbers or social media accounts to any mailing list without the express and verifiable permission of the owner is prohibited. All mailing lists run by Customers must be express opt-in and must establish consent for each intended use and in all instances must comply with Anti-spam legislation. The subscription confirmation message received from each owner must be kept on file for the duration of the existence of the mailing list. Each owner must be provided with a simple procedure for withdrawal of consent.
(iv) Attempting to gain unauthorized access to an account or computer resource not belonging to you and/or purposely altering or forging your identity is prohibited. Sending any message or transmitting any electronic communication using a name or address other than your own for purposes of deception is prohibited. Impersonating someone else by altering your source IP address or by using forged headers or other identity information is prohibited. Fraudulently concealing, forging or otherwise falsifying your identity in connection with any use of the Service is prohibited. Engaging in any activities that may interfere with the ability of others to access or use the Service or the Internet is prohibited. Monitoring any data, information or communications on any network or system that is not owned by you or without authorization is prohibited.
(v) Repeated use of the Service that may constitute spamming or harassment is prohibited. Pisano reserves the right to limit the number of “Voice” created by a single User within a specific time period or to terminate the Service for Users violate this restriction.
CUSTOMER RESPONSIBILITY FOR CUSTOMER’S USERS
Each Customer is responsible for the activities of its employees in using that Customer’s Service accounts and passwords. Each Customer is also responsible for notifying each of its Users about the AUP. Each User is responsible for its actions using the Service and for compliance with the AUP. Complaints about Customers or Users will be forwarded to Pisano’s customer administrator for action. Pisano shall have the right to terminate any Customer’s or User’s use of the Service, with or without notice, if that Customer or User violates the AUP, as determined by Pisano.
COOPERATION WITH INVESTIGATIONS
Pisano will cooperate with appropriate law enforcement and other governmental agencies and other persons or entities authorized to investigate claims of illegal or inappropriate activity, and shall have no liability to you or any third party for any actions taken in connection with such cooperation. All Customers and Users of the Service shall assist Pisano in such investigations as reasonably required.
NOTIFICATION OF VIOLATION
If you become aware of any violation of the AUP by any person, including Users or third parties, you must notify Pisano via e-mail at firstname.lastname@example.org as soon as reasonably practicable or through your designated Account Manager at Pisano.