Agreement") is executed and entered into force by and between OBSS Teknoloji A.Ş. ("
Company") located at Sanayi Mah. Teknopark Bulvarı No:1/8A Blok Kat:3 Kapı:8301 34906 Pendik/İstanbul and the institution ("
Institution") benefiting from the services provided via the cloud-based web application ("
1.Subject and Scope of the Agreement
The subject of this Agreement is to determine the rules and procedures relevant to the use of the Application and services provided via the Application, and rights and obligations of the Parties within this respect.
Rules, conditions, and specification documents regarding the use of the Application shall be an annex to and an integral part of this Agreement and they shall constitute the full extent of the rights and obligations of the parties along with the rights and obligations set out herein.
2.Rights and Obligations of the Parties
- The Institution agrees and undertakes the person who approves the Order Form and this Agreement is authorized to act on behalf of the Institution.
- Institution shall have a non-exclusive, non-transferable, revocable license to use the Application limited to the term of this Agreement, solely to access the services in accordance with the provisions set out under this Agreement. Such right of use granted to the Institution shall not be interpreted against the Company, as such right of use restrains the Company especially from granting the license to others and exercising its all rights freely. To the extent any component of the Application may be offered under an open-source license, Company shall make such license available to the Institution and the provisions of that license may expressly override some of the provisions of this Agreement. Nothing in this Agreement shall be construed to grant any right to obtain or use any source code of the Application to the Institution.
- The Institution shall be responsible for the use and management of all information allowing the use of the Application such as accounts, username, and password. Any activity carried out with the username and password belonging to the Institution shall be deemed as carried out by the Institution itself and the Institution shall be exclusively responsible for any damages incurred by the Institution and/or a third party resulting from the use of this information by someone other than the Institution or loss or transfer of this information. The Institution shall immediately notify the Company when it has the knowledge of any unauthorized use of the passwords or any other breach of security.
- Institution is liable for enabling test takers to install a browser extension in order to use the Application. Institution is also solely liable for performing the necessary works to integrate its systems with the Application and for any relevant result within this scope. Institution accepts and declares that the Company is not responsible for the use of integrated systems or for the integration of the Application to other systems.
- Parties shall act in accordance with the applicable data protection legislation (" DP Legislation"). Institution, acting as a data controller, shall be solely liable for ensuring that the necessary information and notices are duly provided to the end-users regarding the processing of their personal data (and that their consents are duly obtained, if necessary) within the scope of the DP Legislation in relation with the use of the Application. As the data processor, Company’s obligations are limited to those defined under the DP Legislation. The Institution agrees and accepts that the Company may use third-party hosting services to provide the Application and the services, and the servers of such third parties may be hosted at multiple locations in the world.
- It is prohibited for the Institution (i) to access, tamper with, or use non-public areas of the Application, Company’s computer systems, or the technical delivery systems of Company’s providers, including accessing or searching or attempting to access or search the Application by any means (automated or otherwise) other than through the currently available published interfaces (and only pursuant to this Agreement), (ii) to engage in actions which may threaten the security of the Application including probing, scanning or testing the vulnerability of any system or network or breaching or circumventing any security or authentication measures, or to attempt anything hindering the working of software of the Application or allowing the use of the Application by third parties; (iii) to impose any unproportionate burden on the Application, to unauthorizedly access the information and content published on the Application, to copy, erase, alter these information or attempt to these actions; (iv) to conduct activities that may threat the general security of the Application and/or that may harm the Application, Company or other institutions; (v) to use or attempt to use software effecting the functioning of the Application and the software used or to hinder, impair, reverse engineer, attack, occupy or interfere with the functioning of any software, device and servers in any way and to attempt to gain access to Company’s servers, including attempting to access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Application; (vi) to forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Application to send altered, deceptive, or false source-identifying information.
- Institution shall not permit its users to: (i) copy or duplicate the Application, any of the text, graphical documentation and/or other intellectual property; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code, or apply any other process or procedure to derive the source code of any software included in the Application,; (iii) modify, alter, tamper with, or repair the Application, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Application ; or (vi) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber the Application.
- The Institution accepts that access to the Application may be temporarily interrupted in order to implement improvements and other changes on the Application.
- Company reserves its right to revise this Agreement without prior notice at any time, to make additions or to renew and re-organize the Application or to stop (permanently or temporarily) providing the Application (or any features within the Application). Amendments made on the Agreement shall enter into force when the amended version is published on https://witwiser.io/terms-of-use-institutions. The Institution shall be responsible for regularly checking the updates on the Agreement.
- For recurring subscriptions, Institution shall promptly update its account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur during the term of the Agreement.
- All legal, administrative and criminal liability shall belong to the Institution arising from the use of the Application and conducting relevant transactions via the Application. Company shall not be held liable directly or indirectly from damages suffered or may be suffered by third parties as a result from activities conducted by the Institution via the Application and/or during the transactions and/or by its actions against this Agreement and law. All demands coming from third parties within this scope and damages suffered by the Company due to the Institution’s non-fulfillment of its obligations set out under this Agreement or applicable legislation shall be recoursed to the Institution to be paid upon first request with the secondary damages.
3.Limitation of Liability
- Company shall not be liable for any direct or indirect damages which may arise resulting from other than its own gross negligence from a breach of the Agreement, tort or other reasons related to the access to the Application, use of the Application and services. The Company shall not be liable for any fault, negligence, erasure or loss of data, delay of a process or communication, computer virus, communication error, theft, destruction, unauthorized access to or alteration or use of records resulting from a breach of the Agreement, tort, negligence or other reasons.
- THE INSTITUTION SHALL SOLELY BEAR ALL THE RISK RELEVANT TO THE USE OF THE APPLICATION AND BENEFITING FROM THE SERVICES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CRIMINAL DAMAGES, WHICH MAY BE INCURRED AS A RESULT OF THE USE OF THE APPLICATION, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR LOSS OF REPUTATION. THE SERVICES PROVIDED VIA THE APPLICATION ARE BEING OFFERED “AS IS” AND THE COMPANY DOES NOT PROVIDE ANY COMMITMENT OR UNDERTAKING WITH REGARD TO THEIR AUTHENTICITY, ACCURACY OR SECURITY. THE COMPANY DOES NOT COMMIT ANY UNDERTAKING EXPLICITLY OR IMPLICITLY REGARDING THE MERCHANTABILITY, COMPABILITY OR INFRINGEMENT FOR A SPECIFIC PURPOSE OR USE.
- The Institution accepts and declares that the availability and quality of the Application substantially depend upon the service quality provided by the relevant internet service provider, that the Company is not responsible for any problems arising from such service quality, that the Application is not free from defects and that there might be technical malfunction or access complications from time to time.
- The Institution acknowledges that the Company is not guaranteeing that there shall be no virus, worm or other types of attacks or unauthorized access to the Application or there shall be no transfer of information to or from the Application.
- In any event, Company’s liability for the damages arising from this Agreement shall be limited to the greater of $100.00 (one hundred U.S. Dollars) or the amount paid by the Institution in the past three months.
- Fees to be paid by the Institution and payment terms are set out under the Order Form.
- The Institution guarantees that its payment information is accurate and that it is authorized to use the payment instrument. Institution is responsible for safeguarding the information of its credit card used for the payment and acknowledges not to claim that the payment is made without authorization or outside its knowledge.
- Access to the Application shall be granted following the Institution’s due payment of the fees. Institution’s account and access to the Application may be suspended in the event of the non-payment of the fees.
- No refunds shall be made in case the subscription is cancelled by the Institution.
- Company reserves the right to change the fees at its sole discretion, which will be taken into consideration on the next purchase of the Institution. The Company shall use its best efforts to notify such changes in writing to the Institution.
The Company shall not be liable in the event of not fulfilling or late or incomplete fulfilling of the obligation of this Agreement in cases of force majeure. Events occurring outside of the relevant party’s control including but not limited to natural disaster, riot, war, strike, lockout, malfunctioning of telecommunication infrastructure and power outage shall be regarded as force majeure. The liabilities and obligations of the parties shall be suspended for the duration of any force majeure. If such force majeure event lasts longer than 1 (one) month, the party whose rights are violated shall be entitled to terminate this Agreement.
6.Suspension, Transfer, and Termination of the Agreement
- The Agreement shall be in force until terminated by either the Company or the Institution pursuant to following provisions.
- The Institution may terminate the Agreement by giving one-month prior notice. If the Institution stops using the Application, the Institution’s accounts may be deactivated due to prolonged inactivity under the Company’s sole discretion.
- In the event that the Institution fails to comply with the provisions of this Agreement or the Institution’s activities within the Application poses a risk in a legal, technical or information safety areas or violates third parties’ personal and commercial rights, the Company may temporarily or permanently suspend the Application or terminate the Agreement. The Institution shall not make any claims for this reason.
- The Company shall be entitled to terminate, temporarily or permanently suspend the Application and/or the Agreement at any time.
- Institution shall not transfer this Agreement and/or its rights and obligations arising from the Agreement to third parties without Company’s explicit written approval. Company has the right to transfer the Agreement and its rights and obligations arising from the Agreement to third parties.
- Fees paid by the Institution are non-refundable. The Institution shall not claim refund in case of termination for any reason.
- In the event of any dispute relevant to this Agreement, provisions set out in this Agreement shall be applied primarily and for cases for which there are no provisions Laws of the Turkish Republic shall be applied. Istanbul Central (Caglayan) Courts and Execution Offices shall have jurisdiction in disputes arising from this Agreement.
- For the disputes arising within the scope of this Agreement, Company’s records (including records kept on electronic media) shall be deemed as evidence according to Article 193 of Turkish Procedural Law.