This Device Sale and SDK License Agreement (“Agreement”) has been executed by and between the Parties below:
Sosyal Ağlar Elektronik Ticaret A.Ş.,
Trade Name : Sosyal Ağlar Elektronik Ticaret A.Ş.
Head Office Address : Rüzgarlıbahçe Mah. Kavak Sok. No.31/1 Smart
Trade Directorate and Trade Registry No : Istanbul Chamber of Commerce / 764846
Website Address : www.blesh.com
Phone : 02166804003
The Developer to whom the Blesh iBeacon device is to be sold.
Within the scope of this Agreement Blesh and the Developer shall separately be referred to as “Party” and as “Parties” collectively.
2. Subject of the Agreement
The subject of this Agreement shall consist of the determination of the rights and obligations of the Parties with regard to the purchase of the Device, which the Application defined below will operate integrated with, by the Developer and use of the software development kit provided to the Developer by Blesh in order to be used in the preparation of the applications that will be developed by the Developer.
3.1 “Device”, shall mean the iBeacon product which operates integrated with the Application via Bluetooth and provided to the Developer within the scope of this Agreement.
3.2 “Developer” shall mean the natural and legal persons who develop the Applications in person or via sub-contractors.
3.3 “SDK” shall mean the software development kit provided to the Developer.
3.4 “Blesh” shall mean Sosyal Ağlar Elektronik Ticaret A.Ş. stated in Article 1.
3.5 “Application” shall mean the location based application developed by the Developer with the SDK provided by Blesh, and operates integrated with the Device.
4. Rights and Obligations of the Parties
4.1 Provided that the amount determined in this Agreement has been paid, Blesh shall deliver the Device to the address notified by the Developer within 30 days following the payment, having the features specified in www.blesh.com and in other technical documents. The Developer shall be responsible for the payment of the carriage costs of the Device.
4.2 The warranty certificates of the Device shall be delivered to the Developer along with the Device and the worldwide valid warranty period of 1 (one) year shall be initiated as of the delivery date. All the technical support/maintenance/repairs for the breakdown that occur in the warranty period shall be provided by Blesh.
4.3 Blesh shall only be responsible for the defects existing at the time of the sale of the Device; and shall not be responsible for defects arising from the factors such as normal wear and tear, intended damage, omission, non-compliance with the Device instructions, misuse or user error, change or restoration of the Device without the consent of Blesh. The Developer accepts that in case of such situations, the maintenance of the Device shall be out of the warrant scope.
4.4 The Developer accepts, declares and undertakes that they shall exclusively be liable for all the damages arising from the failure to comply with their obligations within this Agreement and its annexes; in the event that failure to comply with their obligations causes damages for Blesh, or damages affecting third parties and any administrative, legal, penal sanctions incurred by Blesh for any reason, the relevant amounts shall be recoursed to them; and they shall pay such amounts with accessories upon first request without any reservations.
5. Rights and Obligations regarding SDK
5.1 The Developer accepts and undertakes that they shall not use the SDK for the scope and purposes other than explicitly stated in this Agreement and that the Application they develop by using the SDK shall be compliant to the purposes in this Agreement and the applicable legislation.
5.2 All liability regarding the scope, context and use of the Application shall exclusively belong to the Developer; and the Developer accepts that they shall be the addressee of all the allegations and claims that may be directed by third persons, including the Application being unlawful and violating the rights of third persons. In the event that Blesh is directed any claims within this scope, any amount paid by Blesh shall be recoursed to the Developer to be paid upon first request.
5.3 With respect to the Application to be provided to the end users, it shall be within the responsibility of the Developer to protect the confidentiality rights of such users and to obtain the consents stipulated by law within this frame in cases where the Application collects, stores or in any other way processes personal data. The Developer shall also be responsible for the fulfillment of all the legal liabilities regarding personal data processing or other actions performed via the Application. In the event that Blesh is directed any claims within this scope, any amount paid by Blesh shall be recoursed to the Developer to be paid upon first request.
The Developer accepts and undertakes that they shall pay an amount of [___] in exchange for the Device and SDK provided within the scope of this Agreement.
7. Limitation of Liability
7.1 Blesh provides the Device and SDK on “as is” basis, and it does not provide any claim or commitment with regard that the Device and SDK is error-free, free from defect, flawless or it completely fulfills the Developer’s personal needs. The Developer accepts that the usage of the Device and SDK shall be in their full responsibility and it shall also be within their responsibility to obtain services with satisfactory quality, performance, accuracy and effort. The Developer shall bear and be responsible for the risk of SDK usage to result in any damage or data loss in any computer system or device. Blesh declares that it shall not provide any implied warranty and any implicit commitments including merchantability, satisfactory quality, fitness for a specific purpose and accuracy.
7.2 Blesh shall be solely liable for the direct damages arising from this Agreement to the extent that the applicable legislation permits. The Developer accepts that they shall not claim anything regarding incidental damages, profit loss and other damages that are private, indirect and not arising directly from a breach of Blesh, and they withdraw such rights in advance. The liability of Blesh within the scope of this Agreement shall be limited to the amount paid by the Developer within the scope of this Agreement in all cases.
8. Duration and Termination of the Agreement
8.1 This Agreement shall enter into force on the date of approval and shall cease to have effect as of the expiration date of the warrant period.
8.2 If either one of the Parties breaches, any of its contractual obligations or and does not cure such breach within 1 (one) week despite receipt of a notice of default, then the notifying Party may terminate this Agreement immediately by way of sending a written notice without being subject to any compensation.
8.3 If one of the Parties voluntarily or involuntarily becomes insolvent or bankrupt, or delays bankruptcy, is subject to the appointment of an administrator and procedures regarding concordat, or actually stops its activities permanently or materially changes its scope of activity, loses all or substantial part of its assets, or ceases the activities of the Page, the counterparty shall terminate the Agreement without any compensation.
9. Intellectual Property Rights
9.1 All monetary, moral and commercial rights of the Device and SDK and the documents provided with the SDK and the authority to exercise such rights shall belong to Blesh, and with the execution of this Agreement Blesh shall grant the Developer a worldwide, indefinite, non-assignable and non-exclusive right of use limited to the purpose of development of the Application. Such right of use granted to the Developerby Blesh shall not be interpreted against Blesh as such right of use restrains Blesh from exercising its all rights especially from granting license to others on all their other rights freely including granting licenses to others.
9.2 The Developer shall not reproduce, distribute, change, derive, reverse engineer, convert to source code, grant access to third persons, lease the SDK and make third parties use in any other manner. SDK shall not be used in a competitive manner against Blesh. The Developer shall not remove or change the signs such as trademarks. that have been placed on the SDK or relevant documentation by Blesh or third persons.
9.3 Without prejudice to the rights of Blesh on SDK, the rights on the Application generated with the use of the SDK shall belong to the Developer, and Blesh shall not claim any rights on the Application or be responsible within this scope.
9.4 None of the provisions in this Agreement shall be interpreted as Blesh granting authority to the Developer in order to use the title, label and other identification marks of Blesh without the written permission of Blesh.
9.5 Blesh may use the name, label and logo of the Developer in the advertising, promotion and marketing campaigns regarding the Device.
Each one of the parties declares and undertakes that it shall consistently keep confidential and safeguard all information which may be obtained in any way within the scope of this Agreement, that it shall not use such information for any purpose other than that set out in the Agreement, that it shall not allow the use of third parties of such information or disclose such information to third parties without the disclosing party’s written consent (excluding the legal obligations), that it shall ensure that its personnel and the persons participate in the performance of services comply with this confidentiality undertaking in this provision and that it shall be jointly and severally liable for any non-compliance of such persons.
The confidentiality clause is an independent undertaking from the Agreement, and shall be in force following the termination of this Agreement for any reason.
11. Force Majeure
Acts of gods, wars, mobilizations, fires, strikes, lockouts, etc., as well as reasons beyond the reasonable control of the Parties, and which were not present or anticipated at the execution of this Agreement, and which prevent either or both of the Parties from partially or fully performing their obligations hereunder on a temporary or permanent basis shall be deemed as force majeure events. The Party faced with a force majeure event shall immediately notify the other Party in writing and the performances of the Parties shall be suspended throughout the period of a force majeure event. The Agreement shall resume following the termination of the force majeure event. If a force majeure event continues for more than thirty (30) days, then the Party whose rights are breached shall have the right to terminate this Agreement.
12. Miscellaneous Provisions
12.1 None of the provisions in this Agreement shall be interpreted as granting exclusivity to the Developer.
12.2 This Agreement shall not be interpreted as establishing a relationship of an agency, representation, etc. The Parties shall not be authorized to make undertakings or to execute agreements on behalf of each other.
12.3 The Parties shall not transfer or assign their rights and obligations arising from this Agreement without prior written consent of the related Party.
12.4 This Agreement shall be subject to Turkish laws and Istanbul Central (Çağlayan) Courts and Execution Offices shall have jurisdiction in all disputes arising from this Agreement.
12.5 The notified addresses of the Parties are their notification addresses, and notifications made to these addresses shall be valid unless any change of address is notified in written form.
12.6 In the event that any non-material provisions of this Agreement are deemed fully or partially invalid, the remaining provisions of the Agreement shall not be affected.
12.7 If the rights defined in this Agreement are not used partially or as a whole or used at a later time, this shall not be interpreted as a waiver from the exercising such rights. Any waiver within the scope of the Agreement shall be valid to the extent that made in written form and signed by the related Party’s authorized representative.