THE FOLLOWING SETS FORTH THE TERMS FOR BAZAARVOICE EXPRESS SUBSCRIPTION AGREEMENT ("AGREEMENT"). IF YOU DISAGREE WITH ANY OF THE TERMS, BAZAARVOICE SHALL NOT PROVIDE YOU THE SUBSCRIPTION SERVICES SET FORTH HEREIN. THIS AGREEMENT IS BY AND BETWEEN YOU AND POWERREVIEWS LLC, A WHOLLY OWNED SUBSIDIARY OF BAZAARVOICE INC. (HEREAFTER "Bazaarvoice").
By accepting this Agreement, you indicate your acceptance of the Agreement and its terms. Also, by accepting this Agreement, you are representing that you are over 18 and have the authority to bind the party entering into this Agreement (you and that party collectively referred to as "You" or "Your").
1.1 "Category Page" is a page(s) on Your Site(s) where multiple products within a product category are displayed in summary format, often linked to a Product Page.
1.2 "Disallowed Use" is any use by You of Bazaarvoice Services and/or Technology that is outside of the scope, purposes, and intended use as expressly set forth in this Agreement. Disallowed Use includes but is not limited to (i) use that disrupts Services (or delivery thereof), (ii) use that is illegal, contains illegal subject matter, and/or is for illegal purposes; (iii) creation and/or use of any Product Review that is fake, indecent, obscene, pornographic, hate speech, and/or highly explosive subject matter (as determined by Advertising.com); (iv) use such that You are rejecting greater than 30% (thirty percent) of Product Reviews approved by Level One Service (defined in Section 2.2 below); and (v) and/or use in a manner not expressly contemplated by Bazaarvoice documentation.
1.3 "Page View" is a view by a User of any page that contains Product Review content, including but not limited to Product Review Display, Review Snippet, and content identified on "Write a Review Page", or any portion of the foregoing, on Your Site.
1.4 "Bazaarvoice Dashboard" is the dashboard provided by Bazaarvoice to merchants, currently found at dashboard.bazaarvoice.com
1.5 "Bazaarvoice Technology" is Bazaarvoice’s proprietary technology, software, tools, files, know-how, and processes.
1.6 "Product Page" is the page(s) on Your Site(s) where product details can be viewed and where Product Reviews are displayed.
1.7 "Product Review" is a review of a product submitted or provided through Bazaarvoice Technology including but not limited to product description, product title, sku, model number, UPC, image, category, customer information, name, email, display name, product information, product ratings, and click feedback.
1.8 "Review Snippet" is the overall star rating for a product displayed on a Product Page or Category Page that may also include links that allow Users to read reviews and to write reviews for that product.
1.9 "Product Review Display" is a display of all Product Reviews and/or their summary for a particular product on the Product Page by Bazaarvoice Technology.
1.10 "Restricted Country" means Switzerland or any member country within the European Union.
1.11 "Restricted Country Sites" means any of Your Sites that are operating within, or specifically targeting individuals residing within, any Restricted Country.
1.12 "Review Content" is content provided by the User in connection with a Product Review.
1.13 "Service(s)" is the Bazaarvoice Express service, provided by Bazaarvoice, including the Review Service and Moderation Service and other related services, as marketed on the website PowerReviewsExpress.com and further described in Section 2 ("Services & Policies") below.
1.14 "Subscription Fees" are the fees applicable to your use of the Services for the subscription plan you sign up for, which may include one-time fees, recurring service fees, set-up fees, usage fees, overage and other fees, on an affiliate site that is authorized to resell the Services, or as otherwise agreed upon in writing by you and Bazaarvoice.
1.15 "Term" is the term of the Agreement as set forth in Section 9 below.
1.16 "Ticketing System" is Bazaarvoice's standard ticketing system accessible through the Bazaarvoice Dashboard.
1.17 "Trademark" is each party's respective name and logo provided to the other party.
1.18 "Your Site(s)" is the site(s) You control and from which You sell products online.
1.19 "User" is one who wishes to post a Product Review or read a Product Review on Your Site(s).
2. Services & Policies.
2.1 Review Service. During the Term, and subject to the payment of all applicable Subscription Fees, Bazaarvoice shall use commercially reasonable efforts to: (a) make available Product Reviews to be read on Product Page(s); (b) allow postings of Product Reviews by Users from Your Site(s); and (c) allow postings of Reviews Snippets next to individual product listings.
2.2 Moderation Service. During the Term, and subject to the payment of all applicable Subscription Fees, Bazaarvoice shall use commercially reasonable efforts to: (a) screen submitted Product Reviews for standard errors, profanity, mistakes and relevancy, and/or to manually modify submitted Product Review before Product Review is posted on Your Site(s) (Level One Service); and (b) provide screens of approved Product Reviews that allow You to monitor and reject Product Reviews after they are pushed to Your Site(s).
2.4 Service Level Agreement. Bazaarvoice shall comply with the service level agreement set forth in Exhibit A.
3. Ownership; License Grants
3.1 Ownership. As between You and Bazaarvoice, and subject to the license grant in Section 3.3, Bazaarvoice shall own and retain all right, title and interest in the Bazaarvoice Technology. As between You and Bazaarvoice, and subject to the license grant in Section 3.2, following User's submission of a Product Review, Bazaarvoice shall immediately assign to You, and You shall retain, all right, title and interest to the Product Reviews that it and/or User(s) provides to Bazaarvoice.
3.2 Your License. Subject to the terms and conditions herein, You hereby grant Bazaarvoice a perpetual, non-exclusive, royalty-free license to use, copy, publicly perform, publicly display, modify or create derivative work, and distribute the Product Reviews and any additional data provided hereunder to Bazaarvoice: (a) for the purposes of providing the Services hereunder; and (b) for Bazaarvoice's business purposes, and (c) analyzing the data, and running reports there from.
3.3 Bazaarvoice License. For the term of the Agreement, and subject to the terms and conditions herein, Bazaarvoice hereby grants to You, and You hereby accept a non-transferable, non-exclusive, royalty-free license to access and use the Bazaarvoice Technology solely to receive the Services as set forth herein.
3.4 Third Party Tracking Cookie. As part of the Services, Bazaarvoice may deploy a third party cookie or other tracking beacon on you website to better understand user behavior. Data collected from such technology is owned by Bazaarvoice.
4.1 Bazaarvoice warrants to You that the Services will be performed by qualified personnel in a professionally competent manner.
4.2 You warrant that (a) for the purposes contemplated by this Agreement, You have all right, title and interest necessary to perform Your obligations hereunder, including the right to grant the licenses set forth in Section 3 above, without further restriction or obligation, and (b) You and Your Users shall not utilize the Bazaarvoice Technology or Services for any Disallowed Use.
4.3 Mutual warranty. Each party warrants that it (a) has no other agreements or commitments that conflict with its obligations to the other party under this Agreement, and (b) shall not breach its confidentiality obligations set forth in Section 7 ("Confidentiality").
4.4 The Services are provided to You AS IS. EXCEPT AS SET FORTH HEREIN, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ARE DISCLAIMED. BAZAARVOICE DISCLAIMS ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, AND/OR ERROR-FREE.
5. Your Obligations.
Prior to Bazaarvoice's performance of Services, You shall perform the requirements set forth below:
(a) comply with integration requirements in accordance with Bazaarvoice's specifications and integration wizard, including Bazaarvoice On Demand Integration Guide v. 1.0 or higher, for Your Sites that apply;
(b) enable Your Product Reviews to appear on Your Site with a standard hyperlink entitled "Powered by Bazaarvoice Express";
(c) require that any Product Review or portion thereof written on Your behalf (e.g., by contractor, employee, or third party with or without compensation) shall be identified by the Staff Reviews Badge through the Bazaarvoice Dashboard;
(d) pay the agreed-upon Subscription Fees to Bazaarvoice as set forth in Section 5.3 below;
(e) provide Bazaarvoice with timely feedback on the product including filing support tickets through Bazaarvoice's Ticketing System for issues found, and reasonably assist Bazaarvoice in working through issue(s) until resolution;
(f) require that any Product Review or portion thereof written on Your behalf (e.g., by contractor, employee, or third party with or without compensation) shall be identified by the Staff Reviews Badge through the Bazaarvoice Dashboard; and
(g) provide Bazaarvoice during sign-up for the Services a credit card for payment of fees as set forth in Section 5.3 below.
5.2 Account; Account Security
To subscribe to the Services, you must have a registered account with Bazaarvoice. You agree to maintain accurate and complete information in your Bazaarvoice account at all times, including but not limited to current billing information such as your billing address, a valid credit card number or other account number, and the expiration date. You acknowledge that you are solely responsible for maintaining the security of, and restricting access to, your account, user name and password.
5.3 Subscription Fees
(a) Subscription Fees. The Services are contingent upon your paying, and by subscribing you agree to pay, all applicable Subscription Fees for the subscription plan you select when you sign up for the Services and any other amounts due in connection with the Services. All Subscription Fees are shown, and must be paid, in U.S. dollars. The Subscription Fees exclude all taxes, if applicable. You are responsible for any taxes that you are obligated to pay or that Bazaarvoice may collect from you in connection with your subscription. You acknowledge that Subscription Fees are subject to change at any time immediately upon notice. If you do not agree to the new Subscription Fee, you may terminate in accordance with Section 9 below.
(b) Payment Options. Bazaarvoice may offer one or more payment options to you, which may include recurring automatic payments. You represent and warrant that you are authorized to use the designated card or payment method provided for the payment option selected. YOU AUTHORIZE BAZAARVOICE, OR ITS DESIGNATED PAYMENT PROCESSOR, TO AUTOMATICALLY CHARGE YOUR SUBSCRIPTION FEES (INCLUDING ANY APPLICABLE ONE-TIME FEES, RECURRING PAYMENTS, OVERAGE AND USAGE FEES) PLUS ANY APPLICABLE TAXES OR OTHER AMOUNTS DUE IN CONNECTION WITH THE SERVICES TO THAT DESIGNATED CARD OR OTHER PAYMENT METHOD, AND TO PROCESS AND STORE SUCH PAYMENT INFORMATION. It is your responsibility to update your credit card information when it expires. If Bazaarvoice, or its designated payment processor, is unable to process your payment for any reason, Bazaarvoice may (i) immediately suspend or terminate the Service provided to you; (ii) seek collection of the outstanding amount owed; and/or (iii) seek legal action against you for breach of this Agreement.
(c) You acknowledge that for recurring automatic payments, the timing and amount of each charge may vary depending on your usage of the Service, changes in applicable taxes or increases in Subscription Fees, and you consent to such variable charges without advance notice to you except as required by law. You may revoke your authorization for future recurring automatic payments at any time by modifying your payment options in your Bazaarvoice account. Termination of the Services will become effective as set forth in Section 9 below, and upon termination, you will no longer have the access to the Services. You authorize Bazaarvoice, or its designated payment processor, to charge your specified credit card or other payment method in the amount of any outstanding balance due to Bazaarvoice upon the termination of the Services.
(d) Payment Terms; Cancellation and Refunds. There are no refunds or cancellations of payments made to Bazaarvoice, including without limitation any prepayments for the Services, except as provided in this Agreement or otherwise required by law. All amounts payable by you that are not paid when due will bear interest at the rate of one percent (1%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Your payment of such late fees shall not excuse or cure any breach or default for late payment.
5.4 Restricted Country Sites
Prior to making the Service available through any Restricted Country Sites, you agree to do the following:
(a) Obtain prior express written consent from Bazaarvoice to do so;
(c) Enter into a written data processing agreement with Bazaarvoice that includes the following provisions: (i) You will be the data controller with respect to Restricted Country Information; (ii) You will be solely responsible for complying with applicable data protection laws with respect to any Restricted Country Information, including but not limited to ensuring that individuals are properly notified of the collection and processing of their personal information and, if necessary, obtaining appropriate consent for the transfer of such information to the United States or any other country in which Bazaarvoice processes such information; and (iii) Bazaarvoice will be a data processor with respect to Restricted Country Information, will process such information solely in accordance with Your instructions and will maintain an appropriate level of security for such information. You otherwise covenant, represent and warrant that You have any and all authorizations as may be necessary to enable Bazaarvoice to process any Restricted Country Information it receives in connection with its obligations under this Agreement.
6.1 Trademark License.
Subject to the terms and conditions of this Agreement, each party grants to the other a limited, non-exclusive, non-transferable, non-sublicenseable, worldwide license to use and display Trademark grantor's Trademark in accordance with the Trademark grantor's standard trademark guidelines provided to Trademark grantee solely as follows:
6.2 Each party agrees that it will not: (a) acquire any rights with respect to the other party's Trademark and that all use of Trademark and all associated goodwill shall inure to the benefit of the grantor; (b) register or attempt to register the other party's Trademark or any confusingly similar mark anywhere in the world; and/or (c) use the Trademark in any manner that tarnishes the reputation of or otherwise unfavorable reflects upon the trademark grantor.
6.3 The licensing party shall indemnify, defend and hold harmless the other party from any claims, demands, suits, actions, damages, fines, costs and expense (including reasonable attorneys' fees) incurred by the indemnified party arising out of or relating to any actual or alleged infringement of the trademarks or service marks of a third party by the Trademarks licensed by such party under this Agreement.
Each party shall keep any Confidential Information strictly confidential and shall not, without the other party's prior written consent, disclose the other party's Confidential Information except as set forth herein. "Confidential Information" shall mean any information disclosed by either party (the "Disclosing Party") to the other party (the "Receiving Party"), either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, research, product plans, products, services, customers, markets, software, Bazaarvoice Technology, computer programs, know-how, ideas, inventions (whether or not patentable), processes, designs, drawings, engineering, hardware configuration information, marketing or finance documents and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which is confidential, proprietary, trade secret and/or designated as "Confidential," "Proprietary" or some similar designation, but excludes information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the disclosing party as shown by the Receiving Party's files and records prior to the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality; (e) 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; or (f) is required by law to be disclosed by the Receiving Party, provided that the receiving party shall give the Disclosing Party written notice of such requirement prior to disclosing so that the Disclosing Party may seek a protective order or other appropriate relief.
Each party agrees that it will take reasonable precautions to protect the confidentiality of such information, such precautions at least as restrictive as it takes to protect its own Confidential Information. Additionally, the Receiving Party further agrees to disclose the Confidential Information only to its employees who need to have knowledge of the Confidential Information. The Receiving Party shall ensure that its employees who have access to Confidential Information of the other party have executed a written non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.
Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Except as otherwise provided in this Agreement, all documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party shall be promptly returned to the Disclosing Party upon the termination or expiration of this Agreement.
8. Limitation of Liability; Indemnification.
8.1 Limitation of Liability.
In no event shall either party be liable to the other for consequential, special, indirect, incidental, or punitive damages, including without limitation lost data or lost profits, arising out of the performance of this Agreement, regardless of whether such party has been advised of the possibility of such loss or damage. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL BAZAARVOICE'S TOTAL, CUMULATIVE LIABILITY (INCLUDING INDEMNIFICATION COSTS, IF ANY, REQUIRED UNDER SECTIONS 6.3 AND 8.2) EXCEED US$500 (FIVE HUNDRED US DOLLARS).
Each party shall defend, indemnify and hold harmless the other party ("Indemnified Party") from and against any third party claims, judgments, demands for damages and costs (including without limitation reasonable attorneys' fees), which result from or arise out any breach of warranty set forth in Section 4 ("Warranties") and Section 5.4. The obligations of this Section 8.2 are contingent on the Indemnified Party's (a) giving prompt written notice of any such claim to the indemnifying party; (b) providing reasonable cooperation in the defense and all related settlement negotiations to the indemnifying party; and (c) agreeing that to the indemnifying party shall have sole control over the litigation or settlement of such claim. You acknowledge that Bazaarvoice's indemnification obligations are subject to Section 8.1 above, and Bazaarvoice shall have no indemnification obligations in the event that: (i) Bazaarvoice Technology is modified or combined with other software or other systems if the third party action would have been avoided had such modification or combination not occurred; or (ii) You use the Bazaarvoice Technology and/or Services in a manner not expressly contemplated by Bazaarvoice documentation provided to You.
9. Term and Termination
9.1 The term of this Agreement ("Term") shall begin on the date on which You accept this Agreement and shall remain in effect on a calendar month-to-calendar month basis, unless terminated earlier as set forth in this Agreement. In no event shall the term of this Agreement be greater than one (1) year unless expressly agreed upon by both parties in writing. In the event that You have prepaid service fees and terminate this Agreement prior to the end of the prepayment period, no service fees shall be returned.
9.2 Bazaarvoice may terminate this Agreement: (a) in the event You materially breach a term or condition of the Agreement, and such material breach has not been cured within ten (10) days of written notice of such breach, or (b) upon thirty (30) days of written notice by Bazaarvoice.
9.3 You may terminate this Agreement for convenience by filing a termination ticket with Bazaarvoice's Ticketing System, such termination effective thirty (30) days from submission. In the event of termination, Bazaarvoice will charge and receive payment via Your credit card on file through Your notice termination period. Bazaarvoice shall provide You- with an XML file of the Product Reviews submitted on the Your Site(s) within ten (10) business days of Your filing a ticket for XML file return through Bazaarvoice's Ticketing System.
Following termination or expiration of this Agreement, Sections 1 ("Definitions"), 3.1 ("Ownership"); 3.2 ("Your License"); 4.4 ("Warranties"); 6.2 ("Marketing"); 7 ("Confidentiality"), 8 ("Limitation of Liability; Indemnification"), 9 ("Term and Termination"), and 10 ("General") shall survive.
10.1 This Agreement must be construed as if both parties jointly wrote it, governed by Texas law except for its conflicts of law principles. This Agreement and its Exhibits represent the entire agreement between You and Bazaarvoice and supersedes all other representations, proposals, or agreements, whether written or oral. Any conflicting or additional terms contained in additional documents or oral discussion are void except as expressly set forth herein. Each provision of this Agreement is severable from all other provisions, and if one or more of the provisions of this Agreement shall be declared invalid the remaining provisions of this Agreement shall remain in full force and effect. You may grant approvals, permission and consents to Bazaarvoice by email, but any modifications by You to this Agreement must be made in a writing (not including email) executed by both parties (Bazaarvoice may refuse to execute such writings in Bazaarvoice's sole and exclusive discretion). Neither party may assign its rights and/or obligations under this Agreement except to a successor to the entire, or substantially entire, business without the prior written consent of the other, which shall not be unreasonably withheld or delayed. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any other contract, agreement or undertaking with any third party.
10.2 Notwithstanding anything to the contrary in this Agreement, Bazaarvoice shall not be prohibited at any time by You from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services.
10.3 Any controversy or claim arising from or relating to this Agreement shall be settled by final arbitration by the American Arbitration Association ("AAA") under AAA's Commercial Arbitration Rules, by a tribunal of three (3) arbitrators, one appointed by the claimant, the second by the respondent, and the two shall choose a third neutral arbitrator. The arbitration will be held in San Francisco, California. Judgment on the award may be entered and enforced by any court having jurisdiction over the parties and subject matter of the arbitration.
10.4 Neither party will be liable for failure to perform obligations under this Agreement if the failure results from an act of God, fire, explosion, accident, industrial dispute, or any other event beyond such party's reasonable control.
10.5 Any notice required to be given to Bazaarvoice must be sent to our corporate headquarters address set forth on our website via first class or airmail or overnight courier, and is deemed given upon receipt. Any notice required to be given to You may be sent by confirmed email to the email address you provide us as the Account Administrator Email Address.
Service Level Agreement
1. SYSTEMS SERVICE LEVEL AGREEMENT
Bazaarvoice strives to maintain 99.9 % availability of the Services ("Availability Target"), subject to the conditions outlined herein:
Bazaarvoice verifies availability of the Service by opening a separate connection to the Service every five minutes, with a 60-second failure threshold. A Service disruption is defined as two or more consecutive failed connections ("Disruption"), and will be registered as the number of minutes between the first and last failed tests.
Disruptions caused by denial of service attacks, mail flooding, or other attacks directed toward Bazaarvoice's network of servers are excluded from our Availability Target.
Bazaarvoice will perform scheduled maintenance ("Maintenance") on our servers on a regular basis. Bazaarvoice reserves two hours per month for Maintenance purposes. Disruptions due to Maintenance are excluded from our Availability Target. Maintenance will generally be performed between the hours of 1am-3am Eastern Standard Time. Bazaarvoice will provide clients advance notice of Maintenance whenever possible.
Under certain conditions, Bazaarvoice may need to perform urgent or emergency preventative maintenance ("Emergency Maintenance"), such as installing security patches. Bazaarvoice may not be able to provide clients advance notice in cases of Emergency Maintenance. Disruptions due to Emergency Maintenance are excluded from our Availability Target.
2. MODERATION SERVICE LEVEL AGREEMENT
Bazaarvoice strives to maintain a 72-hour (i.e., 3 business day) moderation window ("Moderation Window") from the time that a review was submitted by a customer. The following exceptions to this policy are as follows:
- Unusually large review rates from email or promotional campaigns are not covered under SLA, unless at least 14 days advanced notice was given for start/end date, expected volume and a sample of the campaign.
- Escalated reviews are exempt from this SLA.