Terms and Conditions
These terms and conditions of Services shall apply to all offers, legal relationships and agreements under which Simternet provides services.
Agreement: The agreement with respect to the Services between Simternet and Customer, including these Terms and Conditions and all other annexes or exhibits;
Simternet: Simternet, with corporate domicile in the TR, at İTÜ Ayazağa Kampüsü, ARI 1 Teknokent, No: 8, Maslak/İstanbul
Errors: a substantial failure to meet the functional specifications expressly agreed upon in the Agreement.
Maintenance Release: a periodic release of the Software provided by Simternet at its sole discretion, which incorporates problem resolutions and which will usually not contain functional enhancements;
Services: any and all services specified in the Agreement, including but not limited to development, installation, consulting or maintenance and support services;
Software: the software of Simternet specified in the Agreement and provided to Customer pursuant to another agreement between Simternet and the Customer;
Upgrade: a new version of the Software by Simternet at its sole discretion, which may contain new features or functional changes to the Software.
Performance of the Services
Subject to the terms and conditions of the Agreement and in consideration of the payment of all applicable fees, Simternet will, to the best of its ability, do its utmost to perform the Services with due care and in accordance with the Agreement. The Services shall be performed on the basis of a best efforts obligation, unless and insofar as Simternet has expressly promised a result in the written Agreement and the result concerned has also been described with sufficient definiteness. Any agreements concerning a service level must always be expressly agreed in writing.
If the Services are provided in stages, Simternet shall be entitled to postpone the start of the Services which are part of a stage until Customer has approved the results of the preceding stage in writing.
In the event that employees of Simternet perform work on the premises of Customer, Customer shall provide appropriate working conditions, access to all necessary facilities including but not limited to computer and telecommunication facilities and qualified personnel as may be reasonably requested by Simternet. All facilities shall comply with all applicable statutory and other requirements and provisions concerning working conditions. Customer shall notify the employees deployed by Simternet of any applicable company rules or security rules prior to the commencement of the activities. Customer shall indemnify Simternet against claims by third parties, including the Simternet’s employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by Customer or of unsafe situations in its organization.
All delivery and other terms stated in the Agreement only serve as guidelines. Simternet will use its best effort to observe the agreed delivery and other periods, however these (delivery) periods are never fatal, unless explicitly stated otherwise. Unless explicitly otherwise agreed upon in Agreement, the amount of Services and hours stated in the Agreement serve only as an estimation of the total amount of time needed for the project. Simternet will always charge the Customer for the actual Services provided.
Simternet is entitled to sub-contract any part of its obligations with respect to the Services to a third party, for example a local partner, without the prior written consent of Customer.
Additional work and modification of the Services
In performing the Services, Simternet shall only be obliged to follow timely, reasonable and sensible instructions of Customer if this has been expressly agreed in writing. Simternet shall not be required to follow instructions which change or supplement the substance or scope of the agreed Services. If such instructions are being followed, however, the work in question shall be compensated pursuant to article 3.2
If, at the request of or with prior consent from Customer, Simternet has performed work or rendered other performance which goes beyond the substance or scope of the Services, the Customer shall pay for that work or performance according to the Simternet’s usual rates. Expanding or modifying a system analysis, a design or specifications shall also constitute additional work. Simternet shall never be obliged to satisfy such a request, and it may require that a separate purchase order has to be concluded. Upon request, Simternet shall inform Customer in writing in advance about the financial consequences of the extra work or performance.
Customer accepts that work or performance as referred to in article 3.2 may affect the agreed or expected time of completion of the Services and the mutual responsibilities of Simternet and Customer. The fact that additional work (or the demand for it) arises during execution of the Agreement shall never be a ground for Customer to rescind or terminate the Agreement.
Simternet guarantees that all personnel engaged by it in the performance of the Services shall have the required level of skill and expertise as can reasonably be expected by Customer. Simternet may constitute or modify the team that carries out the Services in accordance with its own insights. Customer may not stipulate particular Simternet staff-members.
Simternet has the right to use third parties in the execution of the Agreement without prior consent of Customer. All personnel of third parties used in connection with the Agreement, will be considered personnel of Simternet in the context of the Agreement. Simternet will impose the terms of the Agreement to these third parties and will see to it that they will fulfill the obligation inserted herein.
Maintenance and Support
The maintenance and support services consist of the repair of Errors or taking such measures, including but not limited to the replacement of Software or installing temporarily solutions such as a work-around, bypass or problem preventing restrictions, that the Customer continue to use the functionality of the Software. Simternet does not guarantee that the Software will work without Errors or that Errors will be improved. Simternet will support only the current and previous release of the Software starting with the version agreed upon in writing.
After the receipt of a written notice of an Error, Simternet shall use its best effort to correct the Error or make corrections in any later Maintenance Release. Simternet will make the results available to Customer in a manner, place and at a time to be determined by Simternet. Simternet’s obligations with respect to the correction of Errors, are conditional upon the Error being reproducible. Customer therefore uses its best endeavours to provide a full description of the Error and any other such information or document which facilitates Simternet in reproducing the occurred error and solving the Software Problem. The Customer shall use best endeavours to analyse the cause of the Error.
Simternet maintenance and support obligations under the Agreement shall cease if the non-operation of the Software has been caused by any factor outside the control of Simternet, including but not limited to (i) any problems caused by reparation, modification, configuration, reinstallation or relocation of the Software not authorized and/or performed by Simternet; (ii) any problem with the functioning or the use of the external system or software or the hardware configuration, including without limitation the operating system and/or hardware upgrades; (iii) the operation or use of the Software in a way that is not accordance with the latest release of the relevant documentation; (iv) support related to third party software or hardware not supplied by Simternet; or (v) abuse, misuse or mishandling of the Software.
Change requests do not fall under the scope of the maintenance and support services.
If agreed upon in the Agreement, Customer will receive at no additional cost one copy of each Maintenance Release or Upgrade issued by Simternet during the term of the maintenance and support part of the Agreement. The Maintenance Release and Upgrade shall be delivered to Customer on the media and in the format to be decided by Simternet. Customer agrees to incorporate said Maintenance Release or Upgrade only into the installed Software provided it first passes Customer’s acceptance tests. The Maintenance Releases and Upgrade shall be considered part of the Software and, accordingly, covered by the scope of the EULA.
At all times, Customer is personally responsible for making and keeping back-ups of the configuration and the data. Reconfiguration existing sets of data or defining new sets of data is not part of the maintenance and support service, unless explicitly agreed upon in writing.
Should the Software or Product not be operable due to reasons outside the control of Simternet, Customer shall be liable to pay Simternet in accordance with then valid hourly rates. Simternet shall, however, be under no obligation to provide services when the Software is not operable due to reasons outside its control.
Cooperation of Customer
On request of Simternet, Customer shall furnish Simternet with all data, information, hardware, facilities, and materials that are reasonably necessary to execute the Agreement properly, provide access to the relevant software, system or other accounts and provide all other reasonable full cooperation. If Customer utilizes its own employees in cooperating in the execution of the Agreement, these employees shall possess the necessary know-how, experience, training and abilities.
If Customer does not provide Simternet with the requested data, equipment, software, materials or other cooperation necessary to execute the Agreement, or does not provide this in a timely manner or in accordance with the agreements made, or if Customer otherwise does not fulfil its obligations under the Agreement, Simternet shall be entitled to suspend execution of the Agreement in whole or in part, and it shall be entitled to charge the ensuing expenses in accordance with its usual rates, all of this without prejudice to Simternet’s right to exercise any other legal right.
If and in so far Customer provide Simternet with personal data, it guarantees that with regard to such personal data, all applicable regulations for the protection of privacy have been observed and that Simternet is entitled to process such personal data. Customer indemnifies Simternet against any third parties’ claims in this respect. Simternet will ensure that it on its own side will also strictly observe all applicable privacy regulations.
In the event that employees of Simternet perform work on the premises of Customer, Customer shall provide appropriate working conditions, access to all necessary facilities including but not limited to computer and telecommunication facilities and qualified personnel as may be reasonably requested by Simternet. All facilities shall comply with all applicable statutory and other requirements and provisions concerning working conditions. The Customer shall indemnify Simternet against claims by third parties, including the Simternet’s employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by the Customer or of unsafe situations in its organization.
Orders, fees and payment
All fees are exclusive taxes (VAT) and other levies imposed by the government. The fees are exclusive travel or living expenses or other external costs made by Simternet in the course of carrying out the Services. These expenses and costs shall be charged separately.
Simternet is entitled to request Customer to make an advance payment. This advance payment will be set off against the actual invoice(s).
Intellectual property rights
All Intellectual Property Rights with regard to the Software and/or Services, including all documentation, information and any other materials developed and provided by Simternet under the Agreement (such as analyses and designs), as well as preparatory materials in that regard shall be held solely by Simternet or its licensors. Customer shall only acquire the rights of use expressly granted in the Agreement and by law. Any other or more extensive right of Customer shall be excluded.
Customer will not be entitled to use the trademarks, brand names, logos, trade names, designs or know-how, or any other distinctive sign of Simternet, without its prior written consent.
Confidentiality and data protection
Parties warrant that all of the information received by them which is known to be or should be known to be confidential in nature shall remain secret and shall not be disclosed, unless a legal obligation mandates disclosure of that information. Information with a confidential nature includes, but is not limited to, information with respect to the object and source code, other technical information, errors, defects, methods and procedures necessary for the use of the Software, commercial information and the content of the Agreement. Parties shall only use the information for the purpose for which it has been provided. Information shall in any event be considered confidential if it is designated by a Party as such. The duty of confidentiality shall not apply to information which is already in the public domain at the time of disclosure.
Parties will give notice of the commitments deriving from this article to all employees that have access to any confidential information from the other Party, demanding full compliance with the obligation inserted in this Section. Parties will notify the other Party of any unauthorised use of the confidential information that it has had knowledge of by any means.
In the event that a party process personal data, it will process such data of a personal nature in a confidential manner, appropriately complying at all times with the applicable provisions concerning the protection of personal data.
Term and termination
The Agreement will be valid for the initial term agreed upon in the Agreement. Following the expiration of this initial term, the Agreement shall be automatically renewed for consecutive one-year periods, unless either party notifies the other in writing at least three months prior to the expiration of the initial term or then-current renewal term of its intent not to renew the Agreement.
Notwithstanding the term agreed upon in the Agreement, Simternet shall be entitled to terminate the Agreement at any time without liability to the Customer, if the Customer: (i) commits a breach of any of the terms of the Agreement (and if such breach is remediable) fails to remedy that breach within 15 (fifteen) days of the Customer being notified in writing of the breach; (ii) applies for a moratorium of payments, is declared bankrupt or otherwise ceases to meet its (financial) obligations; or (iii) suspends or discontinues its business activities.
The Agreement constitutes the full agreement between the parties with respect to the use and license of the Software and it replaces any prior agreements concerning the subject hereof. The Agreement can only be modified by means of a written agreement signed by the Parties.
Customer is not entitled to assign or otherwise transfer any rights or obligations under the Agreement, without the prior written consent of Simternet. Simternet shall be entitled to assign or otherwise transfer its rights and obligations under the Agreement without requiring the consent of Customer.
Simternet retains the right to disclose the identity of any Customer on its website or in any sales or funding efforts or processes of Simternet, however, always with due consideration to the interests of the Customer.