MERLIN SERVICES CUSTOMER AGREEMENT
This Customer Agreement (“Agreement”) contains the terms and conditions between you (hereinafter referred to as “Customer”, “you” or “your”) and Erstream Yayıncılık A.Ş. (hereinafter referred to as “Erstream”, “we”, “us” or “our”) and shall apply to your use of Merlin Services. Please check https://www.merlincdn.com information about Erstream and Merlin Services.
This Agreement shall take into effect when you click the “I accept” check box and button or you start using Merlin Services.
You warrant and represent that you are lawfully able to enter into contracts. If you are entering into this contract on behalf of another legal entity, references to “Customer”, “you” or “your” mean such entity.
Capitalized terms in the Agreement are defined in Exhibit A.
Use of Merlin Services
Rights of Use
You have the right to use and access Merlin Services in accordance with this Agreement, Service Level Agreements and Service Terms. You will comply with the terms of this Agreement and all laws and regulations which apply to your use of Merlin Services.
Before you use Merlin Services, you must have a Merlin Account and provide a valid e-mail address and payment details associated with your account. All your login credentials must be complete, accurate and updated.
- You are responsible for all your activities that occur under your account in general.
- You will ensure that the setup and configuration of your account is appropriate. Your log-in credentials and passwords are for your own use of Merlin Services and you will not disclose them to any third party or user except users of your entity, agents and subcontractors performing work on your behalf. We do not provide an archiving service and you are solely responsible to take proper actions to protect, secure and backup your Content from any loss of data and unauthorized access. We are not responsible for unauthorized access to your Account.
- You are responsible that your use of Merlin Services and your Content will not violate any applicable law, regulations, Policies, and third-party rights including intellectual property, privacy, or publicity rights. If any part of your Content is considered in violation of this article by Erstream or public authorities, you agree to remove it from Merlin Services immediately upon notice for removal.
- Neither you nor any of your users will (a) modify, alter, copy or make derivative works of Merlin Services, (b) reverse engineer, disassemble, or decompile Merlin Services or apply any other process to derive the source code of any software in the Merlin Services, (c) publicly disseminate technical information and performance in respect of Merlin Services and its features, (d) resell, lease, rent, provide access to, or sublicense Merlin Services to any third party for any purpose or in any way.
- You will not misrepresent the relationship or imply any relationship or affiliation between us except expressly permitted by this Agreement.
- Without prejudice to the exercise of our other rights under any provision of this Customer Agreement, we may immediately suspend Merlin Services (including access to paid services) for such period we consider reasonable if; (a) we reasonably suspects any fraud, material non-disclosure or other adverse activity, (b) you fail to pay any sums properly due and owing or you don’t have enough Merlin Credits for the Services under this Customer Agreement, (c) necessary to protect the security of our systems or any third party, (d) you breach the Customer Agreement (use of suspension right shall not prevent Erstream from terminating this Customer Agreement under Section 7); (e) there is an enforcement of applicable law or adverse regulatory action (including conclusion of a regulatory proceeding, investigation or inquiry) that our legal counsel reasonably believes prohibits or materially impairs the ability to continue Merlin Services,
- Upon suspension of Merlin Services, (a) you remain responsible for all fees and charges you incur during the suspension period and you will not be able to demand any refund for prepaid services, (b) you will not be able to use any Merlin Services, (c) we may remove all Content that may conflict or breach any applicable law, regulation and/or Policies and we may take further actions we reasonably believe that is needed.
- You will defend, indemnify, and hold harmless Erstream and its affiliates, business partners, representatives, agents, their employees from and against all third party demands, claims, losses, liabilities, judgments, damages, liens, fines, penalties, actions, costs, and expenses (including reasonable attorneys’ fees) as a result of: (a) your use of Merlin Services or your Content, (b) your breach of this Customer Agreement and Policies or your violation of applicable law or regulations.
- You agree that upon receipt of a notice of such claims, you will notify Erstream immediately. Erstream may participate in the defense, negotiations, and settlement of any such claim with its own counsels. You agree to cooperate with Erstream in the defense of such claim or action. You shall not settle or admit any claim without Erstream’s prior written consent.
Pricing and Payment
You agree to pay us the applicable fees for Merlin Services as stated on https://www.merlincdn.com/pricing using supported payment methods. We may update the service fees by giving you at least 30 days’ prior notice. All fees under this Agreement will be paid in USD.
Unless otherwise specifically stated, you agree that Merlin Services is invoiced and payable in advance. All pre-paid Merlin Services must be redeemed within twelve (12) months from the date of purchase/invoice. At the end of the twelve (12) month term, any remaining pre-paid unused Merlin Services will expire; no refunds will be provided for any remaining pre-paid unused Merlin Services.
All fees are stated exclusive of any applicable taxes and governmental fees, and you are required to pay and bear all taxes, charges, assessments, tariffs, customs, duties, levies, and any other fees (including, without limitation, interest, and penalties thereon) now in effect or hereafter imposed or based upon or resulting from the sale of Merlin Services, other than income taxes on Erstream. All payments made by you to us under this Agreement will be made net, free and clear of any deduction or withholding.
Security and Privacy
We will take reasonable and appropriate technical and organizational measures to help you secure your Content against unauthorized and/or accidental loss, access, disclosure, or destruction.
We will not access your Content except as necessary to (i) provide Merlin Services, (i) comply with the law or binding regulations. We will use reasonable efforts to give you notice of any legal requirement or request unless it would violate the law.
Licence for Merlin Services
We own all technology, its derivative works and intellectual property rights on Merlin Services including all title, interest, and related rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use Merlin Services.
Rights on your Content
You represent and warrant us that you have all right, title, and interest in and to your Content necessary to grant the rights contemplated by this Agreement.
You hereby irrevocably entitle us to use or exploit your comments, suggestions, use cases or other feedback without restrictions.
YOUR ACCESS TO AND USE OF MERLIN SERVICES OR ANY CONTENT IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULL EXTENT PERMITTED BY LAW, ERSTREAM DISCLAIMS ALL WARANTIES, EXPRESS, IMPLIED OR STATUTORY, OF MERCHANTABILITY, FINESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ERSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE SERVICES WILL (a) BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (b) MEET YOUR REQUIREMENTS OR EXPECTATIONS, (c) BE FREE FROM ERRORS OR THAT DEFECTS WILL BE CORRECT, (d) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (e) BE ENTIRELY SECURE. ERSTREAM ALSO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO YOUR CONTENT WILL BE SECURE, LOST OR ALTERED AND YOUR USE OF THIRD-PARTY APPLICATIONS IN CONNECTION WITH MERLIN SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ERSTREAM OR THROUGH MERLIN SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ERSTREAM, ITS AFFILIATES AND LICENSORS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE WHATSOEVER RELATED TO OR ARISING FROM MERLIN SERVICES, OR OF ANY SITE OR RESOURCE LINKED TO, REFERENCED, OR ACCESSED THROUGH MERLIN SERVICES, OR FOR THE USE OR DOWNLOADING OF, OR ACCESS TO, ANY MATERIALS, INFORMATION, PRODUCTS, OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST CUSTOMERS OR REVENUES, LOST OPPORTUNITIES, BUSINESS INTERRUPTION, LOST SAVINGS OR LOSS OF CONTENT OR OTHER DATA, EVEN IF ERSTREAM IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION AND WAIVER OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORIES. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.
Term and Termination
This Agreement shall commence on the date you on which you first access Merlin Services shall remain in effect until terminated according to the provisions hereunder (the “Term”).
Either party may terminate this Agreement at any time for any reason, upon thirty (30) days’ advance notice. Erstream reserves the right to terminate this Agreement immediately with reasonable notice and suspend your access to Merlin Services at any time, for any reason if you breach the Agreement or we consider such action is necessary to prevent harm to the security, operation, and maintenance of Merlin Services.
Effect of Termination
Upon the termination of this Agreement, (i) all your rights under this Agreement immediately terminate and you must cease using Merlin Services, (ii) you remain responsible for all fees and charges for your use of Merlin Services after termination, (iii) you remain responsible with the following articles of this Agreement, Sections 8, 1/e, 4, 5, 6, 8, 9/j-k-l, (iv) you will delete or destroy any Confidential Information in your possession under clause 8, (v) Erstream may delete your Content, but you understand and accept that you are responsible for keeping back-ups for your Content.
Each party agrees that all nonpublic information it (the “Receiving Party”) obtains from the disclosing party (the “Disclosing Party”), including but not limited to, financial information, business plans, business strategies, business affairs, customer lists, promotional and marketing activities, price lists, cost information, software, programs, devices, methods, techniques and processes, process descriptions, descriptions of technical know-how, technical specifications, documentation, applications or that, given the nature of the information or circumstances surrounding its disclosure, constitutes the property of the Disclosing Party (“Confidential Information”). Confidential Information may be written or oral, expressed in electronic media or otherwise disclosed, and may be tangible or intangible. The Receiving Party will (i) not disclose any Confidential Information to third parties, (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may make disclosures to the extent required by Laws, regulations, or binding orders, provided that (unless prohibited by Laws) the Receiving Party notifies the Disclosing Party in advance.
The Receiving Party can prove that the information is not Confidential, because they (i) are or become publicly available other than through a breach of this Agreement by the Receiving Party, (ii) were known to the Receiving Party before the disclosure by the Disclosing Party, (iii) become known to the Receiving Party from a source other than the Disclosing Party and without breach of an obligation of confidentiality owed to the Disclosing Party (iv) are independently developed by the Receiving Party without benefit of the Confidential information of the other party, or (v) have been approved for public release by written authorization of the Disclosing Party.
This Agreement, including the Exhibits and Policies constitute the entire agreement between the parties with respect to your use of Merlin Services and supersede all prior communications, understandings, and agreements, whether written or verbal. The section headings contained herein are for convenience in reference and or not intended to define or limit the scope of any provision of this Agreement.
Erstream may change terms of this Agreement, its Exhibits and Policies at any time, by providing you with notice by email or by other reasonable methods. By continuing to use Merlin Services thirty (30) days after our notice, you agree to such change.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid, effective, and enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
Both Parties are independent contractors under this Agreement. Nothing herein contained shall be deemed to create an employment, agency, joint venture, or partnership relationship between the Parties hereto or any of their agents or employees, or any other legal arrangement. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
Both Parties will comply with all applicable laws and regulations, including import and export rules or sanctions designated by governmental authorities. You are solely responsible for compliance in relation to the manner in which you choose to use Merlin Services, including your use of your Content. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the European Union or its member states, or other applicable government authority.
You may not assign this Agreement or its rights or obligations under this Agreement, without our written consent. Any non-permitted assignment or transfers are void. Erstream may assign this Agreement without your consent, (i) in connection with a merger, acquisition, or sale of all or substantially all of our assets, (ii) as part of a corporate reorganization; and upon such assignment, the assignee is deemed substituted for Erstream as a party to this Agreement and Erstream is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement, because of an Act of God, labor disputes or other industrial disturbances, telecommunication failures, embargoes or other governmental restrictions or actions, war (declared or undeclared) or other hostilities, terrorism or by any other event, condition or cause which is not foreseeable on the Term and is beyond the reasonable control of the party. In the event of non-performance or delay in performance attributable to any such causes, the period allowed for performance of the applicable obligation under this Agreement will be extended for a period equal to the period of the delay. However, the party so delayed shall use its best efforts, without obligation to expend substantial amounts, to remove or overcome the cause of delay.
This Agreement and your use of Merlin Services as well as any dispute that might arise between you and us, are governed by, and must be construed in accordance with, the laws of Turkey, which shall be applied without reference to any conflict-of-laws rule. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
Each Party agree and consent that any claim or cause of action arising out of or relating to this Agreement or Merlin Services must be commenced exclusively in Istanbul Courts.
All notices, requests, demands and other communications under this Agreement shall be in writing. You must send any notices to Erstream at the following address: Merkez Mahallesi, Akar Caddesi, I Tower Bomonti Apt. No: 3/18 Şişli İstanbul 34384 Turkey. Erstream may send notices to Customers’ email address which is associated with Customers’ account.
All notices and communications under this Agreement must be in the English language.
You will not make any press release or any other public communication in relation to this Agreement and your use of Merlin Services without prior written approval of Erstream.
EXHIBIT (A) DEFINITIONS
“Account” means the arrangement created by you and with your credentials in order to use Merlin Services.
“Affiliate” means any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with a Party.
“Content” means any data and information (including your contact details, credentials, and any data that you or your users submit, publish, share, download or upload on Merlin Services) and your usage information with Merlin Services.
“Laws” means all applicable laws, regulations, directives, and international conventions.
“Merlin Services” means services that we provide to you under this Agreement through the web site www.merlincdn.com and its subsequent versions thereof, including apps, tools or similar digital services, as may be modified by us time to time.
“Reseller” means any legal person or entity who have a valid agreement with Erstream to resell and facilitate access to Merlin Services.
“User” means any legal person or entity that you or your Affiliates permit to access Merlin Services dedicated for your use.