AveJana, Tech Binge Review LLP
1.1 “AveJana Network Services” refers to the full scope of services provided by AveJana to all clients.
1.2 “Legacy Content” means content that exists prior to this Agreement.
1.3 “Network Data” is data that is generated, stored or collected by AveJana technologies (e.g cookies, web beacons, pixels, or mobile SDKs.) Network Data includes but is not limited to, user identifiers, interaction data, and impressions. Network Data does not include UGC, Service Data, or PII.
1.4 “Personally Identifiable Information” or “PII” is information that can reasonably be used to identify a specific individual.
1.5 “Service Data” is data provided by you for the purpose of facilitating the Services. Service Data includes but is not limited to, product information included in feeds and transaction detail information such as unit prices and cart values.
1.6“Services” means services as described in the Service Order.
1.7 “Syndicated Content” is content submitted on third party sites that may be shared through the AveJana Network. An example of Syndicated Content is a review submitted on a product site that may be redisplayed across affiliated retail sites.
1.8 “User Generated Content” or “UGC” is content submitted via the Services with the intent of being publicly displayed. UGC includes but is not limited to reviews, ratings, questions, and answers. UGC includes associated meta data, such as date and time stamp.
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, including without limitation your payment of all of the undisputed fees due, AveJana will provide the Services in accordance with the terms of this Agreement, including the Service Levels outlined in Exhibit A and any terms and conditions provided for in a Service Order. You may not use the Services in violation of the terms of this Agreement.
2.3 Syndicated Content. In the event that you receive Syndicated Content, you are granted a limited, non-exclusive, royalty-free, revocable, worldwide license solely to display Syndicated Content on your website for the duration of the Agreement. You may not use it for any other purpose. Syndicated Content is owned by the party who originally collected it and that party may revoke licenses in that content at will.
2.4 Loyalty, Rewards and Similar Programs. If you elect to use the Services in conjunction with a loyalty, rewards, contest, sweepstakes or similar program, then you acknowledge and agree that you are responsible for ensuring that such program, including without limitation the earning, redemption and expiration of points and rewards, is compliant with all applicable laws, codes, rules and regulations.
2.5 Legacy Content. In the event that you have AveJana import any Legacy Content, you represent and warrant that you have any and all consents necessary to use Legacy Content.
2.6 Your Content. You acknowledge and agree that, as between you and AveJana, you are responsible for all content you post via the Services (e.g. answering of end user questions).
2.7 Account Protection. In the event that you become aware that the security of your login information has been compromised or breached, you must deactivate such account or change the account’s login credentials. Additionally, you shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that no longer is authorized by you to access the Services.
2.8 Assistance. You shall provide AveJana with all information and assistance as reasonably requested and required for AveJana to activate and operate the Services. Further detail on your assistance can be found in the applicable Service Order.
2.9 Moderation Commitment. You hereby acknowledge and confirm that you, solely, are responsible to edit any and all messages, before such messages are sent to your end users by and/or through the Site (“Your Messages”). Without derogating from any of the terms and conditions contained herein, you hereby undertake to uphold the following standards as a minimum in respect of any and all of Your Messages: (i) include a conspicuous identifier and a valid physical address; and (ii) include a valid return address and any additional contact information you may have; and (iii) not use deceptive subject headings; and (iii) in respect of advertisements and/or promotional transmissions, note in the heading and at the beginning of the transmission that the transmission is an advertisement; and (iii) include a simple and user friendly opt-out mechanism, including by email, in all transmissions; and (iv) stop any and all transmissions to a certain user in the event said user opted-out or otherwise objected to receive transmissions; (v) send transmissions strictly to end users who opted-in to receive them.
3. FEES AND PAYMENT
3.1 Fees. You shall pay AveJana the undisputed fees in the currency and as of the date set forth in each Service Order. You shall submit such payments as required in accordance with the payment instructions (e.g. payment address) provided in each invoice. All fees are exclusive of applicable sales, excise, or use taxes. Except for income taxes levied on AveJana’s net income, you shall pay or reimburse AveJana for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, including sales or use taxes, data processing taxes, royalty taxes and amounts levied in lieu thereof which are legally payable by you for charges set, services performed or to be performed, or payments made or to be made hereunder. You shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to AveJana under this Agreement. Unless otherwise notified, AveJana will use your corporate address as set forth in Service Order to determine if your purchase of Services is subject to taxation. This provision shall survive the termination of this Agreement and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g. a deficiency assessment by a taxing authority as a result of an audit after the termination of this Agreement). Payments are due net thirty (30) days from of the date of invoice unless agreed otherwise by the parties in the applicable Service Order. You will notify AveJana of any invoice dispute within thirty (30) days of the date of invoice, at which time the parties will engage in good faith efforts to resolve the dispute.
3.2 Late Payments. Your failure to pay undisputed fees when due constitutes a material breach of this Agreement. If payment is not made within thirty (30) days after the AveJana invoice due date, AveJana may, in its sole discretion, choose to do any or all of the following:
(i) charge you a late fee on the unpaid balance at the lesser of one percent (1%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly, and/or
(ii) suspend your access to the Services, during which time you will continue to be charged for any period of suspension. AveJana’s suspension or resumption of the Services does not limit or prevent AveJana from pursuing all other remedies available.
4. PROPRIETARY RIGHTS
4.1 Service Ownership; License; Retained Rights. AveJana owns all right, title, and interest in and to the Services, including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. AveJana grants you a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Services for the term of the applicable Service Order. You acknowledge that the rights granted under this Agreement do not provide you with title to or ownership of the Services, but only a right to use the Services subject to and under the terms and conditions of this Agreement. All rights not expressly granted to you hereunder are reserved by AveJana.
4.2 Restrictions. Unless otherwise permitted in writing by AveJana, you may not, and may not knowingly permit any third party to,
(i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services;
(ii) use, evaluate or view the Services for the purpose of designing or creating a product or service competitive to AveJana’s products or services; or
(iii) resell, use the Services in a service bureau, or provide services for a third party in any manner.
4.3 Data Collection, Ownership, and Use.
4.3.1 Client Data. As between you and AveJana, you own all UGC, PII, and Service Data. Nothing contained herein will be construed as granting AveJana ownership of any data owned by you.
4.3.2 AveJana Data. AveJana owns all Network Data. Unless it has been aggregated or anonymized, Network Data will only be disclosed as necessary to provide you the Services.
4.3.3 License. You grant AveJana a limited, non-exclusive, royalty-free, irrevocable, worldwide license to use data owned by you as necessary to provide, improve, monitor and develop the AveJana Network Services for the duration of the Agreement. Unless it has been aggregated or anonymized, data owned by you will only be disclosed as necessary to provide you the Services.
4.4 Confidential Information. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects
(i) that the disclosing party identifies as confidential or proprietary; or
(ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. You acknowledge that the Services, the terms of this Agreement and any Services Order, and any other proprietary or confidential information provided to you by AveJana constitute valuable proprietary information and trade secrets of AveJana. AveJana acknowledges that the Confidential Information you provide to AveJana constitutes your valuable proprietary information and trade secrets. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party. Notwithstanding the foregoing, an unauthorized disclosure does not include any disclosure of information which
(i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party
(ii) was acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown disclosure;
(iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or
(iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
5.WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY
5.2 Your Warranty. You represent and warrant that (i) in relation to the Services, you will comply with all applicable laws, codes, regulations and ordinances in all material respects; (ii) you have any and all consents and authorizations as may be necessary for AveJana to provide the Services; (iii) your websites upon which the Services are deployed do not contain any material which is defamatory, promotes illegal activity, or contains hate speech.
5.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, AVEJANA DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONIINFRINGEMENT, NONIINTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.
5.4 Limitations of Liability. THE LIMITATIONS OF LIABILITY IN SECTIONS 5.4.1 AND 5.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE AGREEMENT. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
5.5 Your Indemnity. You shall indemnify, defend, and hold harmless AveJana, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement agreement, from a third party’s claim that arises out of (a) your breach of any applicable laws, regulations, codes or ordinances, including but not limited to privacy law; and (b) arising from a third party’s claim that your website on which the Services are provided or any application you develop infringes any trademark, copyright or patent in the United States.
5.6 AveJana Indemnity. AveJana shall indemnify, defend, and hold harmless you, your officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement agreement, from a third party’s claim that arises out of (a) AveJana’s breach of any applicable laws, regulations, codes or ordinances, including but not limited to privacy law; and (b) arising from a third party’s claim that the Services, as provided by AveJana to you within the scope of this Agreement, infringe any trademark, copyright or patent in India. AveJana has no liability to indemnify a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed by you; (ii) unauthorized modifications or uses of the Services; or (iii) your acts or omissions not in accordance with the terms of this Agreement. If your use of the Services is enjoined or is likely to be enjoined due to a third party claim of infringement for which AveJana is required to indemnify you under this Agreement then AveJana may, at its expense and within its sole discretion, do one of the following:
(x) procure for you the right to continue using the Services; (y) replace or modify the enjoined Service to make it non-infringing but functionally equivalent; or (z) terminate the enjoined Service and return any fees paid for enjoined Services not yet rendered.5.6.1 The indemnification obligations set forth in this Section 5.6 are AveJana’s sole and exclusive obligations with respect to any IP claim for which AveJana has an obligation to indemnify you.
5.7 Indemnification Conditions. The indemnification obligations contained in this Agreement are conditioned upon: (a) notice by the indemnitee to the indemnitor of any claim, action or demand for which indemnity is claimed within five (5) days of the indemnitee receiving notice of such claim (failure to meet this condition does not exempt the indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the indemnitor’s ability to defend the claim); (b) complete control of the defense and settlement by the indemnitor, provided that no settlement may be made without the consent of the indemnitee, such consent not to be unreasonably withheld or delayed; and (c) reasonable cooperation by the indemnitee in the defense as the indemnitor may request. The indemnitee has the right to participate in the defense against the indemnified claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense.
Further, the indemnitee may not settle an indemnified claim unless the indemnitor has declined to defend.
5.8 Proportional Liability. Each indemnitor’s liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor’s proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnities.
6.1 Term. This Agreement commences on the effective date of the first Service Order and continues for as long as there is at least one active Service Order. This Agreement automatically terminates in the event there is no active Service Order for three (3) months.
6.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement or a specific Service Order upon ten (10) days’ written notice. Upon termination of this Agreement or a Service Order due solely to your failure to pay fees, you will pay for the Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each affected Service Order, not to exceed twelve (12) months of fees per Service Order. Upon termination of this Agreement or a Service Order due solely to a breach by AveJana, AveJana shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination
7.1 Independent Contractors. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
7.2 Subcontractors. If AveJana subcontracts any portion of the Services or support, training or maintenance services to a third party, AveJana (i) shall require such subcontractor to comply with the material terms and conditions of this Agreement, and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed by AveJana.
7.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, Third Party Sites, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes or governmental demands or restrictions.
7.5 Assignment. Either party may assign this Agreement in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.
.7.6 Notice and Delivery. Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party. Delivery will be deemed conclusively made (i) at the time of service, if personally served, (ii) five days after deposit in the India mail, properly addressed and postage prepaid, if delivered by express mail or certified mail, (iii) upon confirmation of delivery by the private overnight deliverer, if served by overnight delivery, and (iv) at the time of electronic transmission (with successful transmission confirmation). Delivery of a copy of this Agreement, any Service Order, notice, or such other document bearing an original signature, by electronic mail in “portable document format” (“pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
If to AveJana:
C/O Tech Binge Review LLP
New Delhi – 110018
Notices to you will be addressed to the contact designated in writing by you to AveJana for your relevant account, and in the case of billing related notices, to the relevant contact designated by you.
7.7 Miscellaneous. This Agreement is governed by the laws and jurisdiction of New Delhi, India (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in courts located in New Delhi, India and the parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement, including the exhibits attached hereto, and each Service Order constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. An amendment to this Agreement is only valid if in writing and acknowledged by an executive or duly authorized representative of both parties. If any provision of this Agreement, or the application thereof, is for any reason and to any extent determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original will be substituted and the remaining provisions of this Agreement will be interpreted so as best to reasonably affect its original intent. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver. Any provision of this Agreement, which contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, limitation of liability and indemnification provisions) survive termination or expiration of this Agreement and continue in full force and effect. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. If an ambiguity or a question of intent or interpretation arises, this Agreement is to be construed as if the parties had drafted it jointly, as opposed to being construed against a party because it was responsible for drafting one or more provisions of this Agreement.
AVEJANA PLATFORM SERVICE LEVEL AGREEMENT
1. Uptime Commitment. AveJana will deliver 99.9% uptime of the AveJana controlled portions of your website that are end-user facing. The uptime is calculated as follows: (total minutes in any calendar month – total minutes of unavailability) divided by (the total minutes in same calendar month). Downtime during the weekly maintenance window does not count as a period of unavailability. The weekly maintenance window will not exceed four hours per week and will be scheduled during minimal traffic times. Additionally, during the introductory offer period where no charges are being levied on users, the guaranteed uptime may be lower at 95% even as AveJana will try its best to maintain it at 99.9%.
1.1. Exceptions. AveJana is not responsible for a failure to meet any service level to the extent that failure is attributable to any of the following, in which case the services downtime does not count against the Uptime Commitment:
1.1.1. Your failure to install any necessary upgrades provided by AveJana or perform any of your responsibilities set forth in the Agreement to the extent such failure adversely affects AveJana’s ability to perform the Services, provided that AveJana uses commercially reasonable efforts to perform despite your failure.
1.1.2. Factors outside AveJana’s reasonable control; provided that AveJana would have been able to perform but for such factor, AveJana has not materially contributed in the cause of such factor, and AveJana could not have reasonably foreseen and prevented the effect of such factor with a commercially reasonable effort.2. Communication. If the services are unavailable for a period longer than fifteen (15) minutes, AveJana shall use commercially reasonable efforts to (i) notify your designated contact, (ii) identify the source of the issue, and (iii) resolve. Notwithstanding the foregoing, AveJana has no obligation if the Services are down due to your actions (e.g., code change without notice to AveJana).
3. Termination Option. You may terminate the affected Service Order with thirty (30) days’ written notice if AveJana fails to meet the Uptime Commitment during two (2) consecutive calendar months or fails to meet the Uptime Commitment for any three (3) calendar months within any twelve (12) month period. Except for as provided in Section 6.2 of the Master Agreement, the provisions of this Exhibit A state your sole and exclusive remedy for any service level deficiencies of any kind.