Subject Matter of the Agreement

Headquartered in İstanbul, Turkey, Faz3 Software Information Technologies Inc. (“Faz3”) provides cloud server-based SaaS (“Faz3 Cloud”) solutions as part of internet-accessible managed data transmission and exchange systems enabled through existing MQTT protocol and REST API links among several devices (IoT, Internet of Things) for enterprise and individual clients (hereafter referred to as “Client(s)”). The service purchased by the Client covers the provision of the Faz3 functions and performance as a SaaS-based solution during the rental period in accordance with the Faz3 SaaS Terms (hereafter referred to as “SaaS Terms”).

Faz3 and the Client (each “a Party” and collectively “the Parties”) are companies that operate independently of each other. Neither Party will be deemed to be a legal representative of the other nor have any right to give instructions to the other party’s employees.

1. Section General Provisions

 

1.1 Definitions

Faz3-Software is standard software owned by Faz3, and as documented in the Product Information, the Software enables data transmission and exchange among several devices through existing connections.

SaaS Framework Agreement allows the Client to subscribe to Faz3 Subscription Packages and certain features. Pursuant to SaaS Terms, which is an integral part of this Agreement, it forms a legally binding contract between Faz3 and the Client regarding the special projects of Faz3 Partners and the enterprise clients once the Client registers to the Faz3’s Client Portal.

Subscription Features: The Client can access the information regarding Faz3 Software functions (provided to the Client under “Subscription Features”) and features that the Clients can reserve upon completing Faz3 Subscriptions through these portals: https://app.faz3.io/viewPlan/ and https://app.faz3.io/admin/.

As stated in Subscription Features, Faz3 Subscription Package covers a set of Faz3 Software functionality, including a selected number of devices and technical performance values required for them, reserved following the completion of the Client’s Faz3 Subscription.

The Features refer to the applications that are bundled with additional features under Faz3 Subscription Packages. The Features will be provided by Faz3 under SaaS Services, and can be reserved by the Clients in connection with a specific Faz3 Subscription Package.

SaaS Services cover the provision of reserved (i) Faz3 Subscription Packages and Features and, (ii) the managed services, including support and update services, as SaaS-based solutions under SaaS Terms and applicable Subscription Features after the Client completes Faz3 Subscriptions.

Faz3 Subscription is a signed agreement between Faz3 and the Client for the provision of the reserved specific SaaS Services in accordance with SaaS Framework Agreement. These SaaS Terms apply to all Faz3 Subscriptions.

The Client Portal is the secure Faz3 Cloud domain, which allows the Client to reserve Faz3 Subscriptions and access to SaaS Services.

Text Format: Within the framework of SaaS Terms, the Text Format will be electronic communication via e-mail.

2.1 Registration, Termination of SaaS Framework Agreement

This will be conducted between Faz3 and the Client once the SaaS Framework Agreement registration procedure is completed as follows:

1) By signing up the Portal, The Client agrees to be an entrepreneur as outlined in Turkish Commercial Code (TCC), and agrees that the registration procedure will be conducted with the specified capacity. Notwithstanding the other rights of Faz3, the violation of relevant term grants Faz3 the right to immediately terminate SaaS Framework Agreement and all Subscriptions for a valid reason.

2) Only an authorized person or an agency representing the Client can perform the registration procedure.

3) The Client will provide all the information required for the registration procedure accurately.

4) By clicking “Sign Up” button, the client agrees to accept the SaaS Framework Agreement in accordance with SaaS Terms. This also means the acceptance of the usages and rules specified by Faz3 under SaaS Framework Agreement as noted below. The Client does not have the right to request the termination of SaaS Framework Agreement.

5) Sign up information required to complete the registration procedure will be provided after Faz3 grants the Client access to Client Portal.

6) There is no cost for the execution of SaaS Framework Agreement. The reservation of the Subscriptions requiring payment will be handled on a case-by-case basis according to the Article 3 specified below.

3.1 The Subject of The SaaS Terms

1) The subject of the SaaS Terms covers the following:

1. a) Execution and Enforcement of Faz3 Subscriptions between the Parties, including SaaS Services (SaaS Terms Section 2)
2. b) The provision of the Services in accordance with Faz3 Subscriptions (SaaS Terms Section 3).

2) The subject of the SAAS Terms does not cover:

1. a) Granting the intellectual property (IP) right to Faz3 Software;
2. b) Customization and configuration services for Faz3 Software;
3. c) Education and Communication services.

4.1 Contract Duration, Termination

1) SaaS Framework Agreement is valid for the duration that the Client specifies during Signup procedure, except where expressly stated otherwise, and cannot be terminated by the Parties.

2) The Parties do not have the right to terminate the Agreement unless there is a force majeure or a valid reason.  The Faz3 has the valid reason to terminate the Agreement if the Client (i) is unable to pay the due payments more than 7 (seven) days despite the reminders or (ii) violates the obligations specified under Section 11 (2).

3) The termination notice should be provided in written Text Format. The Client can submit the termination notification via email to [email protected].

4) Following the termination of this SaaS Framework Agreement, all the active Faz3 Subscriptions will be ended immediately.

5.1 The Coverage of SaaS Services, Data Storage

1) During Faz3 Subscription, subscribed SaaS Services and Subscription Features are provided to the Client under the SaaS Terms. The Client cannot request any differential advanced or improved functionality from Faz3. The features specified in the presentations, Faz3 press releases, the advertisements or other guarantees and warranties provided by Faz3 employees should not be deemed as guaranteed or secured since Faz3 does not guarantee to provide any additional Faz3 features unless expressly authorized in writing to he Client during SaaS Framework Agreement or any Faz3 Subscription.

2) SaaS Services do not guarantee the continual retention of any data related to the active devices. The data will be specifically stored to pre-buffer during the data transmission, and will not be backed up continually in any format. There is no technical method that enables access to all the past data at the Client’s request.

3) Faz3 does not guarantee the legal responsibilities or the actual usage of Faz3 IoT, Faz3 Software or SaaS Services in the intended area of use by the Client. The Client is the sole responsible party for fully complying with all the relevant laws and collecting any consents or documents required by law. This does not have any effect on the obligation of Faz3 to comply with applicable data protection laws.

6.1 Faz3’s Software Ownership

1) As a condition of accessing the Client Portal and provision of SaaS Services, the Client agrees and warrants that Faz3 retains its copyrights, property rights, know-how, and specialization as well as its rights of trade secrets, patent rights and design rights related to all the versions of Faz3 IoT and Faz3 Software (hereafter referred to as “IP” as a reference to intellectual property rights collectively), and the Client cannot claim any right or interest related to any IP unless expressly provided by Faz3.

2) The SaaS Terms, Subscriptions Features or anything covered under Faz3 Subscription cannot forfeit or limit Faz3’s rights to apply any remedy or legal grounds in order to protect its intellectual property rights related to Faz3 Software. The Client agrees that Faz3 Software includes certain trade secrets and proprietary information of Faz3 and its licensed users, and that Faz3 retains its right to apply injunctive reliefs which will be deemed appropriate by a competent court in case of a threat against the privacy or an actual unauthorized disclosure of this information.

2. Section Faz3 Subscriptions

2.1 Discontinuation and Termination of Faz3 Subscriptions

The Client can sign up for one of Faz3 Subscription Packages and Features listed in an applicable Subscription Features in Faz3 Cloud, and subscribe to the related SaaS Services by choosing a Faz3 Subscription. The following conditions apply:

1) Subscription Features defines the scope of each Faz3 Subscription Package and Features that the Client can use upon signing up for Faz3 Subscription and completing the payments. In the event of any conflict, the Subscription Features will supersede. The Client cannot ask for the cancellation or any refund of fee for certain Faz3 Subscriptions. The Services may be terminated only on valid ground. However, the Client must notify Faz3 a month earlier.

2) After a Party notifies the termination of SaaS Framework Agreement, it will not be possible to maintain service continuity of Faz3 Subscriptions within the Platform.

2.2 Charges and Payments

1) The fees of each Faz3 Subscription (hereafter referred to as “Subscription Fees”) are calculated based on packages, and the fee paid for the reserved Faz3 Subscription Package covers the Subscription Features.

2) All the fees included in the invoice also include the current value added tax if applicable.

3) The Subscription Fees will be charged during registration through payment methods specified by Faz3.

4) If the Client subscribing to a postpaid plan based on a project do not pay the fees on a timely basis, Faz3 will send a notification to the Client in Text Format. If the Client is not able to complete the payment in 5 (five) days after the payment notice is submitted and received by the Client, late payments from the due date until the date of actual payment may bear interest at the rate of 12% annually (or the highest rate permitted by law, if less), which will be decided on MCLab’s sole discretion. Moreover, in case the Client fails to pay the bill in 5 (five) days upon receiving the late payment notification, Faz3 has the right to discontinue all SaaS Services provided under Faz3 Subscription(s). Faz3’s rights shall survive termination.

2.3 Fee Adjustments

Faz3 has the right to adjust the current Subscription Fees listed in the Subscription Features considering its own costs. The discounts or increases regarding the Subscription fees are subject to the following provisions:

1) The discounts or increases regarding Faz3 Subscription fees are not reflected to the pre-determined subscriptions.

2) The terms related to the discounts or increases regarding the subscription fees also apply to the project-based subscriptions.

3) Faz3 has the right to organize campaigns for a specific period of time. These campaigns do not apply to the subscriptions of which the terms are pre-determined.

2.4 Free Trials

1) The Clients can sign up for a free trial of Faz3 Subscription Package. The free trial period that the Client can sign up will be noted in the portal page: https://faz3.io/viewPlan. The free trial is intended to let the new and some previous users to try Faz3 Subscription Packages and their features.

2) The eligibility for free trial is decided upon Faz3’s sole discretion, and Faz3 can require certain eligibility conditions or limit the trial period in order to prevent any misuse. If you are deemed ineligible for a free trial, Faz3 reserves the right to cancel the trial, discontinue the Subscription Package or the Features, and suspend your account.

3) The Client can sign up only for 1 (one) Faz3 Starter Package during the free trial period. The Client can find the features of the Free Trial Subscription Package at https://faz3.io/viewPlan.

4) When the free trial period ends, the Free Trial Package will be deactivated automatically.

2.5 Customer Obligations, Technical Requirements

The Client is obliged to provide the required accurate information during the sign up process for the subscription. In the event that the provided information changes, it should be updated regularly on the Client Portal. Moreover, the Client should keep the login information for the Client Portal private and take the most advanced precautions to prevent unauthorized access. If the Client realizes or suspects that the security of its login information is compromised or the Client Portal is accessed for abusive activity, it should notify Faz3 straight away.

2) The Client cannot take any action that might harm the software or hardware of Faz3 or that violate the applicable laws. In addition, the Client does not have any right to use SaaS Services for any illegal activities or the violation of the third parties’ rights.

3) The Client is accountable for Faz3 for the activities of any users, whom it shares the login information of the Client Portal or grants access to the Client Portal, and gives permission to use SaaS Services. If these users violate the Client’s obligations under SaaS Terms, the Client will be held accountable.

4) The Client understands and agrees that it should have specific technical resources to use SaaS Services, and benefit from the third party services, such as a stable internet connection and the correct coding of the devices and the clients. The protocol and method standards required for the connection with the infrastructure of Faz3 SaaS are explained at the website: https://www.faz3.io.

2.6 The Rights of Faz3 In Case The Client Violates His/Her Obligations, Indemnification

1) Regardless of any other rights of the Client, Faz3 can block the Client’s Portal and suspend its SaaS Services;

1. a) If the Client does not comply with the Subscription terms, Faz3 has the right to terminate the Client’s Faz3 Subscription or this SaaS Framework Agreement immediately;
2. b) If the Client is unable to complete payment past due more than 7 (seven) days despite the reminders;
3. c) If the Client violates one or more obligations specified under Article 10 (1) or (2);
4. d) If unauthorized third parties access the Client Portal apart from the cases when it is through the fault Faz3.

The Client Portal and SaaS Services will be discontinued until the reason for the deactivation is eliminated. The Client cannot make any claims from Faz3 due to any issues related to the discontinuation of the Services indicated in these Articles.

2) The Client agrees that s/he will be held accountable to compensate and indemnify Faz3 for all the rights and harms claimed by the third parties and all the legal consequences, which arise from the violations of the Article 10 (1) or/and (2) of SaaS Terms. The Client also has to compensate for all the expenses arising from Faz3’s legal defenses (including the incurred costs and attorneys’ fees, at a reasonable rate). If the Client realizes a risk that might require a claim of indemnity, it should notify Faz3 immediately. The Client has to indemnify Faz3 for all the payment obligations arising from settlements with the third parties.

3) Incase the third parties file a counter-claim against Faz3, the Client should provide Faz3 all the required information accurately and comprehensively in accordance with the indemnity or defense upon receiving the first claim.

4) Faz3 reserves the right to claim a right and file counter-claim against the Client.

2.7 Defects, Cooperation with the Client

Faz3 guarantees to continue all the SaaS Services indicated in the agreement as long as the following Subscription terms are complied.

1) Faz3 eliminates all the defects arising from the faulty quality of SaaS Services within a reasonable amount of time. If SaaS Services do not meet the promised quality indicated in Subscription Features, this will be counted as missing service defect.

2) If there are defects in SaaS Services, the Client should inform Faz3 immediately with all the required technical information so that Faz3 can identify the “hard-fail” and its effects.

3) If the Client follows the following procedures, Faz3 will indemnify the Client against any loses, damages, expenses and costs (including legal fees) claimed by the third parties with up to 75% of the subscription fee if there is a defect in the Services that are guaranteed under Article 13 due to a violation on the part of Faz3:

1. a) In seven (7) days after the notice for the claim is received by the Client, Faz3 should be notified in writing (if a response is required in a shorter time pursuant to the framework indicated by a court or law, Faz3 should be informed earlier);
2. b) Incase Faz3 requests and it is allowed by the applicable law, Faz3 will be granted the sole control of the negotiations related to defense and settlement;
3. c) All the information, delegations, reasonable support that MCLab might need for counter-defense and resolving the disputes should be provided to MCLab.

Unless expressly agreed by Faz3 in written form, Faz3 shall not be liable to indemnification for any settlement or a fee related claim. The restrictions for responsibilities of Faz3 indicated in Article 16 also apply to this indemnification obligation.

3. Section Managed Services

3.1 Updates

1) Faz3 is committed to continue improving SaaS Services in order to provide better experience to its Clients. And that is why Faz3 reserves its right to extend the Client Portal, Faz3 Software and Features gradually in its sole discretion. For some examples for the extensions, Faz3 can change the interface of the Client Portal or make adjustments such as editing, bundling or discontinuing Faz3 Software and the functions of its Extensions or alter the other features of SaaS Services (referred to as “Updates” collectively). The Client cannot claim any rights for the current usage related to a specific version of the Updates or the Client Portal, Faz3 Software or Extensions. The Client cannot make any claims against Faz3 related to the performance of the SaaS Services unless (i) any reserved function that is guaranteed under the contract of service pursuant to the Subscription Features stops working as expected or is impaired after the Updates and (ii) the updated SaaS Services cause harm to the Client due to an unacceptable disadvantage.

2) Faz3 has sole discretion as to the improvement and rollout of the Updates. The Client cannot request a rollout for a set of specific Updates.

4. Section Joint Principles

4.1 Advertising as a Reference

The Client grants Faz3 a license to reference its trade names, trademarks, service marks, logos, domain names, and unique brand features for use in connection with the advertisement and promotion of Faz3 Software in presentations, advertising materials, customer materials, financial reports and websites (including the Client’s website links) under this SaaS Framework Agreement. The Client can opt out of granting the aforementioned license with a written notice to Faz3 in 5 (five) days after the SaaS Framework Agreement takes effect or can request a separate agreement from Faz3. In case the Client forbids Faz3 from advertising before the contract of this SaaS Framework Agreement, this regulation will be interpreted as the cancellation of this ban.

4.2 Data Protection

Under the contract of performance, the Parties must conform to the current data protection laws. The Parties will make agreements related to data protection when required by laws. The enforcement of these agreements constitutes an important agreement provision. Regardless of any other rights, an agreement between Faz3 and the Client must be reached under the scope of data protection law if the Client disagrees with signing a data protection agreement required by law without any legitimate reason.

4.3 General Limitation on Liability

Regardless of any legal basis, Faz3 will be the sole responsible party based on the following regulations.

1) Faz3 will be liable for good will and gross negligence. In case of slight negligence, Faz3 will be held liable only for breaches of monetary contractual obligation related to the fulfillment of a prerequisite for the provision of the Subscription or a requirement the Client trusts that Faz3 will be qualified for (the Main Agreement). In this context, Faz3 will be held accountable only for the foreseeable harms arising from typical reasons as expected by Faz3. This also applies to the loss of profit and uncalculated savings. Faz3 accepts no responsibility for other pecuniary loss. Faz3 will be liable to compensate the aforementioned monetary obligations only at the specified rates in Article 13(3).

2) Faz3 disclaims all liabilities for any loss of life, damage to the body and/or health and this will not be covered under the obligations related to consumer protection laws.

3) In case of there is a force majeure that makes the performance of the contract impossible, Faz3 cannot be held accountable even though these reasons damages the full execution of the contract at a specific level or prevent its execution temporarily. The force majeure reasons include all the events independent of the Parties’ intents or power, such as terror attacks, embargoes, seizures, natural disasters, strikes, or government orders, and serious or unpredictable situations that are not under the responsibility of the Parties’. If these events/situations occur after making the contract, they will be deemed as force majeure reasons.

4) Moreover, Faz3 disclaims all liability for technical malfunctions or degradation of online data transmission that devalue the use of contractual services, for which Faz3 is not responsible. Moreover Faz3 will not be responsible for the failure of the SaaS Services arising from the defects in the programs (e.g. VPN and encryption software), that are not covered under Faz3 Subscription, or malfunctioning of the software applications installed in the devices communicating with Faz3’s software and systems.

5) Faz3 employees, representatives and the remaining staff will not be responsible for any situation that Faz3 is not liable for. This also applies to the limitations.

4.4 Subcontractors

Faz3 can work with subcontractors in order to perform the obligations of the contract. With this, Faz3 will ensure professionalism for employed subcontractors and will always be accountable to the Client for the contractual obligations.

4.5 Granting of Rights, Designation

Neither Faz3 nor the Client can transfer the rights or obligations specified herein without the written approval of the other Party by law or by any other means.

Notwithstanding the foregoing, Faz3 can transfer its rights or obligations under Turkish Commerce Law (TCL) and assign them to a related company because of merging, takeover, restructuring or selling a majority of or certain amount of its assets without the permission of the Client.

4.6 Applicable Law, Jurisdiction

1) This SaaS Framework Agreement and all Faz3 Subscriptions will be subject to The United Nations Convention on Contracts for the International Sale of Goods Act and Turkish Laws.

2) All the conflicts arising from this SaaS Framework Agreement or any other Faz3 Subscription will be subject to the exclusive jurisdiction of the Turkish courts in İstanbul if permitted by law.

4.7 Conflicting Terms

Unless Faz3 accepts the enforceability with an expressly written notice, the Client’s claims arising from the conflicting terms and conditions, the provisions of the SaaS Terms and Subscription Features in this Agreement, or the referenced scope that deviate from the original meaning are rejected explicitly. This is valid even if the Client gives reference to the provisions indicated in other agreements in the correspondences, and Faz3 does not decline them. Without the written approval of Faz3, Faz3 refuses to be included in the agreements including different terms and conditions among the Client and the third parties if there is a reference to Faz3.

4.8 General Provisions

1) This Agreement will take effect when the Client confirms that s/he has read and understood the Agreement by clicking on the box in the page: https://app.faz3.io/signup.

2) The headings and definitions of different sections in the Agreement are for convenience only. This does not restrict, extend or affect the way to interpret these SaaS Terms or to create any other Faz3 Subscription in any way.

3) If one of the Parties is unable to comply with these SaaS Terms or any provisions of the Subscription Features, this should not be seen as preventing the compliance of the same provision other times.

4) All the notifications, requests, claims and other correspondences required or allowed in accordance with these SaaS Terms or other Subscription Features should be in Text Format. The notifications of the Parties will be submitted to the email addresses indicated during the registration procedure.

5) If any individual provision of these SaaS Terms or other Subscription Features partially or fully becomes invalid or inapplicable after this SaaS Framework Agreement or other Faz3 Subscription will not impair the validity of other provisions. Instead, the Parties promise to continue working in line with a new regulation, which will be the substitute of the invalid or inapplicable provision to the extent that it is legally allowed and economically feasible. The same applies if any gap is discovered in these SaaS Terms or Subscription Features.