Terms and Conditions for the Supply of Services

CONTENTS

CLAUSE

1. About us 1

2. Background 1

3. Our contract with you 1

4. Subscription, placing an order and its acceptance 1

5. Additional user subscriptions 3

6. Our services 3

7. Your obligations 4

8. Charges 6

9. How to pay 6

10. Intellectual property rights 7

11. How we may use your personal data 8

12. Customer data 8

13. Third party providers 10

14. Limitation of liability 10

15. Confidentiality 11

16. Term, Termination, consequences of termination and survival 11

17. Events outside our control 13

18. Communications between us 13

19. General 13

TestInvite Terms and Conditions for the Supply of Services

Effective Date: 10 July 2024

1. About us

1.1 Company details. Vanilya Elektronik Hizmetler ve Bilişim Tic. A.Ş. (company number 926625) (we and us) is a company registered at the Istanbul Trade Registry under company number 926625 and our registered office is at Esentepe Mah. Kore Sehitleri Cad. No: 29, Zincirlikuyu, Şişli, Istanbul, Turkey.

We operate the website https://www.testinvite.com/.

1.2 Contacting us. To contact us, email us at info@testinvite.com. How to give us formal notice of any matter under the Contract is set out in 18.2.

2. Introduction

2.1 We have developed a certain software and platform named TestInvite (the “Platform”), which we make available to subscribers such as you via the internet on a complimentary, subscription or pay-per-use basis (as the case may be) for the purpose of preparing and conducting secure, high-quality online exams globally.

2.2 You wish to use the Platform and Services in your business operations to deliver and administer online exams to your exam participants (“Participants”).

2.3 We agree to provide the Platform and the Services to you subject to the terms and conditions of this agreement.

3. Our contract with you

3.1 Our contract. These terms and conditions (“Terms”) apply to the order by you and supply of Services by us to you (“Contract”) during the term of the Contract.

3.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

3.3 We reserve the right to amend the Terms at any time.

4. Registration, placing an order and its acceptance

4.1 Creating your Registration. You will have to register to the Platform to receive the Services. By completing your registration, you agree these Terms will apply to your and your Participants’ use of the Platform and the provision of Services by us to you (including Complimentary Services).

4.2 Complimentary Services. After you create your registration, you will have complimentary access to the Platform and will be able to use some of the Services (including but not limited to creating test questions and saving them in your question bank, creating your own tests or create tasks). You acknowledge that the access and functionality of the Platform and the Services will be limited during complimentary access phase. The site will guide you as to which Services are out of the scope of complimentary access.

4.3 Paid Services. Certain Services (including but not limited to API Integration, Analysis Module, Custom Domain) are only accessible through placing an order for activation and using credits. Price per credits are listed and updated from time to time under https://www.testinvite.com/lang/en/pricing.html. You may place credit orders through the site or through directly contacting us and spend these credits on the Platform.

(a) Purchasing and Using Credits. The Platform works through the Credit system. Each credit allows you to take one test with one candidate. Additionally, credits are used to enable advanced security features during your evaluations.

(b) Subscription. Credit may also be purchased by creating a subscription to the four subscription plans that are named as starter, essential, advanced, and enterprise. Details of each plan is listed under https://www.testinvite.com/lang/en/pricing.html.

(c) Custom-made Solutions. We are in most instances able to assist your requests for customising the Platform (including but not limited to adding a section in the exam report) or providing custom made Service solutions (including but not limited to migrating questions to the Platform, preparing custom tests, project management relating to the administration of a test, assessing written and spoken English). To discuss these Custom-made Solutions and to obtain a custom quote, please contact us.

4.4 Placing an order. Please follow the onscreen prompts to place your order. For orders to manually place credit purchase orders, activate subscriptions or for Custom-made Solutions, please contact us via email. Creating a registration shall be deemed as an order to receive Complimentary Services. Each order is an offer by you to buy the services listed above from clause 4.2 to 4.3 specified in the order (Services) subject to these Terms.

4.5 Correcting input errors. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.

4.6 Accepting your order. Our acceptance of your order takes place when we send an email to you to accept it (Order Confirmation). The Contract will relate only to those Services confirmed in the Order Confirmation.

4.7 Refunds TestInvite does not issue refunds after Order Confirmation is issued. You may cancel your subscription at any time, but you will not receive a refund for any unused credits.

4.8 Technical Failure in Credit Usage If you cannot receive error-free service despite using credit, and if we determine that the reason for this is a technical failure caused exclusively by us, we will re-load the same amount of credit to your account as the one that was used but could not be utilized. The provisions in Articles 4.7 and 6.5 are reserved.

5. Participant Registration

5.1 You may, from time to time, add additional Participants and we shall grant access to the Platform and the Services to such Participants in accordance with the provisions of these Terms.

5.2 If you wish to add Participants, you should notify us in writing.

6. Our services

6.1 Descriptions and illustrations. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.

6.2 Changes to specification. We reserve the right to amend the specification of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.

6.3 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.

6.4 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract or claim damages.

6.5 Condition of Services: We:

(a) do not warrant that:

(i) your use of the Services will be uninterrupted or error-free; or

(ii) that the Services, and/or the information obtained by us through the Services will meet your requirements;

(b) will not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.6 Non-Exclusive Use: These Terms shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.

6.7 Permission and Consents: We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under these Terms.

6.8 Hours of Services: We shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window performed outside normal business hours; and

(b) unscheduled maintenance in reaction to a unforeseen failure in the IT system.

6.9 We will, as part of the Services and at no additional cost to the Customer, provide you with our standard customer support services during normal business hours.

7. Your obligations

7.1 You shall:

(a) provide us with:

(i) all necessary co-operation in relation to these Terms; and

(ii) all necessary access to such information as may be required by us;

in order to provide the Services, including but not limited to customer data, security access information and configuration services;

(b) without affecting your other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;

(c) carry out all of your other responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed, we may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Participants use the Platform and these Services in accordance with these Terms and you shall be responsible for any Authorised User's breach of these Terms;

(e) ensure that its network and systems comply with the relevant specifications provided by us from time to time; and

(f) be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to our data centres.

7.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in 7.1 (Your Default):

(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under 16 (Termination);

(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and

(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.

7.3 You shall not access, store, distribute or transmit any viruses, or any material during the course of your use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;

and we reserve the right, without liability or prejudice to its other rights to you, to immediately and without notice disable your access to any material that breaches the provisions of this clause.

7.4 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.

8. Charges

8.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this 8.

8.2 The Charges are the prices quoted on our site or directly to you at the time you submit your order.

8.3 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.

8.4 Our Charges may change from time to time, but changes will not affect any order you have already placed.

8.5 Our Charges are inclusive of VAT (where applicable).

9. How to pay

9.1 Payment for the Services is in advance. Unless agreed otherwise, we will take your payment upon acceptance of your order.

9.2 You can pay for the Services using a debit card, credit card or bank transfer.

9.3 We will send you an electronic invoice within seven days following payment.

9.4 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under 16 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this 9.4 will accrue each day at 10% per annum.

10. Intellectual property rights

10.1 All intellectual property rights in or arising out of or in connection with the Platform and the Services and resulting reporting documentation (e.g. exam reports) (other than intellectual property rights in any materials provided by you) will be owned by us.

10.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract (excluding materials provided by you) to use the Platform, the Services and resulting reporting documentation for your internal business operations. You may not sub-license, assign or otherwise transfer the rights granted in this 10.2.

10.3 While we do not claim ownership of the materials you provide to us, by posting, uploading, inputting, providing or submitting your contribution you are granting us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy, distribute, transmit, display, perform and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.

10.4 You may not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and resulting reporting documentation (as applicable) in any form or media or by any means except as provided under these Terms; or attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform. Modification of the Platform’s content is a violation of our copyright and other proprietary rights. Additionally, you may not offer any part of the Platform for sale or distribute it over any medium including but not limited to over-the-air television or radio broadcast, a computer network or hyperlink framing on the internet without our prior written consent.

10.5 You may not access all or any part of the Platform or the Services in order to build a product or service which competes with the Platform or the Services or use the Services and/or Platform to provide services to third parties.

10.6 The Platform and the information contained therein may not be used to construct a database of any kind, nor may the site be stored (in its entirety or in any part) in databases for access by you or any third party or to distribute any database sites containing all or part of the site. You may not use any of the trade-names, trade-marks, site-marks and logos displayed on the site (collectively "marks"), except as expressly provided in these terms. Nothing appearing on the site or elsewhere shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any marks.

11. How we may use your personal data

11.1 We will use your personal data to:

(a) provide the Services;

(b) process your payment for the Services; and

(c) inform you about similar services that we provide, but you may stop receiving these at any time by contacting us.

11.2 We will process your personal data in accordance with our Privacy Policy which you may find at https://www.testinvite.com/lang/en/docs/privacy-policy.html.

12. Customer data

12.1 You shall own all right, title and interest in and to all of the customer data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such customer data.

12.2 In the event of any loss or damage to customer data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged customer data from the latest back-up of such customer data maintained in accordance with our archiving procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of customer data caused by any third party (except those third parties sub-contracted by us to perform services related to customer data maintenance and back-up).

12.3 We shall, in providing the Services, comply with our Privacy Policy relating to the privacy and security of the customer data available at https://www.testinvite.com/lang/en/docs/privacy-policy.html or such other website address as may be notified from time to time, as such document may be amended from time to time in our sole discretion.

12.4 Both of us will comply with all applicable requirements of applicable data protection legislation (“Data Protection Legislation”). This clause is in addition to, and does not relieve, remove or replace, each of our obligations or rights under applicable Data Protection Legislation.

12.5 We both acknowledge that:

(a) When we process any personal data on your behalf of Participants when performing our obligations under these Terms, you are the data controller and we are the data processor.

(b) We will process the personal data of Participants on your behalf based on the Data Processing Addendum in Schedule 1 which sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject. The Data Processing Addendum in Appendix 1 is an integral part of this Agreement.

(c) Any and all personal data and customer data may be transferred or stored outside the EEA, USA, UK, Turkey or the country where you or the data subjects are located in order to carry out the Services and our other obligations under these Terms.

12.6 Without prejudice to the generality of 12.4, you will ensure that you have all necessary and appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of these Terms so that we may lawfully use, process and transfer the personal data in accordance with these Terms on your behalf (including outside EEA or the country where you or the data subjects are located).

12.7 Without prejudice to the generality of 12.4, we shall, in relation to any personal data processed in connection with the performance by us of our obligations under these Terms:

(a) process that personal data only on your documented written instruction unless we are required by applicable laws to process personal data (Applicable Laws).

(b) not transfer any personal data outside of the European Economic Area or the country where you or the data subjects are located in a way that breaches Applicable Laws;

(c) assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(d) notify you without undue delay on becoming aware of a personal data breach;

(e) delete or return to you personal data and copies thereof as provided under the Data Processing Addendum; and

(f) maintain complete and accurate records and information to demonstrate its compliance with this 12 and immediately inform you if, in our opinion an instruction infringes the Data Protection Legislation.

12.8 We shall both ensure that we have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.

12.9 You consent to us appointing third party sub-processors detailed in the Privacy Policy which may be found at https://www.testinvite.com/lang/en/docs/privacy-policy.html as a third-party processor of personal data under these Terms. We confirm we have entered into or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business and in either case which we undertake to reflect and will continue to reflect the requirements of the Data Protection Legislation. As between us and you, we shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this e 12.

12.10 Either party may, at any time on not less than 30 days' notice, revise this 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).

13. Third party providers

You acknowledge that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

14. Limitation of liability

14.1 Nothing in the Contract limits any liability which cannot legally be limited.

14.2 Subject to 14.1, we will not be liable to you, whether in contract, tort, for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) Slight negligence;

(g) loss of or damage to goodwill; and

(h) any indirect or consequential loss.

14.3 Subject to 14.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 50% of the annual Charges paid under the Contract.

14.4 This clause 14 will survive termination of the Contract.

15. Confidentiality

15.1 We each undertake that at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by 15.2.

15.2 We each may disclose the other's confidential information:

(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this 15; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.

16. Term, Termination, consequences of termination and survival

16.1 Term. These Terms shall continue indefinitely unless:

(a) either party notifies the other party of termination, in writing, in which case these Terms shall terminate in thirty days; or

(b) otherwise terminated in accordance with the provisions of these Terms;

16.2 Termination. Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:

(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so;

(b) you fail to pay any amount due under the Contract on the due date for payment;

(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or

(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.

16.3 Consequences of termination

(a) all licences granted under these Terms shall immediately terminate and you shall immediately cease all use of the Platform and the Services;

(b) we may destroy or otherwise dispose of any of the customer data in our possession in accordance with 12, unless we receive, no later than ten days after the effective date of the termination of these Terms, a written request for the delivery of the then most recent back-up of the customer data. You shall pay all reasonable expenses incurred by us in returning or disposing of customer data; and

(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.

16.4 Survival. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

17. Events outside our control

17.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).

17.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:

(a) we will contact you as soon as reasonably possible to notify you; and

(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.

17.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.

18. Communications between us

18.1 When we refer to "in writing" in these Terms, this includes email.

18.2 Notwithstanding mandatory provisions of applicable law, any notice or other communication given under or in connection with the Contract must be in writing and sent by pre-paid first class post, or email.

18.3 A notice or other communication is deemed to have been received:

(a) if sent by pre-paid first-class post at the next working day after posting; or

(b) if sent by email, at the next working day after transmission.

18.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

18.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

19. General

19.1 Assignment and transfer

(a) We may assign or transfer our rights and obligations under the Contract to another entity.

(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.

19.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).

19.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.

19.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

19.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.

19.6 Governing law and jurisdiction. The Contract is governed by Turkish law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of Istanbul (central) courts.