The terms and conditions of this Master Services Agreement (the “MSA”) apply to all Services, as defined below, provided under each and every Service Order Form (as defined below) executed by Dora Telekomunikasyon Hizmetleri A.S., with its principal place of business located at Egitim Mahallesi Eylul Sokak Dora Is Merkezi No:12 34722 Kadikoy İstanbul – Turkey (“Dorabase”), and the customer whose name appears on the signature block of this MSA (“Customer”). By signing a Service Order Form (or by clicking on “I accept the Terms of Service” checkbox on Sign Up / Experience Dorabase / Start Your Free Trial forms on www.dorabase.com), Customer agrees to and accepts the terms of this MSA. A “Service Order Form” shall mean Dorabase standard form of service order accepted by Dorabase, as indicated by its signature thereon, or a separate schedule or addendum that specifies services ordered by Customer and that is agreed to and executed by both parties. TERMS AND CONDITIONS
IP Rights and Authorized Use:
5.1. Dorabase hereby grants to Customer, subject to Section 6 herein, a non-exclusive, worldwide, royalty-free license, during the Term, to use Dorabase Technology solely for the purposes of using the Services. Customers shall have no other right to use Dorabase Technology for any other purpose other than using the Services in a manner that is consistent with their respective specifications and intended purposes, as required by Dorabase’s acceptable use policy referenced in Section 5 below. During the Term, Customer may not rent, resell, lease, copy or encumber in any way, Services to any third party; separate the components of the Services except as agreed in writing by the parties; remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear with use or delivery of the Services; reverse engineer, decompile, or disassemble the Services; or use any of the Services for a purpose for which it is not intended. By way of example only, and without limiting the foregoing, Dorabase’s caching service is intended for and shall be used by Customer solely for cacheable content. For purposes of this Subsection, Dorabase Technology shall mean Dorabase’s proprietary technology, know-how and concepts including patented and unpatented proprietary technology, architecture, software programs, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world and also includes any derivatives, improvements, enhancements or extensions of Dorabase technology conceived, reduced to practice, or developed during the Term.
5.2. Customer hereby grants to Dorabase a non-exclusive, royalty-free license, during the Term, to use Customer Technology solely for the purposes of providing the Services. Dorabase shall have no other right to use Customer Technology for any other purpose other than providing the Services. Customer grants to Dorabase the right to use information derived from the performance of Services to improve the Services in a manner consistent with and without violating the terms as specified in Section 6. For purposes of this Subsection, Customer Technology shall mean Customer’s proprietary technology, know-how and concepts including patented and unpatented proprietary technology, architecture, software programs, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world and also includes any derivatives, improvements, enhancements or extensions of Customer’s technology conceived, reduced to practice, or developed during the Term by Customer.
9.1. Termination Upon Default: Either party may terminate this MSA in the event that the other party is in material default of its obligations under this MSA and such default remains uncured for a period of ninety (90) days following written notice of default. In the event this MSA is terminated as provided in this Subsection 9.1, the non-defaulting party’s sole remedy shall be its election to terminate the MSA without further liability by either party to the other except as otherwise provided elsewhere in this Section
9.9.2. Termination Upon Insolvency: This MSA shall terminate, effective upon delivery of written notice by a party: (i) upon the institution of Insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party.
9.3. Termination Fee: If, during the Initial Term or any Renewal Term, Service is terminated pursuant to an uncured default by Customer in accordance with Subsection 9.1 above, or if Customer cancels the Service for convenience at any time after the Effective Date, Customer agrees to pay to Dorabase: (a) all unpaid Service fees accrued as of the cancellation date; plus (b) one hundred percent (100%) of monthly recurring charges remaining in the Term for up to twenty four (24) months; and fifty percent (50%) of monthly recurring charges for months remaining in the Term in excess of twenty four (24) months. Customer agrees that termination fees are liquidated damages and represent a reasonable estimate of the damages incurred by Dorabase in the event of termination, and that such amounts do not constitute a penalty.
9.4. Effect Of Termination: The provisions of Sections 4, 7, 9 and 11 and of Subsections 9.1, 9.3, 9.4, 12.4-12.8, and 12.11-12.13 shall survive termination of this MSA. All other rights and obligations of the parties shall cease upon termination of this MSA. The term of any license granted hereunder shall expire upon expiration or termination of this MSA.
Indemnification And Disclaimer Of Warranties:
10.1. Customer Indemnification Obligations: Dorabase does not assume any business and operational risks associated with Customer's business, or any aspects of the operation or contents of Customer's web site(s). Accordingly, Customer shall defend, indemnify, and hold harmless Dorabase and its affiliates, and their respective licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties arising from or connected with any Customer Content, Customer's website(s) (including without limitation any activities or aspects thereof or commerce conducted thereon), or Customer's use of the Services.
10.2 Dorabase Indemnification Obligations: Customer does not assume any business and operational risks associated with Dorabase’s business, or any aspects of the operation of the Dorabase’s Network or provision of Services by Dorabase. Accordingly, Dorabase shall defend, indemnify, and hold harmless Customer and its affiliates, and their respective licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties arising from or in connection with the operation of Dorabase or Dorabase’s provision of Services, including any claim of infringement or other violation of any third party intellectual property right, except to the extent such claims arise from or in connection with any act or omission of Customer or any of the other indemnitees set forth in this Subsection 9.2 that is a breach of any provision of this MSA, unlawful, an intentional wrong or contrary to Dorabase’s documentation, written directions or policies.
10.3 Confidentions To Indemnity: To receive the foregoing indemnities: (a) the party seeking indemnification (the “indemnified party”) must promptly notify the other party in writing of the suit, claim or proceeding or a threat of suit, claim or proceeding (collectively, a “Claim”) (provided that any failure to give such notice will not waive any indemnification rights of the indemnified party except to the extent that the rights or defenses of the indemnifying party with respect to the Claim are actually prejudiced thereby); (b) the indemnified party shall provide reasonable assistance for the defense of the Claim; and (c) the indemnifying party has sole control of the defense of any Claim and all negotiations for settlement or compromise (provided that (i) the indemnified party will be permitted to employ counsel and join in the defense of the Claim at its own expense and (ii) the indemnifying party may not agree to any settlement of the Claim that would adversely affect the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld).
Limitations Of Liability and Damages:
11.1. Limitations Of Liability: Dorabase’s liability for all claims arising out of this MSA, whether in contract, tort or otherwise, shall be limited to the amount of fees paid by customer to Dorabase under this MSA During the preceding three (3) months.
11.2. Limitations Of Damages: In no event shall either party be liable to the other or any third party, any loss of data, loss of business profits, business ınterruption, or other special, incidental, consequential or indirect damages arising from or in relation to this MSA or the use of the services, however caused and regardless of theory of liability. This limitation will apply even if such party has been advised or is aware of the possibility of such damages.
12.1. Independent Contractor: The relationship of Dorabase Customer established by this MSA is that of independent contractors, and nothing contained in this MSA shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
12.2. Notices: Any notice required or permitted hereunder shall be in writing and shall be delivered as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. All notices must be sent to the contact person for notices at the address listed on the Service Order Form.
12.3. Assignment: Customer may not, without the prior written consent of Dorabase, assign this MSA, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this MSA and shall be void. Dorabase’s rights and obligations, in whole or in part, under this MSA may be assigned or transferred by Dorabase.
12.4. Third Party Beneficiaries: This MSA is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
12.5. Governing Law: This MSA shall be interpreted according to the laws of Turkey without regard to or application of choice-of-law rules or principles. All disputes arising under this Agreement shall be brought in the Superior Court of Istanbul Anatolian Courthouse in Istanbul Turkey, as permitted by law. Each party consents to exclusive personal jurisdiction in such courts.
12.6. Entire Agreement and Waiver: This MSA and any Service Order Form hereto shall constitute the entire agreement between Dorabase and Customer with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby, including without limitation any non-disclosure agreement previously executed between the parties. The terms of this MSA shall control in the event of any inconsistency with the terms of any Service Order Form. This MSA may be changed only by written agreement signed by both Dorabase and Customer. No failure of either party to exercise or enforce any of its rights under this MSA shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.
12.7. Severability: In the event any provision of this MSA is held by a court of other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this MSA will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this MSA, they begin negotiations for a suitable replacement provision.
12.8. Non-Disclosure of Service Order Form: Neither party shall disclose to third parties, other than its agents and representatives on a need-to-know basis, any Service Order Form herein without the prior written consent of the other party, except either party shall be entitled to disclose such terms to the extent required by law.
12.9. Force Majeure: If either party is prevented from performing any of its obligations under this MSA due to any cause beyond the party's reasonable control, including, without limitation, an act of God, earthquake, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers (a "force majeure event") the time for that party's performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Customer will not be excused from the payment of any sums of money owed by Customer to Dorabase including amounts owed for termination of the MSA under Subsection 8.3; and provided further, however, that if a party suffering a force majeure event is unable to cure that event within thirty (30) days, the other party may terminate this MSA.
12.10. Counterparts: This MSA or any related Service Order Form may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which shall constitute one and the same agreement.
12.11. Construction: This MSA shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
12.12. Remedies: Except as provided herein, the rights and remedies of the parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
12.13. Binding Effect: This MSA shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors-in-interest, legal representatives, heirs and assigns.