Terms and Conditions
The terms and conditions contained herein apply to the use of the web site, mobile application and all other software published (“Software”) or hardware products sold (“Products”) by Horizon İleri Endüstri Teknolojileri A.Ş (“Horizon Advanced”). Any terms and conditions on users purchase order (or in any similar document) which are in addition to, or conflict or are inconsistent with these terms are superseded by the terms contained herein.
Horizon Advanced licenses the use of all Software (“License”) according to the terms herein and this License supersedes all prior and contemporaneous agreements, representations, warranties and understandings and contains the entire agreement with regard to the Software between the parties. No failure or delay on the part of either party in exercising any right or remedy under this License shall operate as a waiver of such right or remedy. All Software licensed hereunder are licensed through a Software as a Service licensing model (“SaaS Service”) whereby User is granted the use of Software as per this License subject to advance service payments at monthly or other regular intervals as identified. Horizon Advanced agrees to license the Software to user only upon the condition that the user accepts all of the terms contained in this Terms and Conditions.
Upon User’s Purchase Order, Horizon Advanced shall invoice User and User shall pay for SaaS Service and any other charge bearing items according to the applicable User’s Purchase Order or Statement of Work or other writing subject to User’s Purchase Order. Horizon Advanced agrees to make available to User the support services for the Software included in the SaaS Service price and terms noted in the User’s Purchase Order applicable to this Terms and Conditions, for as long as Horizon Advanced offers SaaS Service for the Software licensed, and for so long as User remains in good standing and compliant with all terms of this Terms and Conditions and all other agreements regulating the relationship between Horizon Advanced and User.
Except for taxes based on Horizon Advanced net income levied in the jurisdiction within which Horizon Advanced is incorporated, User shall bear and pay any applicable duties, import fees, sales, use, excise, value added, withholding from source income tax or other taxes and fees, or amounts levied in lieu of such taxes or fees, now or later imposed under the authority of any national, state or local taxing authority, based on or measured by (i) charges set forth in this Terms and Conditions or User’s Purchase Order, or (ii) upon license of Software to User or (iv) purchase of any Product’s by the User.
Certain portions of the Software may contain source code subject to the terms of public, free and open source licenses (the “Open Source Software”), including, but not limited to, the GNU General Public License and the GNU Lesser General Public License (collectively, the “Open Source Licenses”). The Open Source Licenses are included in the documentation for the Software. To the extent that the terms of this Agreement differ from the Open Source Licenses, these terms are offered by HORIZON ADVANCED alone and not by any other party. Unless expressly addressed in this Agreement, these terms do not replace or alter User’s rights or obligations under the Open Source Licenses with respect to the Open Source Software. Upon request, HORIZON ADVANCED will make available to User the source code for the Open Source Software. The GNU General Public License and the GNU Lesser General Public License can be viewed at http://www.gnu.org/licenses/gpl.html and http://www.gnu.org/licenses/gpl.html, respectively.
Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that User may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties, or obligations of the parties under this Terms and Conditions, regardless of any failure of HORIZON ADVANCED to object to such terms, provisions or conditions. In the event any provision of this Terms and Conditions is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore.
1. License Terms
1.1 Subject to the payment of the fees in the User’s Purchase Order, Horizon Advanced grants to User a nonexclusive, nontransferable right to use the object code form of the Software solely for User internal business purposes. User acknowledges that all Software set forth in the applicable purchase order by the User, (including, for the purposes of licensing, all related documentation and all patches, error corrections, releases, updates, enhancements and revisions) are licensed to User, subject to the terms of this Terms and Conditions. All customization of software performed by Horizon Advanced for the User shall be the exclusive property of Horizon Advanced and shall be licensed under the terms and conditions of this Terms and Conditions.
1.2 Software ordered and delivered are be deemed accepted by User upon the use of Software. Licenses are provided on the bases of feature, number of devices accessed or as shown and described in the applicable purchase order by the User. User hereby agrees that Horizon Advanced shall have reasonable rights to audit User’s Purchased License capacity utilization limits and permits Horizon Advanced’s electronic audit of User’s capacity utilization.
1.3 User is hereby prohibited from copying or translating, modifying or adapting the software or, incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Software. User is not authorized to license others to reproduce any copies of the software, except as expressly provided in this License. User agrees to ensure that all copyright, trademark and other proprietary notices of Horizon Advanced or its Licensors affixed to or displayed on the software will not be removed or modified. User shall not decompile, disassemble or reverse engineer the licensed software or any component thereof.
1.4 The rights and licenses granted to User with respect to any Software furnished by Horizon Advanced may not be sold, licensed, sublicensed, rented, assigned or otherwise transferred to another party without the prior written consent of Horizon Advanced.
Software and Products are warranted to conform to specifications for thirty days upon delivery. Software and Product support beyond these periods is available at additional cost under the terms of Horizon Advanced Maintenance, Support and Services Policy. Software is not warranted to be error free. Horizon Advanced shall incur no liability under this warranty if the end user fails to provide Horizon Advanced with notice of the alleged defect during the applicable Warranty Period. Horizon Advanced shall incur no liability under this warranty if Horizon Advanced’ tests disclose that the alleged defect is due to causes not within Horizon Advanced’ reasonable control, including alteration or abuse of the Software or Products. Horizon Advanced’ liability, and end user's sole and exclusive remedy, shall be limited to the express remedies set forth in this Agreement.
3. Disclaimer of Warranties
HORIZON ADVANCED MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING SOFTWARE OR PRODUCTS. ALL OTHER WARRANTIES AS TO THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.
4. Limitation of Liability
HORIZON ADVANCED SHALL NOT BE RESPONSIBLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR DAMAGES TO BUSINESS OR BUSINESS RELATIONS, WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY EXCLUSIVE REMEDIES.
5. Intellectual Property Rights
Except as described in this License, Horizon Advanced does not grant and User acknowledges that it shall have no right, license or interest in any of the patents, copyrights, trademarks, or trade secrets owned, used or claimed now by Horizon Advanced. All applicable rights to such patents, copyrights, trademarks, and trade secrets are and will remain the exclusive property of Horizon Advanced or its licensors.
6. Patent and Copyright Indemnification
Horizon Advanced agrees to defend, indemnify and hold User harmless from damages based upon claims that the Software or Products as delivered by Horizon Advanced under this License infringe or misappropriate any United States or European Union patent rights, copyrights, trade secrets, or trademarks. Horizon Advanced’ obligation hereunder is predicated upon the User’s prompt notification to Horizon Advanced of any actual or threatened claim, the User’s full cooperation, at Horizon Advanced’ expense, in the defense thereof and the granting to Horizon Advanced of the sole control over the defense or settlement of the claim. In the event that the use or sale of all or any portion of the Software is enjoined, or, in Horizon Advanced’ judgment, may be enjoined, as a result of a suit based on alleged infringement or misappropriation of the third party intellectual property rights, Horizon Advanced agrees to either: (i) procure for User the right to continue to use the Software or Product, or (ii) replace or modify the infringing or misappropriating Software or Product so that it becomes noninfringing. Regardless of any other provisions of this License, this Section shall not apply (i) to any designs, specifications or modifications originating with or requested by User, or (ii) to the combination of any Software or Product with other equipment, software or Software not supplied by Horizon Advanced if such infringement or misappropriation would not have occurred but for such combination, or (iii) User failure to install an update provided at no additional charge, where the update would have avoided the infringement claim. THIS PROVISION STATES HORIZON ADVANCED’S ENTIRE LIABILITY TO USER AND USER’ SOLE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT RIGHTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
Either party may terminate this Agreement by written notice to the other in the event that; insolvency, bankruptcy or receivership proceedings are instituted by or against the other party; the other party makes an assignment for the benefit of creditors; or the other party ceases to conduct business. If User is in breach of this Terms and Conditions, Horizon Advanced, as applicable, shall give User thirty (30) days’ prior written notice to cure such breach and if such breach has not been cured within such thirty (30) day period, then this License shall automatically terminate at the end of said thirty (30) day period without further notice to User. Upon termination of this Terms and Conditions, the license granted to User shall terminate and User shall immediately discontinue use of the software and all copies and documentation thereof and return all copies and documentation to Horizon Advanced.
Neither the rights nor any portion of the rights granted under this License are transferable or assignable without the prior written consent of Horizon Advanced.
9. Governing Law
This Terms and Conditions and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the Republic of Turkey. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Terms and Conditions.