Last Updated: 08 November 2022
This Service Agreement, including any document reference herein, establishes the terms and conditions for those wishing to create an account to the Muyki Platform and receive our services (“Customers”). For our website terms and conditions, please visit the https://muyki.com/terms-of-use
“Account” shall mean an account enabling a customer to access and use the Muyki Platform;
“Agreement” or “Service Agreement” shall mean this agreement including any Schedules, and any amendments to this Agreement from time to time;
“Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. ‘Control’ for the purposes of this definition, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that company, through the ownership or control of securities representing a majority of the voting interests of the subject entity;
“Business Day” means Monday through Friday excluding Muyki’s designated holidays;
“Business Hours” means the hours between 9:00 and 18:00 GMT+3 in a Business Day;
“Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Term Start Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. Muyki may only access or disclose information about Customer, Customer’s account, or Authorized users/end users in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect Muyki, its customers’ or partners’ rights or property, including enforcement of this Agreement or other policies associated with the Software and services; and (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation;
“Customer” shall mean the natural or legal person who has concluded the Agreement with Muyki;
“DPA” means the Data Processing Agreement which governs the processing of personal data;
“Muyki Services” shall mean any services that Muyki provides to the Customer, or has an obligation to provide to the Customer, under this Agreement, including providing access to the Muyki Platform or Muyki API;
“Intellectual Property Rights” shall mean any and all registered and unregistered rights to plans, ideas, designs, or other intangible assets. Such rights are granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, right of publicity, other intellectual property right laws, and all similar or equivalent rights or forms of protection, in any part of the world.;
“Order Form” shall mean the ordering document for Customer’s (or Customer Affiliate’s) purchases of services from Muyki that are executed hereunder from time to time, including any schedules or addenda thereto;
“Parties” shall mean Muyki and Customer;
“Subscription” shall mean the limited license to use and access the the Muyki Platform and Services in line with the Subscription Plan purchased by the Customer;
“Subscription Plan” shall mean a plan selected by the Customer out of the varied types of plans offered by Muyki enabling Customer to enjoy different benefits and/or features in relation to the Muyki Services;
“Term” means the term of this Agreement, commencing and ending in accordance with TERM AND TERMINATION Section.
“User” means an individual who is authorized by the Customer to use the Muyki Services, for whom Customer has purchased a Subscription, and to whom the latter (or, when applicable, us at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Customer’s Affiliates, employees, consultants, contractors and agents, and third parties with which Customer transacts business.
Subject to the terms and conditions of this Agreement, Muyki: will use commercially reasonable efforts to host[1] [2] , operate and maintain the Muyki Services as set forth on the Order Form, which may include the Muyki Platform, the Muyki API, and/or other services offered by Muyki; grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Muyki Services. Any and all rights or licenses granted by Muyki to Customer shall apply to Customer and Customer’s Affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.
Muyki shall: provide the Maintenance Services to Customer during the Term; where practicable give to Customer prior written notice of scheduled Maintenance Services that are likely to affect access to the Muyki Platform or are likely to have a material negative impact upon the Muyki Platform, without prejudice to the Muyki’s other notice obligations under this Agreement; provide to Customer written notice of the application of an upgrade to the Platform; provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in their industry; may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the us under this Agreement is overdue.
Upon execution of an Order Form, Muyki will provide Customer access to its Services following the creation of a unique login and password from Customer in order to access the Muyki Platform. Customer shall be responsible for the acts or omissions of any person who accesses the Muyki Services using logins provided to or created by Customer. Muyki reserves the right to modify or discontinue any part of the Services at any time by giving thirty (30) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Customer may terminate this Agreement upon at least thirty (30) days’ prior written notice to us, and we shall provide Customer with a pro-rated refund of any pre-paid fees for Muyki Services not performed by the effective date of termination.
Muyki shall provide Customer with email support for Customer’s use of the Muyki Services and Platform during its regular business hours. Customer agrees that Muyki shall not be responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware.
Customer agrees to: not use the Muyki Platform in any way that is unlawful, illegal, fraudulent or harmful; or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; not use the Muyki Platform in any way that causes, or may cause, damage to the Muyki Services or the Muyki Platform or impairment of their availability or accessibility; use the Muyki Platform solely for the purposes identified in this Service Agreement and only for proper business purposes in accordance with and as contemplated by this Service Agreement and applicable legislation including laws and regulations respecting data privacy, international communications, and the exporting and importing of data; comply with all technical specifications and with all security and operating guidelines, procedures, and protocols provided to them by Muyki such as guidance pertaining to use of passwords and as set forth in the Order Form or any other relevant document referenced therein. assume all responsibility for the actions of its Users.
All the above shall apply to any Users of the Customer when accessing and using the Muyki Platform and related Services.
Customer shall not, directly or indirectly, i) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software, or the Services, or ii) use the Software or Services in any manner to allow any third party to access or benefit from the functionality of the Software or the Services, or iii) use the Software or the Services for any purpose other than the purpose specified under this Agreement, or iv) allow use of the Software or the Services by anyone other than the permitted Users, or v) use the Software or Services in excess of the limitations of the Subscription Plan purchased by Customer. Customer shall have no rights to the Software other than as specifically granted herein. All rights not specifically and unequivocally granted to Customer are reserved by Muyki.
Upon purchasing the Subscription, Muyki hereby grants you for the term of Subscription, and subject to early termination, a non-exclusive, non-transferable, revocable, non-sub licensable, limited, subscription-based license to access and use the Muyki Platform and Services for your internal business use, subject to the terms of this Agreement and the limitations of your Subscription Plan.
Customer shall pay all fees in advance as specified in the Subscription Plan opted by them. Except as otherwise specified herein or in the Subscription Plan, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
You are responsible for providing complete and accurate billing and contact information to Muyki and notifying Muyki of any changes to such information. The invoiced charges are due immediately from the invoice date. You may be provided with a grace period of up to 14 days from the invoice date at Muyki’s sole discretion.
Any invoiced and/or payable amount will be in US dollar except as otherwise quoted in the Order Form or bill. Fees will be invoiced electronically the last day of each month for monthly subscriptions with exceed amount or in advance for yearly subscriptions with single or multiple payment term. For yearly subscriptions, each exceed usage will be billed monthly in addition to Customer’s yearly subscription fee.
If any invoiced amount is not received by Muyki by the due date and the grace period as mentioned hereinabove, then without limiting our rights or remedies, (a) those charges may accrue late interest as further specified in the Order Form, and/or (b) Muyki may condition future Subscription renewals on payment terms shorter than those specified above.
If any amount owing by Customer under this or any other agreement for our Services is 30 days overdue, Muyki may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Muyki’s Services and Platform access to Customer until such amounts are paid in full.
In the event Customer’s account is forty-five (45) days or more overdue, Muyki reserves the right to terminate this Agreement with prior written notice and any or all outstanding Order Forms and Customer shall not be entitled to a refund of any prepaid fees, but shall remain obligated to pay unpaid fees owed, even if not yet invoiced.
Muyki’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Subscriptions hereunder. If Muyki has the legal obligation to pay or collect Taxes for which Customer is responsible, Muyki will invoice Customer and Customer will pay that amount unless they provide Muyki with a valid tax exemption certificate authorized by the appropriate taxing authority.
Customer agrees that their Subscriptions are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Muyki regarding future functionality or features.
Muyki shall not exercise its rights under the “Overdue Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Muyki to Customer, or from Customer to Muyki.
Subject to the limited rights expressly granted hereunder, we, our Affiliates and our licensors own all rights, titles and interests in and to all copyright, trademark rights, patent rights, design rights and other IP Rights to the Muyki Platform and Services, as well as to any work output and all further developments, updates, upgrades, enhancements, modifications or derivative works which are developed on or out of the Services by any party. No rights are granted to you hereunder other than as expressly set forth herein.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN RESPECT OF THE TWELVE-MONTH TERM IN WHICH THE INCIDENT GIVING RISE TO LIABILITY OCCURRED, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Parties agree to hold all Confidential Information in confidence, and agree to use Confidential Information solely for the purpose of this Service Agreement and not to disclose such Confidential Information, except as expressly permitted in this Service Agreement, to anyone other than their employees, advisors and service providers, with a bona fide need to know, who shall be governed by a parallel confidentiality of equal or greater force. Additionally, each Party agrees to use at least that degree of care which it uses to protect its own information of a similar proprietary nature, but in no event less than reasonable protection. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to: promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose; and cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
Customer warrants to Muyki that it has the legal right to disclose all Personal Data that it does in fact disclose to Muyki under or in connection with this Agreement.
To the extent that Muyki processes Personal Data disclosed by the Customer, Muyki warrants that: it will act only on instructions from the Customer in relation to the processing of that Personal Data; it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data.
Further and more specific agreements between the Customer and the Provider around the processing of Personal Data are arranged in a separate Data Processing Agreement (DPA), which acts as an addendum to these terms.
The parties each separately represents and warrants the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate actions on its behalf, and this Agreement has been duly executed and delivered and is a legal, valid and binding Agreement. you hereby warrant that no data or material you provide for use with or in connection with the Services shall infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy, or violate any applicable law, statute or regulation for its subscription term.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Customer shall indemnify, defend and hold Muyki and our Affiliates and their respective representatives harmless from and against any and all loss, damage, liability, suits, actions, proceedings, demands, damages, judgments, liabilities, claims, and expenses (including, without limitation, reasonable attorneys’ fees, expert fees and court costs and the costs of investigation and defense and settlement awards) (collectively, the “Losses“) relating to, arising from, or in connection with:
Customer’s or Customer’s Affiliates’, or any of their representatives’ performance under this Agreement; the breach or violation by Customer or Customer’s Affiliates, or any of their representatives of any representation, warranty, covenant or obligation under this Agreement; any act or omission by Customer or Customer Affiliates, or its representatives in connection with their actions, omissions, obligations and agreements hereunder; any breach or violation of law.
This Service Agreement commences on the date Customer first accepts it and continues until all Subscriptions hereunder have expired or have been terminated.
Either Party may terminate this Agreement: (i) upon thirty (30) days’ written notice to the other Party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Muyki may terminate this Agreement by giving Customer at least sixty (60) days’ notice in writing.
This Agreement shall be construed and governed in accordance with the laws of Turkey without regard to its conflict of laws principles, and the Parties agree to submit themselves to the exclusive jurisdiction of the competent courts situated in Istanbul, Turkey with any matter arising from or related to this Service Agreement.
The parties agree in good faith to use reasonable efforts to resolve any and all conflicts and controversies between them relating to this Agreement informally and amicably between themselves before submitting any such matter for adjudication.
Both Parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under this Agreement.
Any notice required under this Agreement shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. Any such notice must be given by one of the following methods (using the relevant contact details set out above for Muyki, and using the relevant contact details Customer has provided): delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; sent by recorded signed-for post, in which case the notice shall be deemed to be received 3 Business Days following posting; or sent via electronic mail, providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
These contact details may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.
This Service Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the Parties with respect to the subject matter contained herein. All terms respecting the subject matter of the Terms and contained in purchase orders, invoices, acknowledgments, or other forms exchanged between the Parties will be void and of no effect. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Parties.
Customer shall not assign any of their rights or obligations hereunder, whether by operation of law or otherwise, without prior written intimation to Muyki. Muyki may assign this Agreement in its entirety, without Customer’s consent to our Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other Party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
The Parties acknowledge and agree that the Parties are sophisticated Parties engaging in a fully negotiated commercial transaction with ample review of terms prior to execution. Any dispute term contained in this Agreement will thus not be interpreted against Muyki and the latter will not be accorded Drafter Status with respect to this Agreement or related terms.
Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
No change under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both Parties.
Neither Party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must: promptly notify the other; and inform the other of the period for which it is estimated that such failure or delay will continue.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Should any court of competent jurisdiction declare any term of this Service Agreement void or unenforceable, such declaration shall have no effect on the remaining terms hereof. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision that will implement the commercial purpose of the illegal, invalid or unenforceable provision. In the event that any provision essential to the commercial purpose of this Service Agreement is held to be illegal, invalid or unenforceable and cannot be replaced by a valid provision which will implement the commercial purpose of this Agreement, this Agreement and the rights granted herein shall terminate.