Any license to use and/or use the whole or part of Scanmarket eSourcing System made available to the User through NegoSmart Bilisim Hizmetleri A.S. (hereinafter the “NegoSmart”) through Scanmarket A/S, company registrations no. CVR 26716381, Solbjerg Hedevej 39, DK-8355 Solbjerg (hereinafter “Scanmarket”) by being logged in on and directed from NegoSmart’s own homepage www.negosmart.com to eSourcing System’s homepage https://negosmart.scanmarket.com as an application service provider solution (hereinafter “eSourcing System”) shall be subject to these terms and conditions. Any indication by the User of special or general terms in order, acceptance, terms of purchase, etc. shall not be deemed deviations from these Terms, unless expressly accepted by NegoSmart in writing. NegoSmart retains the right to amend these conditions and/or specific guidelines for the use of eSourcing System without prior notice.
The licensees of Scanmarket eSourcing System are hereinafter referred to as User or Users. Tenderers/the Parties invited by User referring to an event set up in Scanmarket’s eSourcing System are hereinafter referred to as Bidders. Scanmarket’s eSourcing System includes, unless otherwise specifically indicated, all Scanmarket’s electronic types of events made available to the User as an ASP solution.
Scope of License
The license agreement entitles a number of Users employees, corresponding to the version of the eSourcing System that the User has concluded a license agreement to use (e.g. RFx Contract Management, eAuction Gold or eAuction Platinum or single events) and paid a license fee or event fee for in accordance with NegoSmart’s price list in force at any time. Additional users may gain access to the eSourcing System through an extension of the license and additional payment of a license fee or event fee. User’s right to use the license is restricted to User’s legal entity and where the User is a natural person the license may only be used by employees employed under that natural person’s Tax ID. The User may not lend, let, lease, sell or in any other way transfer or assign the right of use granted to any other natural person, legal entity and/or employees of such persons and/or entities.
Access To The Scanmarket/NegoSmart eSourcing System
Once a license agreement has been concluded between the User and NegoSmart, including these terms and conditions, the User will receive a user specific password in order to gain access to Scanmarket eSourcing System as NegoSmart issues both an order confirmation and invoice to the User. In the event that the User does not pay the license fee or event fee, NegoSmart shall ask Scanmarket to refuse the User’s access to the eSourcing System and/or cut off the access for the User to the eSourcing System without this being considered a breach of the license agreement.
Duration and Expiration
The license agreement runs for 12, 24 or 36 months and will automatically be extended to cover the subsequent corresponding period until termination. The license agreement may be terminated with 30 days’ prior written notice to end at the expiration of the license period by sending an email to the address email@example.com. The license fee will be charged on monthly basis prior to the beginning of each month. The charge for a future 12, 24, or 36 months period amounts to the license fee applicable when charging for User’s version of Scanmarket’s eSourcing System. If a User makes use of a “Purchase Order” (PO) or similar, the User must send the PO so it is in NegoSmart’s possession prior to the beginning of the 12th, 24th, or 36th license month. If the PO has not been sent to NegoSmart prior to the beginning of the 12 th, 24th, or 36th license month, NegoSmart has the right to make use of the previous PO number when sending invoice or alternatively NegoSmart has the right to send invoice without a PO number. If the license agreement runs on a per event basis, the event fee will be charged once the event has been activated in the Scanmarket eSourcing System.
The agreed license fee or event fee falls due at the invoice date and must be settled within 14 days as of the invoice date. Where the time for payment is exceeded, the User shall pay interest in the amount of 1.5% for each month or fraction thereof, until the amount has been credited to NegoSmart’s account at NegoSmart’s bank.
User shall be entitled to hold events of the version covered by license agreement between User and NegoSmart and for which the license fee has been paid or on an ad hoc per event basis agreed with NegoSmart in writing.
User may only use the licensed eSourcing System regarding goods/services, which User is prepared to purchase on the terms indicated in the specific event. User shall indemnify NegoSmart for any claim raised against NegoSmart by third party or public authorities as a consequence of User-initiated events, including claims for damages irrespective of the grounds for the claim for damages, also as a result of concluded or possibly not concluded agreements. User’s indemnification of NegoSmart also extends to costs incurred for lawyer’s fees and proceedings, including legal costs.
Exemption of Liability
NegoSmart and Scanmarket renounce liability to pay damages as a result of: misprints on the homepage, third party information, erroneous information or errors in specifications, invitations etc., and lacking functionality in the eSourcing System as a result of technical errors, computer virus or sickness at Scanmarket. NegoSmart and Scanmarket disclaim liability to pay damages and any other liability in relation to User, Bidders, third party or public authorities as a consequence of User-initiated events, including claims for damages as a result of concluded or possibly not concluded agreements. NegoSmart renounces any liability and claims that the User may incur towards public authorities, including regarding taxes and duties, etc., or as a result of failure to observe legislation regarding tenders, competition etc. Scanmarket accepts product liability in accordance with the mandatory provisions of the Danish Product Liability Act, but disclaims product liability on any other basis. NegoSmart’s liability to pay damages does not include indirect and consequential loss of any kind, including operating loss, lost profits, loss of data or similar. NegoSmart’s liability to pay damages cannot exceed an amount in excess of the license fee that the User has paid to NegoSmart during a period of 3 months preceding the time at which the basis for liability arises.
NegoSmart’s and Scanmarket’s Legal Status
NegoSmart, having received the right to grant licenses from Scanmarket, solely grants the User an opportunity to use the licensed eSourcing System for the purpose of purchase and sale of services and/or products. Consequently, either Scanmarket or NegoSmart cannot be considered a dealer, agent or department of a potential Bidder or in any other way bind or be bound by such a Bidder. All agreements to purchase and/or sell goods and/or services are made directly between the User and the Bidder. NegoSmart is entitled to contact the Bidder.
Scanmarket shall be entitled to disconnect the access to the eSourcing System every Sunday between 00.01 until 06.00 for the purpose of making adjustments, updates, error corrections etc. in the eSourcing System, hardware etc. Outside this period of time, Scanmarket shall also – temporarily and without such action being considered negligence etc. – be entitled to interrupt access to the eSourcing System for necessary, urgent error correction. Scanmarket aims to make any interruption as brief as possible and strives to place such interruptions outside normal working hours whenever possible.
NegoSmart and Scanmarket,as data processor, undertake to keep secret any personal data, trade secrets, business concepts, business relations and other confidential matters that may come to Scanmarket’s or NegoSmart’s knowledge as part of the fulfillment of the license agreement. NegoSmart and Scanmarket both agree not to disclose any corporate/personal information provided by the User, unless approval is granted by the User or as required by law. This provision shall also apply after the end of the expiration of the license agreement and for single events purchased by the user on an ad hoc basis.
Breach of Contract
Where the User commits a material breach of contract, NegoSmart shall be entitled to terminate the license agreement without notice. A material breach of contract includes non-payment of fees fallen due and non-observance of the guidelines in force at any time regarding the use of the eSourcing System. In the event of termination, NegoSmart shall be entitled to receive damages in accordance with Turkish law. The User shall not be entitled to be reimbursed for license fees already paid, in full or in part.
Neither party shall be liable to the other for any breach of its obligations or termination under the license agreement arising from causes beyond its reasonable control, inclusive of but not limited to, fires, earthquakes and other acts of God, strikes, delay caused by transport disputes, any legal enactment or regulation, blockades, boycotts or other similar circumstances.
Should one or more provisions contained in these terms be or become invalid, all other terms shall remain valid between the Parties. In this case, the Parties shall replace the invalid provision(s) with a valid one, which shall as far as possible pursue the objective and legal position contained in the invalid provision(s).
Venue and Choice of Law
The license agreement is governed by and shall be construed in accordance with Turkish law, except disputes arising in respect to personal data protection and processing which to be construed in accordance with Danish law. . Any dispute arising as a result of the license agreement shall be settled by the Courts of Istanbul, Republic of Turkey as the legal venue. This provision does not, however, concern the international, private law rules of Turkish law, including CISG. NegoSmart shall, however, be entitled to take legal action at the court in the jurisdiction of the User’s place of business.