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By executing the Order Form or by clicking on the “I Accept”, “I Agree”, “Install” or similar button or checking the “I Accept” or similar box at the end of the installation process, the Customer hereby agrees to be bound by these terms and conditions pertaining to the installation and use of the Software.
“Customer” means the customer of PROTA who had executed and returned the Order Form to PROTA;
“Agreement” collectively means (a) the Order Form; (b) these terms and conditions; and (c) the end user license agreement applicable to the respective Software;
“License Key” means a series of letters and digits provided by PROTA to the Customer in order to allow the Customer, its employee(s) and/or its agent to access the Software;
“Licensing Term” means the licensing period granted by PROTA to the Customer as enumerated in the Order Form;
“Maintenance Services” means the maintenance and support services for the Software provided by PROTA to the Customer in accordance to Clause 7.1;
“Maintenance Term” means the maintenance period subscribed by the Customer and more particularly described in Clause 7.2;
“Order Date” means the date of execution of the Order Form by the Customer which shall also be the effective date of the Agreement;
“Order Form” means the duly completed and executed form(s) by the Customer which comprise of the details of the products and services to be purchased and/or subscribed and the related pricing;
“PROTA” means PROTA YAZILIM BILISIM VE MUHENDISLIK HIZMETLERI A.S. (Company No.: 172202), a company incorporated in Turkey and having its business address at Teknokent Galyum Binasi Kat:1, No: 20 ODTU – TEKNOKENT 06531, Ankara, Turkey and shall include any of its subsidiaries and/or assigned agents;
“Services” means any services related to the Software to be performed by PROTA;
“Sub-release” means a modification to the Software that incorporates the correction of errors (bug fixes) and/or minor functional enhancements to the Software on as when and if available basis. For the avoidance of doubt, Sub-release shall in no circumstances include a new main release of the Software;
“Software” means to software purchased by the Customer from PROTA in accordance to the description in the Order Form and this expression shall include data derived from the software; and
“Territory” means the country(ies) as set forth in the Order Form where the software license may be used by the Customer.
Subject to the terms and conditions set forth herein, PROTA hereby grants the Customer a perpetual, non-exclusive, non-transferable, non-assignable right to access, install and use the Software in the Territory during the Licensing Term.
Notwithstanding the above, in the event the Software is identified as the following version(s), the following sub-clause shall apply:
(a) Educational or Learning Version
The Customer is permitted to download, install, access and use the Software on a single computer for educational and learning purposes only. The Software may not be used for commercial, professional, commercial training or other for profit purposes.
(b) Evaluation Version
The Customer is permitted to download, install, access and use the Software on a single computer for a period of thirty (30) days for evaluation purpose only or unless otherwise specified by PROTA in writing. The Software may not be used for commercial, professional or other for profit purposes.
(c) Short-Term (Rental License)
The Customer is permitted to download, install, access and use the Software on a single computer over a term as specified in the Order Form. If no specific term is provided in the Order Form, the license shall automatically expire after thirty (30) days upon the first installation of the Software.
The Customer agrees that any use of the Software beyond the applicable Licensing Term or any attempt to defeat the time-control disabling function in the Software amount to an unauthorised use and constitutes a material breach of the Agreement.
Unless specified otherwise in the Order Form, the price for subscription of the Software and the Services shall be the price as specified in the Order Form. The Customer acknowledges that the price stated in the Order Form shall be exclusive of goods and services tax and any other taxes, duties and charges which may be applicable unless otherwise indicated. PROTA reserves its right to revise the prices from time to time after taking into account any cost adjustments related to the Software or the Services, which occurs between the Order Date and the delivery date.
Unless specified otherwise in the Order Form, the licensing fees, maintenance and training fees are due on the Order Date. All payment made by the Customer to PROTA are non-refundable. Without prejudice to PROTA’s other rights, in the event the Customer fails to pay any amount due to PROTA by the due date, PROTA shall have the right to:
(a) cancel any contract made with the Customer and/or to suspend deliveries; or
(b) charge late penalty interest on a daily basis for the overdue amount at the rate of two per centum (2%) per month.
The Software is accessible by the Customer in a machine-readable format (object code) on data storage media or PROTA may provide the Software for download from the Internet. In the event a third party is appointed for the installation of the Software, the non-performance or non-delivery of services provided by such person shall not entitle the Customer any right to delay payment which is legally due to PROTA.
The title and risk to the Software shall pass to the Customer on delivery of the Software. In the event the Software or any equipment in which the Software is installed is lost or stolen, the license for the use of the Software will be suspended and the Customer shall within three (3) days by way of written notification inform PROTA of the occurrence of such event. In the event PROTA agrees to allow the Customer to continue using the Software, PROTA may grant another License Key to the Customer subject to payment of fee based on its standard price list at the date of delivery.
The Licensing Term shall commence on the Order Date and continues unless earlier terminated by either party in accordance with Clause 9.
Subject to the limitation described in these terms and conditions, the Customer acknowledges and agrees that the license granted by PROTA to the Customer for the use of the Software is for internal use only. The Customer shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell the Software to any person. However, the Customer is permitted to grant access to the Software to the following parties:
(a) employees of the Customer;
(b) information technology contractor(s) engaged by the Customer; and/or
(c) any third parties service providers.
The Customer shall uninstall the Software and take all necessary steps to prevent the Software from being disclosed to or falling into the hands of third parties prior to any disposal of equipment. Any failure to adhere to this Clause shall be deemed as an unauthorised use by the relevant third party.
Subject to payment of an additional fee for each License Key as enumerated in the Order Form by the Customer (“Maintenance Fee”), PROTA shall provide the following Maintenance Services to the Customer:
(a) hotline support service which include direct telephone, fax and email support services that are available during office hours from 9 AM to 5 PM, Mondays to Fridays (excluding public holidays);
(b) correction of any programming errors which are attributed to the Software and which prevent the Software from functioning substantially in accordance with the specification published in the user documentations; and
(c) minor program modifications and functionality enhancements to the Software as and when such modification and enhancement are available.
Subject to the payment of the Maintenance Fee by the Customer to PROTA, the Maintenance Term shall commence from the beginning of the month following the Order Date and shall continue until the last date as enumerated in the Order Form. In the absence of any written notification pertaining to the Maintenance Service, the Maintenance Term shall automatically renew on each anniversary for a period of one (1) year unless terminated earlier by either party in writing. In this regard, the party intending to terminate the Maintenance Service shall furnish to the other party a written notification of at least ninety (90) days prior to the end of the current Maintenance Term specifying its intention for termination of the Maintenance Service.
Subject to the payment of a separate fee for training which shall be based on PROTA’s standard rates as of the Order Date, PROTA shall provide training to the Customer or its employee for the use of the Software. The types of training to be provided and the training date shall be in accordance to the details enumerated in the Order Form.
Either party may terminate the Agreement by giving the other party thirty (30) days written notice upon occurrence of the following events:
(a) if either party, being a company pass a resolution or the Courts make an order that the company be wound up otherwise than for the purpose of reconstruction or amalgamation or if a receiver or manager on behalf of a creditor is appointed; or
(b) if either party is in breach or in default of any material term of the Agreement and such breach is not remedied within thirty (30) days upon receipt of written notice by the other party.
PROTA shall be entitled to terminate the Agreement in the event the Customer breaches the confidentiality obligation pursuant to Clause 11 or failure of the Customer to make prompt payment to PROTA as and when it became due.
The Customer agrees that termination or expiration of the Agreement shall not release the Customer from any obligations that accrued prior to the date of such termination or expiration.
The Customer acknowledges that the Software including all data, concepts, graphics and any documents related to the Software and all patent, trade mark, copyright and other intellectual property rights of the Software shall at all times remain the property of PROTA and/or its licensor. Except as expressly provided in these terms and conditions, PROTA does not grant any express or implied rights to the Customer for the use of the Software.
The Customer acknowledges and agrees that the Software and any document associated with the Software are confidential and proprietary to PROTA and/or its licensor (as the case may be). The Customer agrees to keep all information obtained from PROTA in relation to the Software confidential by exercising the necessary care required to prevent any unauthorised disclosure. Notwithstanding the above, the Customer shall not disclose, divulge, distribute, publish, transmit or transfer any information related to the Software to any third party or use the Software for any purpose whatsoever other than as expressly authorised by these terms and conditions. The Customer shall keep the Software secure, and prevent unauthorised access thereto and copying or use thereof. The Customer further agrees to immediately notify PROTA in the event it becomes aware of any unauthorised possession, use, transfer or sale of the Software by any person or entity without license. The confidentiality obligation under this Clause shall survive termination of the Agreement.
Subject to the limitations and conditions set forth herein, PROTA represents and warrants that the Software licensed to the Customer shall perform substantially in accordance with the product specification for a period of ninety (90) days from the Order Date. PROTA’s sole obligation and liability under this Clause shall be limited to undertake reasonable effort to correct defects in the Software or to provide a duplicate copy of the Software. This Clause shall in no circumstance entitled the Customer to a new main release of the Software. The Customer further agrees that PROTA shall have no obligation to perform any work or provide any Software under this warranty provision if the Customer is in default of any payment due pursuant to the Order Form.
In addition to the above, PROTA shall in no event warrants that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. Further, due to the continual development of new techniques for intruding upon and attacking networks, PROTA does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
PROTA shall not be liable for any incidental, consequential damages or loss of profits arising out of or in connection with the delivery, use or performance of the Software or in connection with the fulfillment of any obligation under the Agreement. Under all circumstances, PROTA liability shall be limited to the total license fees received from the Customer pursuant to the Order Form.
The Customer agrees to indemnify, hold harmless and defend PROTA and its licensors, their respective officers, directors, members, employees, affiliates, shareholders, agents, successors, representatives, and assigns from and against any claims or suits, including reasonable legal fees, which arise or result from the use of the Software, breach of any terms and conditions of the Agreement, or use of the Software in violation of any applicable law.
Similarly, PROTA agrees to indemnify, hold harmless and defend the Customer from and against any claims or suits, including reasonable legal fees, which arise or result from claim that the use of the Software infringes or violates any copyright or patent of a third party. In this regard, PROTA may at its sole option and expense:
(a) procure the right for the Customer to continue using the Software in the manner permitted hereunder;
(b) replace or modify the Software so that it becomes non-infringing; or
(c) terminate the Agreement and refund to the Customer on a pro rata basis any license fees paid in advance to PROTA.
The Customer acknowledges that the foregoing remedies shall be the sole and exclusive remedies in the event of a successful claim of infringement. PROTA shall have no liability to the Customer if any infringement is based upon:
(a) the Customer’s use of the Software in combination with any software not furnished by PROTA;
(b) if the Software is accessed or used in a manner for which it is not designed or permitted; or
(c) if the infringement is based upon modifications of the Software by the Customer.
During the term of the Agreement, PROTA may by giving no less than three (3) days written notice to the Customer, audit or appoint its external auditor to audit all books, records, and computing devices of the Customer to determine the Customer’s compliance with the Agreement and payment of the applicable license fees, if any, for the Software. In the event that any such audit reveals an underpayment of more than five per centum (5%) of the license fees due to PROTA in the period being audited, or that the Customer has breached any term of the Agreement, then, in addition to any other rights and remedies PROTA may have, the Customer shall promptly pay to PROTA any underpayments plus the cost of the audit.
Subject to prior notice to the Customer, the audit may also be conducted electronically utilising audit functionality of the Software. Such electronic audit shall not however limit PROTA’s right to conduct further audit through non-electronic means.
Neither party shall be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. However, this exception shall not apply to any payment obligations for amounts outstanding and/or due to PROTA that have accrued as of the date of the force majeure event.
The Agreement and other documents referred to herein contain the entire agreement of the parties with respect to the subject matter. It constitutes the only conduct relied on by the parties (and supersedes all earlier conduct by the parties).
The Agreement may be amended only by another agreement executed by the parties in writing.
Unless specified otherwise by PROTA in writing, neither the Agreement nor the license(s) granted pursuant to the Agreement may be assigned, sublicensed or otherwise transferred by the Customer to any other person without prior written consent of PROTA. Any such assignment without prior written consent of PROTA shall be void and of no effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
No failure to exercise and no delay in exercising any right, power or remedy under the Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
Any provision of the Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of the Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
Time wherever mentioned shall be of the essence of the Agreement, both as regard to the dates and periods specifically mentioned and as to any dates and periods which may be agreed in writing between the parties be substituted for them.
The Agreement is governed by and construed in accordance with the laws of Singapore. The parties agree to submit to the non-exclusive jurisdiction of the courts in Singapore.