Terms and Conditions
END USER License Contract
Version: June 2020
This agreement is between you (END USER) and MBYT Ltd (Istanbul Technical University Teknokent ARI-8 No:4 Sarıyer, Istanbul). Macrostatic is a brand owned by MBYT
By purchasing and using any Macrostatic Software you understand and agree to the following terms and conditions. If you do not agree to all the terms and conditions of this Agreement or if you do not have the authority to agree to all the terms and conditions of this Agreement on behalf of the licensee then you must not use the software.
SCOPE AND DESCRIPTION OF SERVICES
By copying, installing, uploading, accessing or USING ALL OR ANY PORTION OF THE SOFTWARE END USER agrees to enter into this Contract. A contract is then formed between MBYT and either END USER personally, if END USER acquires the Software for itself, or the company or other legal entity for which END USER is acquiring the software.
If END USER does not agree or does not wish to bind itself or the entity END USER represent, (a) does not download, copy, install, upload, access or use the Software since both parties agree that licensed software is not a tangible property thus cannot be returned.
3.1“Computer” means a single electronic device with one or more central processing units (CPUs) that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions.
3.2“Install” means to place a copy of Software onto a hard disk or other storage medium through any means (including, but not limited to, use of an installation utility application accompanying the (Software).
3.3“Software” means the computer program that provides browser-supported and Internet-based use. If programs are delivered to END USER as part of a package, the term Software shall include all programs delivered to END USER as part of that package described in the User Documentation.
3.4“User Documentation” means the explanatory printed or electronic materials that MBYT or its authorized distributor incorporates in or delivers in or on a package with the Software or sends to END USER on an invoice, via email, facsimile or otherwise after END USER acquires or installs the Software, including, but not limited to, license specifications, instructions on how to use the Software, and/or technical specifications.
3.5“END USER” means END USER personally (i.e., the individual who reads and is prompted to accept this Agreement) if END USER acquires the Software for itself or the company or other legal entity for whom it acquires the Software.
3.6“END USER Device” means the electronic device that supports browser-supported and Internet-based use under control of END USER. END USER shall ensure that the end devices deployed for using the Software and the connections required comply with the minimum system requirements specified by MBYT.
3.7“Subscription Term” means the time interval between initial term and any renewal term thereof together.
3.8“Credit” means the usage times that consist of analysis and pdf report that has 1 and 6 coefficients respectively.
3.9“Usage Limit” means limitation of the Credits and can vary according to subscription type. Usage limits are 300 Credits for monthly and 1500 Credits for annual subscriptions for Basic Plan. Usage limits are 1500 Credits for monthly and 18000 Credits for annual subscriptions for Professional Plan. Usage limits are 7500 Credits for monthly and 90000 Credits for annual subscriptions for Team Plan.
3.10“Web API”, is the service developed by MBYT which expose an application’s data and functionality over the internet.
3.11“Web Client”, is the browser-based software developed by MBYT which uses web APIs while making http requests.
3.12“Web Application” means the computer program that provides browser-supported and Internet-based use.
3.13”Trial Account” means a type of account which provides the user to use software for limited time.
3.14”Demo Version” means a type of usage which is available for everyone with a feature limitation. The aim of the demo version is to provide an experience to the user for the capabilities of the software.
END USER ACCOUNT
4.1-In order to be able to use the Software in accordance with these Terms, END USER shall create a dedicated user account on Software’s website by providing a valid email, which will be confirmed after creating the account.
4.2–MBYT reserves the right to downgrade a professional account to a trial version, if END USER is in default of any fees due.
4.3–MBYT may carry out necessary updates and upgrades to the Software in order to improve the usability, security or stability of the Software or to extend its features or to ensure its compliance with statutory requirements. Updates and upgrades to the Software shall be provided at MBYT’s sole discretion.
4.4-MBYT strives to offer constant availability of the Software but cannot warrant uninterrupted availability thereof. MBYT reserves the right to temporarily stop its services, when these services are under attack or experiencing technical difficulties due to the possible problems experienced by the service provider, or due to any similar technical reasons.
4.5-Users will be notified 3 days prior to planned maintenance actions, via either the announcement section on www.macrostatic.com or the email addresses END USER specified when creating an account as specified in 4.1 of this Contract.
4.6-MBYT offers the Software as a service and therefore has no influence and is not responsible for END USER’s Internet access or Internet connection including its availability, bandwidth or any costs and expenses of END USER associated therewith.
5.1 -License Grant, MBYT grants END USER a non-sublicensable, non-exclusive, non-transferable, usage limited Software in accordance with the applicable User Documentation and this Contract to use the software as a service version of the Software on its end devices.
5.2 -MBYT accounts are designed for a SINGLE END USER only. You will experience lockouts or suspensions of service if the account is used simultaneously in two or more locations or on more than a pre-determined number of devices per month. The records of MBYT are the only valid ones in case of any dispute in this matter. This is to protect unlawful use of MBYT products and services. END USER accepts all responsibility to take measures to prevent the misuse of the Software on this matter. END USER also accepts that any license found to be used simultaneously in multiple locations or on more than a pre-determined number of devices per month, will be subject to account lockout, suspension or termination.
5.3- All sales are final and there are no refunds. MBYT encourages the use of Trial Account option before purchase, although not compulsory. Trial accounts are to be used for only to have a general opinion about the capabilities of the Software. Trial account should and cannot be used for business purposes (this also includes the demonstration/review businesses online or offline as well)
5.4- END USER acknowledges and agrees that MBYT is under no obligation to provide maintenance on, support for, or updates/upgrades for the Software. Technical support and smaller program updates are guaranteed only if additional service contracts are signed. At its sole option and election, MBYT may upgrade the Software over time to include additional functionality. MBYT does not warrant or ensure that the version of the Software, END USER acquire will be compatible with any future major or minor release, version or update of the Software.
MBYT does not permit any of the following actions, and END USER acknowledges and agrees that END USER will not take any such actions:
6.1 -END USER cannot (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software; (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any components of the Software other than together with the Software; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) use the Software in violation of any applicable laws and regulations or outside of the license scope set forth herein; (h) configure the Software to collect (aa) any data that falls within the definition of ‘special categories of data’ within the meaning of the EU General Data Protection Regulation or a similar concept; (bb) passwords or other authentication credentials; (cc) any payment or other financial data, biometric data or genetic data; or (dd) any data relating to a person under the age of sixteen (16) years old (collectively, “Prohibited Data”); or (i) use the Software to (aa) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (bb) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (cc) interfere with or disrupt the integrity or performance of third-party systems, or the Software or data contained therein; (dd) attempt to gain unauthorized access to the Software or MBYT’s systems or networks; or (ee) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the Software.
6.2-It is not allowed to use Web API provided by MBYT with another third-party software.
6.3 -END USER shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations. In particular, END USER and its affiliates shall comply with the sanctions imposed by the European Union and the United Nations.
MAINTENANCE AND SUPPORT
7.1 –MBYT shall keep END USER informed at reasonable intervals and to a reasonable extent of the status of the rectification of a defect. MBYT makes no assurances as to the time at which a defect shall be removed.
7.2 -Under no circumstances shall END USER be entitled to obtain the source code of the Software.
7.3- MBYT cannot be held accountable for any harm resulting from the use of Web Application by END USER. It is the responsibility of END USER to interpret, render, come to conclusions or use the technical results offered by the Web Application.
SUBSCRIPTION TERM AND PAYMENT
8.1 -The term of the Contract starts on the date END USER makes the payment successfully and ends with END USERs’ Credits or Subscription Term run out, unless MBYT and END USER agree on any renewal.
8.2 -For a period of sixty (60) days following the end of the Subscription Term, END USER shall have the right to create backup copies of the professional files. MBYT shall be entitled to restrict END USER’s access to the professional files thereafter. MBYT may retain the professional files for the purpose of enabling any future use of the Software by END USER (if any).
Except as expressly provided otherwise in this Contract, title, ownership, and all rights and interest, including, without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights in and to the Software and User Documentation and any authorized copies made by END USER remain with MBYT and its licensors. The structure, organization and code of the Software and User Documentation are the valuable trade secrets of MBYT and its licensors, and END USER shall keep such trade secrets confidential. The Software and User Documentation are licensed, not sold.
WARNINGS (LEGAL DEFECTS IN THE SOFTWARE)
Software for structural analysis, computer-aided design software (CAD) and other technical software tools (CAE) are intended to be used by trained professionals only. They are not substitutes for END USER professional judgment as an engineer. Software for structural analysis, computer-aided design software (CAD) and other technical software tools (CAE) are intended to assist with product design and are not substitutes for independent design analysis, estimation or testing of product stress, safety and utility. Due to the large variety of potential applications for the Software, the Software has not been tested in all situations under which it may be used. MBYT shall not be liable in any manner whatsoever for the results obtained through the use of the Software. Persons using the Software are responsible for the supervision, management and control of the Software. This responsibility includes, but is not limited to, the determination of appropriate uses for the Software and the selection of the Software and other programs to achieve intended results. Persons using the Software are also responsible for establishing the adequacy of independent procedures for testing the reliability and accuracy of any program output, including all items designed by using the Software.
WARRANTY AND DISCLAIMER
Part A makes that END USER receive no express or implied warranties of any kind with respect to the Software and the User Documentation, and END USER agree that END USER accept the Software “as is”. Any statements or representations about the Software and its functionality in the User Documentation or any communication with END USER constitute technical information and not an express warranty or guarantee. In addition, MBYT specifically disclaims all other warranties including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Without limiting the foregoing, MBYT does not warrant that the operation of the Software will be uninterrupted or error free.
DEFAULT AND REMEDIES
The occurrence of any of the following shall constitute a material default under this Contract
The failure to make a required payment when due.
The insolvency or bankruptcy of END USER
The subjection of any of either END USER’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
In addition to any and all other rights a Party may have available according to law, if END USER defaults by failing to substantially perform any provision, term, or condition if this Contract (including without limitation the failure to make a monetary payment when due), MBYT may terminate the Contract by without further notice or action.
No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the MBYT against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of or excuse of any other, different or subsequent breach.
This Agreement and any rights hereunder are non-assignable by END USER and any purported assignment by END USER shall be void.
END USER agrees to indemnify and hold MBYT’s harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against MBYT. That result from the acts or omissions of END USER and/or its employees, agents, or representatives.
LIMITATIONS OF LIABILITY
In no event shall MBYT or its licensors have any liability for any loss or damages of any kind arising out of or in connection with the Software or User Documentation, including direct, incidental, special, indirect, or consequential damages, loss of profits, revenue, data, or cost of cover. The limitations of liability in this section 14 shall apply to any damages, however caused and regardless of the theory of liability, whether derived from contract, tort (including, but not limited to, negligence), or otherwise, even if MBYT has been advised of the possibility of such damages and regardless of whether the limited remedies available hereunder fail of their essential purpose. Also, END USER agree that the license, subscription and services fees and other fees charged by MBYT and paid by END USER are based on and reflective of the allocation of risk contemplated by this section 14 (limitations of liability) and that the liability limitations in this section 14 (limitations of liability) are an essential element of the agreement between the parties.
If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (“Force Majeure”), and if the Party unable to carry out its obligation gives the other party prompt written notice such event, then the obligations of the Party invoking this provision shall be suspended to the extend necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of Military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid and remove such causes of none performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
16.1 - If MBYT or END USER receive Confidential Information (as defined below), it may only use such Confidential Information to exercise its rights and fulfil its obligations under the Contract and shall take reasonable measures to avoid unauthorized disclosure or misuse of Confidential Information. It shall not disclose Confidential Information, except (a) to its employees, subcontractors, or professional advisers who have a legitimate need to know the Confidential Information and are legally bound to keep such Confidential Information confidential, (b) to a potential acquirer of its relevant assets, stock, or business under a strict duty of confidentiality, but only to the extent such potential acquirer has executed a term sheet, letter of intent or other similar agreement to negotiate such acquisition, and (c) as required to be disclosed by applicable law, or judicial or other governmental or regulatory order. These Terms and the Contract constitute Confidential Information of MBYT.
16.2 - “Confidential Information” means any information that is directly or indirectly disclosed or made accessible in connection with the Contract (a) to MBYT by or on behalf of END USER, or (b) to END USER by or on behalf of MBYT, and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or circumstances surrounding the disclosure, should reasonably be understood by the recipient to be confidential or proprietary, but does not include information that the recipient can demonstrate it already rightfully knew or possessed, becomes public through no fault of the recipient, is received by the recipient from a third party with the legal right to disclose it, or can be shown to have been independently developed by the recipient without reference to the discloser’s Confidential Information.
ENTIRE AGREEMENT AND SEVERABILITY
This Contract and the applicable User Documentation constitute the entire agreement between the Parties and supersede any other previous or contemporaneous communications, agreements, representations, or advertising with respect to the Software and User Documentation.
If and to the extent any provision of this Contract is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Contract in any other jurisdiction.
18.1–MBYT may amend and/or update these terms with future effect from time to time and as necessary for technical, economic or legal reasons.
18.2 -Any revision of these terms shall be announced to END USER in text form (simple email shall suffice) no later than six (6) weeks before their proposed effective date.
18.3 -END USER may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by END USER, unless END USER objects to the revision before their proposed effective date. MBYT shall expressly inform END USER thereof in the respective announcement.
LANGUAGE AND GOVERNING LAW
19.1 -The English language version of this Contract is legally binding in case of any inconsistencies between the English version and any translations.
19.2 -This Contract and any disputes arising out of or in connection with this Contract shall be governed by the laws of the Republic of Turkey, without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.