CLOUD SERVICE AGREEMENT
IMPORTANT: PLEASE READ THIS CLOUD SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT REGULATES THE TERMS AND CONDITIONS OF YOUR USE OF THE SUBSCRIPTION SERVICE FOR LOGO SOFTWARE. BY USING AND/OR ACCESSING THE SOFTWARE/CLOUD SYSTEM; YOU AGREE AND REPRESENT THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD THE CONTENT AND ACCEPTED THE PROVISIONS HEREUNDER. THIS AGREEMENT SHALL BE EFFECTIVE UPON YOUR USE/ACCESS OF THE SOFTWARE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SOFTWARE.
1.1. Main Licensor : shall refer to Logo Yazılım Sanayi ve Ticaret Anonim Şirketi, which owns the intellectual and industrial property rights of the Software/ Subscription Service and is located at Gebe Organize Sanayi Bölgesi, Şahabettin Bilgisu Caddesi No: 609 Gebze, Kocaeli.
1.2. Licensor/ LOGO : shall refer to Logo Infosoft Business Technology Private Limited, located a t#1302, Tower-3, Indiabulls Finance Centre, Senapati Bapat Marg, Elphinstone Road (West), Mumbai, Maharashtra 400013, India which is an independent contractor, authorized to resell and/or distribute user licenses of and/or services for Main Licensor’s Software, on its own behalf and account.
1.3. CUSTOMER: shall refer to the real or legal person purchasing the Subscription Service for the LOGO Software, of which all rights are the property of LOGO.
1.4. Software/LOGO Software: Shall refer to the standard Computer Program in human-readable or machine-readable format, which is developed by or for LOGO and whose financial rights/copyright or the right to market rest with LOGO. Unless otherwise stated, it shall refer to the software indicated in the relevant Order Form and/or in the annex of this Agreement.
1.5. Right of Access to Service: Shall refer to the CUSTOMER’s remote access to LOGO Software to use or view for internal purposes. Such right as described herein does not furnish the CUSTOMER with the right to make LOGO Software available to Third Parties.
1.6. Access Location: Shall refer to “Software access locations” such as headquarters, retail stores, authorized services or call centers, where the Customer receives/shall receive Service and where applicable for the LOGO Software indicated in the Order Form.
1.7. Service/Subscription Service: Shall refer to remote access and use of LOGO Software during the term of the Agreement within the scope and in accordance with the terms of this Agreement.
1.8. Order Form: Shall refer to the sales agreement signed between LOGO and the CUSTOMER and indicating the Software for which the Subscription Service is provided.
1.9. Activation Key: Shall refer to the “password key” which shall be generated by LOGO in order to enable the CUSTOMER’s remote access to LOGO Software.
1.10. Territory: Shall mean the Republic of Turkey.
1.11. Data Centers: Shall refer to any LOGO or third party hosting sites/locations with a hosting service provider operating certificate, where LOGO Software and CUSTOMER data shall be stored in order to enable the CUSTOMER to receive the Subscription Service which the CUSTOMER shall be entitled to receive under this Agreement.
1.12. Documentation: Shall refer to any and all printed or digital documentation developed by LOGO for the use of LOGO Software.
1.13. Intellectual Property Rights: Shall refer to, but not limited to, any patents, copyrights, trademarks and/or other intellectual property rights and relevant documentation rights.
1.14. Version: Shall refer to different models as a result of significant and fundamental modifications in the technical infrastructure, functions, operating capacity or features of the Software.
1.15. Edition: Shall refer to superficial changes for the purpose of bringing several innovations to the Software, improving the performance of the Software or ensuring its compliance with current legal regulations.
1.16. Service Providers: Shall refer to Third Parties performing part of the services subject to this Agreement professionally, operating at the national level and holding a certificate if required by legislation.
1.17. Third Party: Shall refer to all public and private local and foreign “persons” with legal capacity including real persons, sole proprietorships or corporations or institutions, organizations, foundations and associations, other than the parties to the Agreement.
1.18. Third Party Software: Shall refer to any software product whose proprietary rights are the property of Third Parties.
1.19. Territory: Shall mean the Republic of India.
This Agreement sets forth the mutual rights and obligations of the CUSTOMER and LOGO relating to the Subscription Service for the LOGO Software stated under the Order Form to be provided to the CUSTOMER during the term of the Agreement.
This Agreement shall be valid for 1 (one) year after its effective date. The Agreement shall be renewed automatically for a period of one year unless either party thereto sends a written notice to the other party of its decision not to renew the Agreement at least 30 (thirty) days prior to the date of expiry.
4. SCOPE OF SUBSCRIPTION SERVICE
4.1. Scope of Subscription Service
The CUSTOMER and Access Locations may use, run and view the Software online through remote access for their internal business needs in accordance with the rights and restrictions stated hereunder and for the term of the Agreement. LOGO shall make the Software available to the CUSTOMER through remote access by storing it at the Data Center. The CUSTOMER shall not exceed the number of users/centers/branches stated under the Order Form under any circumstances.
In the event any Access Locations not within the legal entity of the CUSTOMER are explicitly granted the right to Access Service under this Agreement or the Order Form; CUSTOMER shall ensure that the relevant Access Locations accept the terms of this Agreement in writing.
The non-exclusive license/right granted to access/use the Service with respect to the Software within the scope of the Subscription Service shall be valid during the term of the Agreement. LOGO reserves the right to grant the same and similar services, licenses to Third Parties and exercise its “financial rights/copyright” on the Software to its own preference. The rights created on behalf of the CUSTOMER under this Agreement shall not impose any restrictions on LOGO in respect to exercising the Intellectual Property rights in its possession.
“The new versions and editions/updates of the Software released by LOGO under the Subscription Service within the term of the Agreement” shall be available to the CUSTOMER free of charge during the subscription period including the subjects and modules within the scope of the Agreement. Unless otherwise stated by LOGO; additional service purchases relating to capacity increase such as increasing the number of users or Access Locations listed in the Order Form shall be subject to the provisions of this Agreement.
4.2. Prerequisites: Any prerequisites, if any, necessary to access the Service and for the Service to operate on Third Party Software should be announced on LOGO website. The CUSTOMER shall be solely responsible for provision of such conditions.
CUSTOMER is entitled to use the Software only with the software functions for which the Service Fee has been paid to LOGO. Even if technically possible, the CUSTOMER shall not use superior/different functions within the Software without paying the relevant service fees.
4.3. Obligations of LOGO
i. LOGO shall ensure operation and accessibility of the Software during the term of the Agreement.
ii. The address to log onto in order to use LOGO Software is provided in the Order Form. LOGO reserves the right to make amendments at this address or the content of the site at its own discretion.
iii. LOGO shall ensure that the Software can be used in accordance with the functions defined under the Order Form and/or Documentation. LOGO shall provide the software codes required for the provision of such Service, the infrastructure necessary to provide the Service for internet based operation of the server and the Software or shall ensure their provision from Service Providers. The CUSTOMER shall be responsible for the provision of the software-hardware required for the automation system to enable access to LOGO Software.
iv. LOGO reserves the right to modify the content of the Service, release a new edition or version of the Software. To the extent that; such modification shall not cause any substantial degradation in the Service.
v. LOGO provides all its CUSTOMERs with the opportunity to use the latest edition of LOGO Software within the scope of the Subscription Service. CUSTOMER may not demand that the previous edition is kept and used or request any new features to be added to the previous editions.
vi. LOGO shall provide or ensure the provision of security of the Software.
4.4. Activation Key: The CUSTOMER shall be the sole responsible for the code, password etc. required for enabling the CUSTOMER’s remote access to the Software. In the event that such passwords, codes are lost, used by unauthorized persons etc., LOGO shall not have any legal liability.
4.5. Call Center Services:
• LOGO shall provide level 2 call service as detailed in the Order Form.
• Call Center Service shall be available between 9.00 – 22.00 everyday including official holidays (Service hours shall be between 10.00 – 22.00 on Saturday, Sunday and official holidays). Call center number is 0 262 679 89 09. In case of system failures not in connection with LOGO and requirement of additional services, additional service fees shall be invoiced separately based on the fees set forth under the Order Form.
• When new updates and patches are introduced to the Software, LOGO shall inform the CUSTOMER of such modifications through electronic media. CUSTOMER may request from LOGO that a training personnel conduct a training on such modifications. The CUSTOMER shall be charged for all such trainings based on additional service fees set forth. Dates and durations of training shall be mutually decided by LOGO and the CUSTOMER.
• Any service not expressly stated as within the scope of Call Center Services under the Agreement (including but not limited to setup, data back-up, trainings to use the product, on-site support services) shall be out of the scope of Call Center Services.
• Upon the CUSTOMER’s request and LOGO’s acceptance of such request, under exceptional circumstances, it is possible to provide support to the CUSTOMER through remote access. The CUSTOMER accepts in advance that they grant an approval for remote access to their own system within this scope. In such case, the programmes required for LOGO’s remote access to the CUSTOMER’s system shall be downloaded by the CUSTOMER, and the CUSTOMER shall provide LOGO with temporary connection passwords for fixed time and limited access. For the avoidance of doubt, the CUSTOMER shall be exclusively responsible for taking all kinds of security measures and ensuring data security with respect to LOGO’s provision of support service to the CUSTOMER through remote access. LOGO reserves the right to refuse provision of support service to the CUSTOMER through remote access.
4.6. Restrictions on Use of Service:
• Shall not loan, sub-license or rent the Software, the license Activation Key required for the Software, the user code, passwords etc. either for a fee or free of charge, or make available or resell the foregoing to any Third Party;
• Shall not assign this Agreement or any or all of the rights created hereunder to Third Parties,
• Shall not make use of the Software in a manner contrary to the national and international legislation in force or the regulations and laws relating to Internet use,
• Shall not exceed the number of users stated under the Order Form, shall not create user copies,
• Shall not use the Software or license activation key in a manner contrary to law or use it for the wrong purposes, shall not authorize any third party to perform the foregoing or shall not take part in such action.
4.7. In the event that the CUSTOMER requests that LOGO introduces new functions/features to the Software that are not available in the standard version; all such requests shall be treated as an additional project as a whole and a separate fee and project completion time shall be quoted accordingly.
4.8. CUSTOMER shall be the sole responsible for ensuring back up of the Software and any data created by using the Software and for checking the backups. CUSTOMER shall take all necessary measures to prevent data loss during provision of the Service due to the hardware, programs and systems of the CUSTOMER or Access Locations. LOGO neither makes any commitments as to the data and information of the CUSTOMER and Access Locations, nor assumes any kind of guarantee or responsibility with respect to the foregoing.
5. MUTUAL OBLIGATIONS AND SPECIAL PROVISIONS
5.1. Parties accept and undertake to perform their obligations hereunder with utmost care and to maintain close cooperation for perfect performance of the subject.
5.2. THE CUSTOMER shall;
• provide the “up-to-date hardware” and Internet access required to access the Software at the locations and ensure continuous operation of such, avoid receiving any support and service from unauthorized persons in case of a breakdown or failure
• install security software and firewall and the most up-to-date anti-virus and anti-trojan software in all computer systems,
• notify LOGO in writing when new locations/branches are included in or removed from the scope of the Service,
• prevent any unauthorized access to the Software/Service,
• ensure that any CUSTOMER data uploaded to the Software be free of any viruses or other harmful programs,
• pay the service fees and other relevant fees specified under this Agreement regularly.
6. GUARANTEES AND LIMITATION OF LIABILITY
6.1. LOGO takes utmost care to ensure substantial compatibility of the Software with the Documentation provided digitally. LOGO does not claim or undertake that the Software is error free, flawless, and perfect and that it will meet the specific requirements and/or expectations of the CUSTOMER. The Software should be accepted as is by the User.
LOGO does not give any express or implied warranty regarding, including but not limited to, the performance, merchantability, fitness for particular purpose and non- infringement.
6.2. The Software may contain information and parameters from websites operated by Third Parties. LOGO does not assume or guarantee the accuracy or safety of such information and parameters under any circumstances. CUSTOMER needs to verify the accuracy of relevant Third Party content and any data, reports and any other information developed in accordance with such content.
6.3. License and guarantee conditions of any Third Party Software within the Software shall be subject to the original license agreements/conditions of such software. LOGO does not assume any express or implied guarantees regarding, including but not limited to, performance and fitness for a specific purpose with respect to any Third Party Software. The CUSTOMER shall act in compliance with the license and guarantee conditions of Third Party Software. License and guarantee conditions, if any, of Third Party Software are provided in the relevant companies’ websites and/or in the files such as Third Party Notices.pdf enclosed in the setup files provided to the CUSTOMER. CUSTOMER shall not use any Third Party Software, for which a use license is provided hereunder, independent of LOGO Software and/or on its own.
6.4. LOGO shall have no legal liability with respect to (i) Back-up, back-up restoring processes and/or data errors and losses although such processes are carried out; (ii) Software use trainings and on-site support services; (iii) Form and report designs developed by the CUSTOMER; (iv) Improper or illegal use of the Software; (v) Negligence and omissions of Service Providers and Data Centers; (vi) Hardware, operating system, remote access network and network designs, failures and connection errors; (vii) Failures in the database software and any other software which are not the property of LOGO, any Third Party Software; (viii) Failures as a result of voltage fluctuation, power outages, viruses, internet lines and other environmental factors. The CUSTOMER shall be solely responsible for the negligence and omissions of its own employees and Access Locations.
6.5. Excluding the cases of gross fault; LOGO’s liability with respect to any pecuniary and intangible damages, losses and/or claims as a result of use of Software and this Agreement shall be limited to the “Annual Service Fee” paid to LOGO. LOGO shall not have any liability with respect to financial results and indirect losses such as loss of data, loss of profit, specific damages and/or consequential damages under any circumstances.
7. FINANCIAL PROVISIONS
7.1. Service Fees and Terms of Payment: LOGO Software shall be available to the CUSTOMER through remote access at the Access Locations set forth under the Order Form. Monthly use Service Fee for such Access Locations has been set forth in the Order Form. Service Fee shall be determined and calculated for companies, branches and users required for the relevant location upon signature of the Agreement. Service Fee shall be invoiced in advance at the beginning of each month for which service will be provided. In the event of any additional or new identifications within/in the middle of a calendar month for Access Locations accessing the Service, Service Fee shall be calculated by dividing the remaining calendar days to the total calendar days and shall be invoiced accordingly.
Unless otherwise stated, Service Fees set forth in the Order Form are not inclusive of VAT and VAT or other tax stipulated by legislation shall be added to the fees.
The increase in the fees subject to this Agreement shall be determined by calculating the arithmetic mean of the yearly increase in PPI and CPI values, announced by the Turkish Statistical Institute, compared to the same month of the previous year.
7.2. Payment Method: Monthly Service Fees shall be invoiced in advance at the beginning of each month for which service will be provided. Setup, training and other service fees shall be invoiced after provision of the service. The invoices issued to the CUSTOMER by LOGO shall be paid by the CUSTOMER within 10 (ten) days following the date of the invoice at the latest.
7.3. Default: In the event the Service Fee indicated in the Order Form is not paid in accordance with the schedule and amounts stated in the foregoing provisions; the CUSTOMER shall be deemed to have gone into default without further notice and warning. In the event any payment becomes overdue, LOGO shall have the right to claim default interest for the relevant amount, In the event the Service Fee is not paid within the fifteen day extension, LOGO may cease provision of the Service and terminate this Agreement unilaterally without any liability of compensation and/or suspend such service, In the event of failure to pay the monthly service fee for two consecutive months, the whole Service Fee (the annual fee as set forth under the Agreement) shall be due and payable. Suspension of the Service shall not abolish LOGO’s right to claim the service fee.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Intellectual Property Rights and/or commercial license rights of the Software and Documentation subject to this Agreement remain the exclusive property of LOGO and are protected under the provisions of Law on Intellectual and Artistic Works, Turkish Criminal Code, Decree Law on Protection of Trademarks and Turkish Commercial Code and Indian Intellectual property laws.
8.2. CUSTOMER shall not process or modify the Software or any Third Party Software. In the event the Software is processed or modified in breach of this provision, all rights including the intellectual property rights of the processed or modified Software shall be the property of LOGO.
8.3. The CUSTOMER shall not attempt to derive the source code of, attempt to reverse engineer, decompile, disassemble or interfere with the operation of, copy the key features of the Software subject to this Agreement and/or disclose or exhibit them to third parties, use them on its own behalf for purposes other than the subject of the Agreement, make them available to third parties other than its stores, dealers and employees.
9. BREACH OF AGREEMENT, TERMINATION
9.1. Termination For Convenience: The CUSTOMER reserves the right to terminate this Agreement unilaterally at any time provided that LOGO is informed of such intent in writing 3 (three) months before the termination of the Agreement. However, CUSTOMER shall not use the right to terminate the agreement within the first 6 (six) months following signature of the Agreement. The CUSTOMER shall continue to pay monthly service fees for a period of 3 (three) months following the notice of termination.
9.2. Breach of Agreement, Termination: In the event that one of the Parties fails to perform their obligations under this Agreement in whole or in part and fails to remedy such breach within 30 (thirty) days in spite of the written warning by the injured party, the Injured party shall have the right to terminate the Agreement for default.
In the event that one of the Parties becomes bankrupt, files a petition for postponement of bankruptcy, becomes insolvent or makes a composition with its creditors, the other Party shall be entitled to terminate this Agreement unilaterally upon written notice.
In the event that one of the Parties fails to comply with the provisions under the Confidentiality clause, the other Party shall be entitled to immediately terminate this Agreement unilaterally.
9.3. Legal Consequences of Termination: In case of termination of this Agreement by LOGO on grounds of the CUSTOMER’s breach of the Agreement; the Service Fee for the LOGO Software set forth hereunder shall be due and payable for 3 (three) more months upon termination of the Agreement and such fee shall be calculated based on yearly service fees set for use of LOGO Software. However, in such case, LOGO shall fully perform its obligations under this Agreement without limitation for 4 (four) more months upon termination of the Agreement. At the end of such term, CUSTOMER’s access to LOGO Software shall be terminated.
The Party terminating the Agreement for Cause always reserves the right to claim the damages suffered due to termination of this Agreement, in an amount to be determined by court.
10. FORCE MAJEURE
Unless stated otherwise hereunder, neither the CUSTOMER nor LOGO shall be deemed to have failed to meet their obligations under the Agreement to the extent that their failure to fulfill their obligations is due to force majeure. Force Majeure refers to all unpredictable and unavoidable events not resulting from any fault or negligence of the party relying on such force majeure. Parties hereby agree that force majeure conditions include but are not limited to the following for the purposes of this Agreement: National or international laws and regulations preventing, delaying or precluding the performance of obligations created hereunder; wars, strikes and lock-outs, earthquakes, floods, other acts of God and terrorist incidents directly affecting the Parties; Internet access and energy outages; failure to obtain the official permit required for the equipment and personnel to provide whole and complete services to the CUSTOMER or cancellation of existing permits and the like. With this clause hereby, Parties have extended the list of force majeure conditions stipulated by law.
In case of force majeure, the party relying on force majeure shall (i) promptly inform the other party, (ii) make all reasonable efforts to remedy the cause of non-performance, and (iii) perform all acts upon removal of such cause, while the other party shall not be held liable for their contractual obligations until such cause is remedied. In the event such force majeure lasts more than 2 (two) months, both parties shall have the right to terminate the Agreement without any claim for damages. Neither Party shall be entitled to claim damages from the other Party in case of any force majeure.
11.1. Information which the legislation sets forth as “confidential information” such as Personal Data or Trade Data, and any kind of non-public information belonging to one of the Parties shall be identified as Confidential Information. Any kind of digital or printed document containing Confidential Information shall be identified as documentation containing “Confidential Information” and shall be subject to Confidential Information provisions.
11.2. Parties hereby unconditionally and irrevocably acknowledge and agree that they shall not disclose any part or all of the Confidential Information which has been disclosed to them during the performance of this Agreement to third parties or institutions other than legal bodies without the consent of the other party.
11.3. Each Party shall hold the other’s Confidential Information in confidence and maintain it with the same diligence as its own confidential information.
11.4. Confidential Information shall not be reproduced, copied or used in whole or in part without prior written consent of the disclosing party. Any kind of Confidential Information made available within the scope of this Agreement and any reproductions of such information shall be returned to the disclosing party upon completion of the Service set forth hereunder or upon request of the disclosing party.
11.5. Any information which (i) was known by the other party prior to the restriction of disclosure, (ii) is independently developed by the receiving party, (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure, or (iv) is or becomes publicly known without violating any provisions hereunder shall not be deemed as Confidential Information.
The CUSTOMER shall be responsible for the accuracy, protection, storing and non-disclosure of any user codes, passwords, user names and such data, which are required to enable CUSTOMER’s online access to the Software and deemed as Confidential Information. The CUSTOMER shall not share such data with LOGO or any personnel under any circumstances.
12.1. Severability: In case of any waiver, abolition, invalidity or amendment of any of the provisions under the Agreement, the remainder of this Agreement shall continue in full force and effect.
12.2. Assignment: CUSTOMER may not assign or transfer any or all of the rights and obligations hereunder to Third Parties without prior written consent of LOGO. Any attempt for such assignment shall be void for LOGO. LOGO reserves the right to assign the rights and obligations hereunder to Third Parties which are its own or shareholders’ affiliates.
12.3. Conclusive Evidence Agreement: In case of any controversy; any and all official records and books kept by Parties and all electronic records by Data Centers relating to the Software shall constitute conclusive evidence.
12.4. Exercise of Rights: Any failure to exercise any of the rights under this Agreement shall not be deemed a continuing waiver of such right.
12.5. Governing Law and Jurisdiction: Indian courts shall have exclusive jurisdiction with regard to the resolution of conflicts arising from the execution of this Agreement. Any disputes shall be governed by and construed in accordance with Indian Law. The provisions hereunder shall be construed in accordance with the Law on Intellectual Property in India.
12.6. Notices: Parties acknowledge and undertake in advance that their addresses written hereunder are their notification addresses and that any notification sent to these addresses shall be deemed served and have the same legal effect unless any change in address is notified to the other party in writing 30 (thirty) days prior to such change.
12.7. Commercial Correspondence: LOGO may always send electronic messages or commercial electronic messages to the contact address the CUSTOMER digitally registered/had registered for the purpose of remote access to the Software. The CUSTOMER is deemed to have given prior permission/consent for sending of electronic messages, whether of commercial nature or not, sent through all kinds of electronic communication means. The CUSTOMER may exercise their right to cancel the permission/consent given and opt out of receiving electronic messages of commercial nature at any time. Such requests shall be put into process as soon as possible.
12.8. LOGO may record, process, use or exploit personal user/CUSTOMER data such as trade name, name, surname, phone number, address, tax ID , e-mail address at its own discretion for an indefinite period of time, classify them in a database and store in the database for an indefinite period of time and transfer inland, abroad or to its affiliates in accordance with the legislation for the purpose of user safety, performance of its obligations and certain statistical evaluations. CUSTOMER authorizes LOGO to record, process and use its data in accordance with this provision.
12.9. Stamp Duty: CUSTOMER shall be responsible for the payment of the stamp tax, if any, accrued in connection with the Agreement and its annexes.