CLOUD BASED USER SERVICE AGREEMENT BY DISTANT SALE
1. PARTIES: This Cloud Based User Service Agreement by Distant Sale, (hereinafter referred to as “AGREEMENT”) is between EGEM BİLGİ İLETİŞİM TIC. A.S. (hereinafter referred to as COMPANY) and the person/persons (hereinafter referred to as USER) who signed the contract, to benefit from the “Cloud Based Software Testing Service” offered by the COMPANY at www.testcribe.com address. This contract has entered into force with the approval of the service sold in the electronic environment by the individual USER in the electronic environment, under the conditions detailed below.
MERSİS Number : 0325057816000001
Registery of Commerce & Trade Register Number : İstanbul Ticaret Sicili Müdürlüğü – 772363-0
Tax Office & Tax Number : 325 057 8160 Vergi Dairesi KADIKÖY
Adress : Koşuyolu Mahallesi İsmail Paşa Sokak No:39 34718 KADIKÖY / İSTANBUL
Phone : 0216 474 44 88
Kep(Registered E-mail) Adress : firstname.lastname@example.org
Company E-mail : email@example.com
2. SUBJECT AND COVERING OF THE CONTRACT:
3. GENERAL PROVISIONS:
3.1. The USER will have to "register" to the APPLICATION in order to benefit from the APPLICATION. USER accepts, declares and undertakes that it knows that it is necessary to approve and sign this AGREEMENT by presenting the information requested by the COMPANY during registration in an accurate, complete and up-to-date manner. In case of any change in its information, USER will immediately update the enounced information. The COMPANY is not responsible for the USER's inability to access the Site or the APPLICATION due to reasons such as incomplete, incorrect, inaccurate, untrue, not up-to-date infortmation enounced by itself or the CONTENT not supported by the APPLICATION.
3.2. The USER accepts and declares that he/she is over the age of 18 and has the legal capacity to sign this AGREEMENT, as well as "user registration" for the APPLICATION. The USER can also create a "user record" on behalf of a business and sign this agreement. In this case, USER accepts, declares and undertakes that it has the necessary authority for its business. In this case, the rights and obligations regarding the User status will belong to the relevant business. The USER is obliged to use the "user record" to be created on behalf of the business he is authorized, exclusively on behalf of the business authorized to represent, without seeking commercial purposes and without intermediating with third parties.
3.3. The USER has the right to create a single user account. The termination of the user account is under the responsibility of the COMPANY. In case the account is terminated, the USER cannot create a second account with his own name and information or another user name and information. The COMPANY reserves the right to refuse the opening of a user account without giving any reason.
3.4. USER’s access to the APPLICATION and the test service offered, will be done by using an e-mail address and defining a password. The USER is responsible for the security and confidentiality of the password he has created. With the use of the aforementioned information, it will be accepted that all transactions carried out on the Site and the APPLICATION are made by the relevant USER, and any legal and criminal legal responsibility arising from these activities will belong to the USER. If the USER encounters a situation such as unauthorized use of his password or violation of his security, he will immediately notify the COMPANY.
3.5. The USER accepts and commits that while registering and using the APPLICATION, he will act in accordance with the law, that he will comply with this contract and its annexes, and the legal regulations in force, and will act in accordance with both the matters related to the APPLICATION and other terms and conditions stipulated on the website. If the USER is using the APPLICATION and the website in the capacity of a Business or 3rd Person representative, then the period of use will be limited to the authorization period.
3.6. The CONTENT shared by the USER is entirely his own property. The CONTENT or any liability that the CONTENT may cause (e.g. violation, loss, damage) belongs exclusively to the USER. The Company bears no responsibility for matters such as, but not limited to, compliance with the law, content accuracy, collection, invoicing, tax reporting. The COMPANY can delete the CONTENT from the APPLICATION and from the system for reasons arising from the current legal legislation. The USER accepts, declares and undertakes that the COMPANY is free from all legal liabilities and damages that may occur in this context, including lost data, and that it cannot be held responsible.
3.7. The USER undertakes not to engage in activities that will endanger the security and integrity of the Site and the APPLICATION. These obligations are included in the website and the APPLICATION, it also applies to information and content hosted by third party individuals. The USER is obliged not to use the APPLICATION in a way that will prevent, damage or misuse the functionality of the APPLICATION, the website or all other systems where the services are offered or the APPLICATION and other users benefiting from the Site, or not to use them incorrectly, to the computer systems where the APPLICATION is hosted, storage area or will not provide unauthorized access to the APPLICATION outside the scope of access granted to it, will not transfer or upload files or illegal content that will harm the COMPANY's and 3rd parties' computer systems, devices and software, storage areas, data, to the Site and the APPLICATION, or the programs used in the work of the Site and the APPLICATION, will not change, copy, reproduce, adapt, create source code or reverse engineer. The USER shall not produce, use or test any copyrighted or trade secret content and other materials that do not have the right to use them. Otherwise, all responsibilities belong to the USER.
3.8. The USER agrees that his use of the Site or the APPLICATION may be subject to restrictions, including monthly transaction and storage volumes. These restrictions will be stated in the APPLICATION.
3.9. The USER shall keep copies of the CONTENT uploaded to the Site or the APPLICATION. While the COMPANY complies with the necessary policies and procedures to prevent data loss, it does not guarantee that the loss of the CONTENT will not occur. The COMPANY is not responsible for the loss of the CONTENT, regardless of how it arises.
3.10. The COMPANY shall use the information and data shared with it by the USER within the limits specified, keeping it within the scope of this AGREEMENT, PDPL (Personal Data Protection Law) clarification text and confidentiality provisions in accordance with the current legal regulations. The USER is obliged to comply with all obligations imposed by the applicable privacy legislation and any implementation or amendment legislation that may come into force from time to time. The USER cannot hold the COMPANY responsible for any third party requests, arising from the use and disclosure of his personal information in accordance with the terms of this contract. The USER agrees that the COMPANY can share the information of the USER with the relevant authorities, in case of a request from the decretorial authorities in accordance with the current legislation. Apart from this, the information of the USER and the transactions carried out by the USER through the Site and/or the APPLICATION can be used for the security of the USER, the performance of the COMPANY's obligations and some statistical evaluations. The COMPANY also has the right to share the CONTENT with other users in order to provide requested services such as sending invoices and sharing payment information. This information can also be classified and stored on a database, and data on USER's usage and transaction information, performance evaluations can be used for marketing campaigns of the COMPANY and its business partners, annual reports and similar transactions for the period necessary for these transactions, after such data is anonymized.
3.11. In case of technical problems with the APPLICATION, the USER will make reasonable efforts to identify and diagnose the problem before contacting the COMPANY. In case the USER's need for technical support continues, the necessary support will be provided via the Site, the APPLICATION or the Technical Support Center, which he can reach at +90 850 308 3436 during working hours.
3.12. In the event that communication mediums (e.g. forums, chat tools or message center) are provided through the Site or the APPLICATION, the USER declares and undertakes to use these communication mediums only within the framework of lawful purposes. The USER will not use such communication mediums as the sale of products and services, e-mails sent without the consent of the other party, files that may harm third parties' software and computer systems, content that is insulting to other users or all kinds of illegal content, including materials outside the APPLICATION purpose. The USER accepts, declares and undertakes that he has an obligation to comply with the legal norms and communication rules in terms of all kinds of communication carried out through the Site. The COMPANY has no obligation to check the appropriateness of the communications made through the Site or the APPLICATION, or whether they are for the purposes of use of the APPLICATION. In terms of other web-based communication tools accessed through the APPLICATION or used in relation to the APPLICATION, the USER will show the care he is obliged to show when using the communication tools provided through the Site or the APPLICATION. The COMPANY has the right to remove the communication tools it provides through the Site or the APPLICATION at its own discretion, at any time.
3.13. The COMPANY has the right to revise this AGREEMENT and its annexes and make all kinds of changes on it without any prior notice, and if this right is exercised, the relevant change will come into effect automatically with the next use of the Site and the APPLICATION by the USER. If the USER does not accept such changes, his right to terminate this Agreement is reserved.
3.14. The USER cannot transfer or assign the User account and the rights and obligations arising from the use of the Site or the APPLICATION with this AGREEMENT to a third party in any way.
3.15. In the event that the USER violates this AGREEMENT and other terms and conditions within the covering of the Site or the APPLICATION, as well as the statements and commitments within this covering, the COMPANY shall have the right to terminate the user status by terminating the USER's membership. In such a case, the COMPANY reserves the right to demand from the USER the damages arising from such violation.
3.16. The USER accepts, declares and undertakes that he will not use the Content Services performed by the COMPANY for commercial purposes in any way, and that any authority, not expressly stated in this AGREEMENT, is not transferred to him.
The USER will make the payment in accordance with the procedures and conditions specified in the system, after selecting the User registration and the desired membership package, when applying for membership to the applications located in the www.testcribe.com address or the "testribe.com" domain name and subdomains. If the USER benefits from a campaign in which the COMPANY cooperates after the signing of the AGREEMENT, the campaign conditions will be in effect during the campaign. After the end of the campaign, the USER's subscription will continue through the membership package that he has previously selected. Membership will not be renewed automatically. If the service fee cannot be collected or the payment is canceled for any reason during the membership period, or if the payment cannot be collected by the COMPANY due to a technical reason, the COMPANY is deemed to be relieved of its obligation to deliver the service and to provide the service for the relevant period. In cases, where the payment is made by credit card etc., with no transaction document produced, and the credit card is used unlawfully by someone else; actions will be taken in accordance with the provisions of the “Law on Bank Cards and Credit Cards” numbered 5464 and the “Regulation on Bank Cards and Credit Cards” published in Official Gazette No. 26458, dated 10/3/2007 which is amended by and the “Regulation Amending the Regulation on Bank Cards and Credit Cards” published in the Official Gazette dated 13/06/2019 and numbered 30800. In this case; The parties accept, declare and undertake that there is no responsibility for the COMPANY.
5. PAYMENT TRANSACTIONS:
5.1. USER will be able to benefit from the APPLICATION only in return for full and complete payment with the fees and payment terms and means declared in the APPLICATION.
5.2. The USER will be able to use the APPLICATION without paying for the period specified in the APPLICATION. At the end of the said trial period, the USER's membership will become a paid membership which will be determined according to the type of service level, functionality, campaigns or contract period. Fees related to the APPLICATION, payment terms, effective dates of fees will be announced in the relevant sections of the APPLICATION.
5.3. At the end of the Membership period, the Membership will not be renewed automatically. If the USER wishes to continue to benefit from the APPLICATION, he will perform the membership renewal process for the new term by choosing the desired membership type. The USER will be able to upgrade or downgrade the membership package at his own discretion. Unless otherwise stipulated by the COMPANY, the package upgrade request will be in effect immediately and the package downgrade request will be handled at the end of the relevant membership period. Changes to be made in the fee and payment conditions of the membership package during the membership period of the USER, will not be implemented until the end of the membership period of the USER, and the new fees and payment conditions will be valid with the start of the new membership period. During the membership period, no refund will be made if memberhip expires for any reason, including avoidance of contract.
5.4. The COMPANY will send the invoice, regarding the usage fees together with the payment received at the beginning of the membership period, to the contact e-mail address provided by the USER. The USER is responsible for paying the taxes and fees related to the related fees.
5.5. The COMPANY may store the USER's credit card and payment information in order to perform membership and payment transactions or bank integration and related updates.
6. ENFORCEMENT OF THE AGREEMENT / MEMBERSHIP ACTIVATION / RIGHT OF WITHDRAWAL AND TERMINATION:
6.1. The service purchased by the USER is delivered electronically. This contract will enter into force upon acceptance by the USER in electronic form. The USER will access Content services through the membership created by entering his e-mail and password. The USER can start to benefit from the service from the moment the collection is made by COMPANY.
6.2. The contract will terminate with the expiration of the membership period or if the reasons for termination written in the contract arise. The subject of the contract is within the scope of the Regulation on Distant Contracts dated 27.11.2014 and numbered 29188, titled "...Contracts Regarding Services Instantly Performed in Electronic Environment or Intangible Goods Delivered Instantly to the Consumer..." and is not subject to the provisions regarding the Right of Withdrawal. The scope of application can be viewed by anyone without any restrictions during the trial subscription. Therefore, it is accepted that the USER has studied and liked the APPLICATION before the purchase, and within this framework, the USER has no right of withdrawal.
6.3. If the USER violates the terms set forth in this agreement, the COMPANY will immediately terminate the USER's membership without any further notice and unilaterally terminate the membership agreement. In this case, the fees paid by the USER in advance will not be refunded. Termination of the Agreement will not remove the rights and obligations of the Parties that arose up to the date of termination. With the termination of the AGREEMENT, the USER is responsible for all fees and expenses incurred up to that date, and the USER will not be able to use the Site and the APPLICATION as of the date of termination.
6.4. The COMPANY has the right to store the CONTENT in its databases as long as this AGREEMENT is in effect. Within 6 (six) months following the end of the USER's membership period or this AGREEMENT, the USER will be able to receive the CONTENT free of charge. The COMPANY may charge a fee for such requests submitted after the expiry of this period. Relevant fees will be specified within the scope of the APPLICATION.
7. INTELLECTUAL PROPERTY:
7.1. All rights, ownership and interest on the Site and the APPLICATION belong to the COMPANY. Within the scope of this AGREEMENT, the COMPANY grants the USER the right to use, copy, transmit, store and back up the information and the CONTENT for the USER's access to the APPLICATION, use of the APPLICATION and other purposes for the provision of services.
7.2. The USER has no right to copy, modify, reproduce, reverse engineer, decompile and otherwise access the source code of the software on the Site or the APPLICATION, or create work from the Site or the APPLICATION, in any way and for any reason. It is strictly forbidden to change the browser and content of the Site and the APPLICATION in any way, to link to the Site and the APPLICATION or from the Site and the APPLICATION, without the express permission of the COMPANY.
7.3. The USER will not use in any way, the trade name, brand, service mark, logo, domain name, etc. of the COMPANY (or its affiliates).
8. LIMITED LIABILITY OF THE COMPANY:
8.1. Regarding the APPLICATION, software and other content within the scope of the Site, the COMPANY does not have any 100% responsibility or commitment regarding the accuracy, completeness and reliability of the APPLICATION, software and content. The USER understands and accepts that the COMPANY also does not make any commitments regarding the relationship between the CONTENT and other User data. The COMPANY does not commit that the use of APPLICATION is uninterrupted and error-free. While the COMPANY aims to make the APPLICATION accessible and usable 24/7, it does not guarantee the functionality and accessibility of the systems that provide access to the APPLICATION. The USER agrees that access to the APPLICATION may be blocked or interrupted from time to time. The COMPANY is in no way responsible for such obstructions or interruptions. The COMPANY does not have a definite start and end time commitment regarding the work done within the scope of software development.
8.2. The USER agrees that the access to and the quality of the APPLICATION is largely based on the quality of the service provided from the relevant Internet Service Provider and Cloud Storage Space Provider, and that the COMPANY has no responsibility for the problems arising from the said service quality.
8.3. The USER is solely responsible for the content he uploads and the use of the Site and the APPLICATION. The USER accepts and undertakes that it is free from all kinds of claims and demands (including litigation costs and Attorneyship Fees) that may be communicated by third parties regarding Intellectual Property Violations, CONTENT, APPLICATION and use of the Site.
8.4. The COMPANY shall not be liable for any direct, indirect, special, incidental or penal damages resulting from the use of the Site and the APPLICATION. In addition; COMPANY makes no warranties of any kind, explicit or implied, including but not limited to the implied warranty of merchantability, fitness for a particular purpose. The liability of the COMPANY under this contract shall in any case be limited to the amount paid by the USER within the scope of the services subject to this contract until the date of the related loss.
9. FORCE MAJEURE:
The COMPANY shall not be liable for late or incomplete performance or non-performance of any of its obligations in all situations and/or unexpected situations and/or disruptive conditions, which are considered force majeure and are beyond the COMPANY's possible control and/or are considered force majeure within the scope of the Code of Obligations. These and similar situations shall not be deemed as delay, incomplete performance or non-performance or default for the COMPANY, or no compensation under any name can be claimed from the COMPANY for these situations.
10. AUTHORIZED COURT:
Istanbul Anatolian Courts and Enforcement Offices shall prevail in disputes arising from this Agreement and its annexes.
11. EVIDENCE AGREEMENT:
The USER accepts, declares and undertakes that it is in the nature of a contract, in case of disputes that may arise from this Agreement, states that the official books and commercial records of the COMPANY, the electronic information and computer records kept in its own database and servers will constitute binding, definitive and exclusive evidence, within the meaning of Article 193 of the Code of Civil Procedure.
12. MISCELLANEOUS PROVİSİONS:
12.1. The invalidity, illegality and unenforceability of any provision of this AGREEMENT or any statement contained in the AGREEMENT shall not affect the validity and enforceability of the remaining provisions of the AGREEMENT.
12.2. It is the USER's responsibility to regularly check the COMPANY platform for information and updates.
12.3. This AGREEMENT, which will be approved electronically, will be sent by the COMPANY to the e-mail address notified by the USER, after the USER subscribes and completes the necessary approvals and payments.
12.4. The USER will be contacted via the e-mail they reported while registering or through the general information on the Site and the APPLICATION. Communication by e-mail takes the place of written communication. It is the USER's responsibility to keep the e-mail address up to date and to regularly check the Site and the APPLICATION for information.
12.5. This AGREEMENT is a whole with the annexes and consisting of 12 articles and sub-articles. With the approval of the contract on the system, both parties became familiar with the contract and all its content. It enters into force electronically on the date of approval on the system. The provisions of this AGREEMENT can only be changed with a mutually concluded supplementary agreement. Any other statements and writings do not constitute an amendment of the AGREEMENT. The COMPANY reserves the right not to accept this AGREEMENT made online, without giving any reason.
12.6. The amount of compensation that the USER may demand from the COMPANY in all disputes arising directly or indirectly from this contract is limited to the amount paid by the USER to purchase the service.
12.7. The USER, who violates one or more of these contractual articles, is personally responsible for this violation, both criminally and legally. In addition, if the case is referred to the courts due to the violation, the COMPANY reserves the right to claim compensation against the USER for non-compliance with these conditions.