This Navatom Subscription Terms of Service ("Agreement – Terms of Service" ”) is entered into by and between the Navatom entity set forth below ("Navatom") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Navatom pursuant to any Navatom ordering documents, online registration, order descriptions, or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. Incorporated by reference herein, and will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration, or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, "Navatom" is a trademark of Hive Bilisim ve Yazilim A.S., a company duly incorporated and existing under the laws of Turkey, registered in the Istanbul Trade Registry with the registration number 862997 - 0, and address of Ayazaga Mah. Mimar Sinan Sok. No.21 A/7 Sariyer / Istanbul.
Modifications to this Agreement: From time to time, Navatom may modify this Agreement. Unless otherwise specified by Navatom, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. Navatom will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Navatom specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for the use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received.
Trade Secret; It consists of business information and documents belonging to Navatom, the sharing of which Navatom does not consent to. Trade secret includes information about the Services provided by Navatom. By indicating your acceptance of this Agreement or accessing or using any services, you are agreeing to be bound by all terms, conditions, and notices contained or referenced in this Agreement. If you do not agree to this Agreement, please do not use any services. For clarity, each party expressly agrees that this Agreement is legally binding upon it. This Agreement contains mandatory arbitration provisions that require the use of arbitration to resolve disputes. Please read it carefully.
"AUP" means Navatom's Acceptable Use Policy, available at or a successor URL, incorporated into these Terms by this reference.
"Beta Offerings" means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.
"Contractor" means an independent contractor or consultant who is not a competitor of Navatom.
"Customer" means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement which has entered into Order Forms.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded, or imported to the Services by Customer.
"Customer Administration" means Navatom's user interface for accessing and administering the Services that Customer may access via the web or the Navatom Apps.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions, or other Feedback relating to any Navatom product or service. Feedback does not include any Customer Data.
"Intellectual Property Rights" include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any country or other jurisdiction.
"Laws" means all applicable local and international laws, regulations, and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"Order Form" means a written or electronic form to order the Services or an online order completed through Navatom's website. Upon execution by the parties (or, in the case of electronic orders, confirmation, and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.
"Permitted User" means an employee or Contractor of Customer who is authorized to access the Service.
"Special Categories of Personal Data" means any of the following: Special Categories of Personal Data"; data relating to an individual's racial or ethnic origin, political opinions, philosophical beliefs, religion, sect or other beliefs, dress and appearance, memberships to an association, foundation or union, health, sexual life, criminal conviction and security measures, as well as biometric and genetic data.
"Services" means Navatom's proprietary software-as-a-service solution(s), including the Customer Administration, Navatom application programming interfaces (APIs), for example, Navatom Apps, as described in the applicable Order Form.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Navatom.
"Third-Party Platform(s)" means any software, software-as-a-service, data sources, or other products or services not provided by Navatom that are integrated with or otherwise accessible through the Services.
2.1. Services Overview. Navatom's Services means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Navatom. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). Customer will purchase, and Navatom will provide the specific Services as specified in the applicable Order Form.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Order Form Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Navatom's systems, Customer will require that all Permitted Users keep API keys, user ID, and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to enable messaging, chat, and similar functionality and to collect Customer Data for use with the Services.
2.4. Navatom Apps. To the extent, Navatom provides Navatom Apps for use with the Services, subject to all of the terms and conditions of this Agreement, Navatom grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Navatom Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Contractors Customer may permit its employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than the Customer Properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Navatom); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by Navatom" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.7. Navatom APIs. If Navatom makes access to any APIs available as part of the Services, Navatom reserves the right to place limits on access to such APIs (e.g., limits on the number of calls or requests). Further, Navatom may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Navatom believes that Customer's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Navatom).
2.8. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Navatom (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. Navatom has the right to terminate a Trial Subscription at any time for any reason. Notwithstanding anything to the contrary in this Agreement, Navatom will have no warranty, indemnity, support, or other obligations with respect to trial subscriptions.
2.9. Beta Offerings. Customer may choose to use Beta Offerings in its sole discretion. Beta Offerings may not be supported and may be changed at any time without notice. Beta Offerings may not be as reliable or available as the Service. Beta Offerings are not subject to the same security measures as in the Security Policy. Navatom will have no liability arising out of or in connection with Beta Offerings. Customer uses beta offerings at its own risk.
3.1. Data Processing by Navatom. All data processing activities by the Service will be governed by the Personal Data Protection and Processing Policy incorporated by reference herein.
3.2. Rights in Customer Data. As between the parties, Customer will retain all right, titles, and interests (including any and all Intellectual Property Rights) in and to the Customer Data as provided to Navatom. Subject to the terms of this Agreement, Customer hereby grants to Navatom a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.3. Navatom uses the backup feature of a third platform to create automatic 12-hour backups. Through this third platform, snapshots are retained for (a) 7 days with post-point recovery support, (b) 4 weeks with weekly recovery support, and (c) 12 months with monthly recovery support. Also, copies of all backups are stored on a mirror server. Navatom; accepts and declares that it stores data that is essential for the continuation of the Services only to the extent necessary.
3.4. Customer Obligations. (a) In General. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants to Navatom that Customer has all necessary rights, consents, and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Navatom the rights in Section 3.2 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the AUP. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer. (b) No Special Categories of Personal Data. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement for data, Customer specifically agrees not to use the Services to collect, store, process, or transmit any Sensitive Personal Information. Customer acknowledges that Navatom is not a payment card processor and that the Services are not to store Special Categories of Personel Data compliant. Except for Navatom's obligations as a business associate pursuant to this Agreement, Customer shall be responsible for any Sensitive Personal Information it submits to the Service, and Navatom will treat such submissions as Customer Data as defined in this Agreement such that Navatom is not subject to any additional obligations that apply to Sensitive Personal Information. (c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Act No: 6502 Consumer Protection Law or any other anti-spam laws and regulations.
3.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Navatom from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data, or breach or alleged breach by Customer of Section 3.4 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Navatom at Customer's expense. Notwithstanding the foregoing sentence, (a) Navatom may participate in defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Navatom's prior written consent unless the settlement fully and unconditionally releases Navatom and does not require Navatom to pay any amount, take any action, or admit any liability.
3.6. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Navatom may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Navatom may use the Aggregated Anonymous Data you analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Navatom customers. For clarity, this Section 3.5 does not give Navatom the right to identify Customer as the source of any Aggregated Anonymous Data. Navatom provided that it does not violate the provisions of this Agreement in any way; It may use the data obtained from the Customer to obtain statistics to determine the results of reports and surveys. Navatom declares and undertakes that it will use data by anonymizing during these transactions.
Navatom agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of any Service or Customer Data, as further described in Navatom's Security Policy attached as Schedule 2 to the Personal Data Protection and Processing Policy. However, Navatom will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Navatom's control.
5.1. Integration with Third-Party Platforms. The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling the use of the Services with any Third-Party Platform, Customer authorizes Navatom to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Navatom has no responsibility or liability for any Third-Party Platform or how a Third-Party Platform uses or processes Customer Data after such is exported to a Third-Party Platform. Navatom does not guarantee that the Services will maintain integrations with any Third-Party Platform, and Navatom may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
5.2. Third-Party Beta Releases. To the extent a customer uses features in the service that integrate with a third-party platform and a customer requests that Navatom integrates with such third-party platform's beta or pre-release features ("third party beta releases"), Navatom will have no liability arising out of or in connection with Navatom's participation in such third party beta releases or Customer's use of such integrated features.
6.1. Navatom Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale", or like terms in this Agreement, no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Navatom or its suppliers retain all rights, titles, and interests (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and Documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Navatom"). Except as expressly set forth in this Agreement, no rights in any Navatom are granted to Customer. Further, Customer acknowledges that the Services are offered as an online, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for the Navatom Apps in the format provided by Navatom.
6.2. Feedback. Customer, from time to time, may submit Feedback to Navatom. Navatom may freely use or exploit Feedback in connection with the Service.
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the then-current Subscription Term.
Customer may access Navatom's Services for 30 days from the date of payment. Customer; may make an advance payment to Navatom for 6 months or 1 year at its discretion. In this case; Navatom is committed to providing uninterrupted Service for the period paid.
7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 13 (Indemnification), all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Navatom receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment cards ("Credit Card"), the following terms apply:
Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Navatom (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.
Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.
Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Navatom and Navatom may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the "Settings" page on the Dashboard.
Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending Navatom notice of non-renewal to in accordance with Section 7.1 (Subscription Term and Renewals) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by Navatom), by terminating via the "Settings" page on the Customer Administrator, with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period, and Customer's Credit Card will not be charged.
Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Navatom will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which Navatom will not charge Customer's Credit Card for any additional fees
7.4. Payment Via Bank Transfer: Payment can be made via bank transfer. In this case, the following bank and account information of Navatom is used. The Customer can pay this account for one of the monthly, 6 monthly, or annual periods. However, Navatom may terminate the Services immediately if it becomes clear that the payment has not been made. Navatom has no liability if the payment is made to an account other than the specified IBAN. In line with the mutual Agreement of the parties, the receipt sent by the Customer becomes binding.
Also; If a payment is not successfully settled due to expiration of a bank transfer, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Navatom and Navatom may, in its sole discretion, either invoice Customer directly for the deficient amount or
terminate this Agreement.
Remittance fees belong to the Customer and are paid by the Customer. The Customer cannot make a claim from Navatom for money transfer fees, EFT, and other fees.
7.5. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Navatom reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Navatom also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the AUP.
8.1. Term. This Agreement is effective as of the Payment Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination.
Upon any expiration or termination of this Agreement, Customer shall all use and access to the Services (including any related Navatom) and delete all copies of the Documentation, any Navatom password or access code it holds, and any other Navatom Confidential Information immediately cease any and all use of and access to all Services (including any and all related Navatom) and delete (or, at Navatom's request, return) any and all copies of the Documentation, any Navatom passwords or access codes and any other Navatom Confidential Information in its possession. Customer acknowledges that following termination, they will have no further access to any Customer Data input into any Service, and that Navatom may delete any such data as may have been stored by Navatom after 60 days of termination.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.6 (General Restrictions), 2.8 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.5 (Indemnification by Customer), 3.6 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 7.4. (Payment Via Bank Transfer), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information), and 16 (General Terms).
9.1. Limited Warranty. Navatom warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Navatom's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Navatom to use commercially reasonable efforts to correct the reported non-conformity, or if Navatom determines such remedy to be impracticable, either party may terminate the applicable Subscription Term, and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer. Except for the limited warranty in section 9.1, all services are provided "as is". Neither Navatom nor its suppliers make any other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose, or non-infringement. Navatom does not warrant that Customer's use of the services will be uninterrupted or error-free, nor does Navatom warrant that it will review the customer data for accuracy or that it will preserve or maintain the customer data without loss or corruption. Navatom shall not be liable for the results of any communications sent or any communications that were failed to be sent using the services. Navatom shall not be liable for delays, interruptions, service failures, or other problems inherent in use of the internet and electronic communications, third-party platforms, or other systems outside the reasonable control of Navatom. The Customer is free to use its rights arising from the consumer protection law and other laws; Navatom is responsible for fulfilling its obligations arising from the aforementioned and other laws.
The Services are available subject to Navatom's Service Level Agreement ("SLA"). The Customer does not share any information that can be defined as Trade Secrets with third parties. The Customer accepts and undertakes that no data flow will be provided to anyone who is not a party to this Agreement regarding the information and data necessary for the smooth operation of the Services. Otherwise, 10% of the Contract price will be paid by the Customer.
During the Subscription Term of each Service, Navatom will provide end-user support in accordance within reason.
12.1. Consequential Damages Waiver. Except for excluded claims (defined below), neither party (nor its suppliers) shall have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of the possibility of such damages in advance.
12.2. Liability Cap. Except for excluded claims (defined below), each party's entire liability to the other arising out of or related to this Agreement shall not exceed the amount actually paid or payable by Customer to Navatom during the prior twelve (12) months under this Agreement.
12.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 15 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service or relating to Customer Data).
12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether, in contract, tort (including negligence), strict liability, or otherwise, and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Navatom will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes any Intellectual Property Rights and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Navatom resulting from such claim, provided that Navatom will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Navatom to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer's use of a Service is (or in Navatom's opinion is likely to be) enjoined, if required by settlement or if Navatom determines such actions are reasonably necessary to avoid material liability, Navatom may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Navatom. The foregoing indemnification obligation of Navatom will not apply: (1) if such Service is modified by any party other than Navatom, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Navatom, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without Navatom's prior written consent. This section 13 sets forth Navatom's and its suppliers' sole liability and Customer's sole and exclusive remedy with respect to any claim of intellectual property infringement.
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Navatom, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Navatom without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Navatom, the subcontractors referenced in Section 16.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Navatom may, upon Customer's prior written consent, use Customer's name to identify Customer as a Navatom customer of the Service, including on Navatom's public website. Navatom agrees that any such use shall be subject to Navatom complying with any written guidelines that Customer may deliver to Navatom regarding the use of its name and shall not be deemed Customer's endorsement of the Service.
16.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
16.3. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Navatom it must be emailed to legal@navatom.com and sent via mail to:
Attn: Ayazaga Mah. Mimar Sinan Sok. No.21 A/7, Sariyer / Istanbul, 34485
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute may subsequently be resolved in a court of law as set forth below.
b) Choice of Law and Jurisdiction. For any claim which is not subject to this dispute resolution provision, the Customer agrees to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the courts located within Istanbul central. In any dispute, Turkish law shall apply.
c) Construction and Joinder. This Agreement must be construed as if it was jointly written by both parties. Both Customer and Navatom agree that each may bring or participate in claims against the other only in their respective individual capacities, and not as a plaintiff or class member in any purported class. No arbitration or claim under this Agreement shall be joined to any other arbitration or claim, including any arbitration or claim involving any other current or former user of the services, and no class arbitration proceedings shall be permitted. In the event of any dispute concerning the validity or enforceability of this provision, such a claim must be adjudicated by a court and not by an arbitrator.
d) Injunctive Relief. Notwithstanding the above provisions, Navatom may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
16.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. The addresses of the parties specified in these Terms of Service shall be taken as basis. Changes of addresses must be notified in writing.
16.5. Amendments; Waivers. Except as provided under "Modifications to this Agreement" and otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing, signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement.
16.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are online, subscription-based products and that in order to provide an improved customer experience Navatom may make changes to the Services, and Navatom will update the applicable Documentation accordingly. The support and service level availability terms described in the Security Policy, the Privacy Policy, the Cookie Policy, the Personal data Protection and Processing Policy, and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Navatom's obligations as compared to those reflected in such terms as of the Effective Date).
16.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. In cases of force majeure; Navatom reserves the right to suspend its services. No payment is requested from the Customer for the period when the services are suspended.
16.8. Subcontractors. Navatom may use the services of subcontractors and permit them to exercise the rights granted to Navatom in order to provide the Services under this Agreement, provided that Navatom remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement, (ii) for the overall performance of the Services as required under this Agreement, and (iii) compliance with the terms of the Personal Data Protection and Processing Policy.
16.9. Subpoenas. Nothing in this Agreement prevents Navatom from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Navatom will use commercially reasonable efforts to notify Customer where permitted to do so.
16.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent. Therefore, in particular, the parties are not responsible for each other's receivables and debts related to the labor relationship.
16.11. Export Control and Economic Sanctions. While using the Services, the Customer agrees to comply with all internationally valid export control and economic sanctions and relevant import laws and regulations, primarily as the Republic of Turkey. Without limiting the foregoing, (i) the Customer is using the Services provided by Navatom in compliance with the economic sanctions of the Republic of Turkey; (ii) declares and undertakes that the Services provided by Navatom will not be abused in case of a possible economic or political embargo.
16.12. If any of the Terms of Service provisions are deemed invalid, it will not affect the integrity of the Terms of Service, and the Terms of Service will remain in effect.