V-SMILE by Vasavi Active Networks – Terms of Service for Customers
This Agreement is entered into by and between you (“you”, “your” or “Partner”) and Vasavi Active Networks with principal office at Chennai 600026, India (referred to herein as “Vasavi Active Networks”, “V-SMILE”, “we” or “us”) and contains the terms and conditions that govern your participation in the V-SMILE Business Network (“VBN”) and incorporates the terms of the following additional documents, including all future amendments or modifications thereto (collectively with this document, the “Agreement”):
– V-SMILE Branding Requirements
By checking the box indicating that you agree to all of the terms and conditions of the Agreement or by continuing to participate in VBN following a change in the Agreement, you agree to be bound by the Agreement. You additionally represent that you lawfully are able to enter into this Agreement on your own behalf or if you are entering into this Agreement on behalf of a legal entity, that you have the authority to bind such entity and that this Agreement is fully binding upon the entity.
- V-SMILE Partner Network (VBN)
The purpose of VBN is to permit you to advertise Deals on the V-SMILE mobile-application/website and to create a mobile based fan-club for your end users.
Capitalized terms used but not otherwise defined herein shall have the following meanings:
- A “Profile Page” is a page in V-SMILE website or mobile application that lists information about your profile and your published deals.
- A “Deal” is any item sold through the Website or a reward offered to a customer.
- iii. “V-SMILE Brand Features” means V-SMILE trademarks, logos or designs
- “V-SMILE Content” means any content or material of V-SMILE or its licensors provided or made available to you in connection with VBN and/or any Deal, including any data, images, text, link formats, widgets, links, or API material.
- “Website” means any website or any internetconnected applications owned by V-SMILE or one of its affiliates or subsidiaries.
In order to participate in VBN, you must first create a VBN account and complete an application that is available at www.vsmile.vasavians.com. You must provide complete and accurate information about you, including contact information, email address and your business locations as part of the application process. You must keep all account information uptodate at all times. V-SMILE reserves the right to refuse participation to any applicant or participant at any time in its sole discretion. If V-SMILE rejects your application, you may reapply at any time; provided, however, that a rejection due to an account being previously terminated for breach of this Agreement shall not be eligible for reapplication.
By participating in VBN, you agree to comply with this Agreement. You also agree that failure to comply may result in V-SMILE terminating this Agreement with you. You will be deemed to have received all notifications and communications sent to the email address associated with your account, whether you actually receive any such notifications and communications from your email service provider or not.
- Compliance with Laws.
You are solely responsible for complying with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions and any other requirements of statutorily recognized authorities in force or applicable in India or in any other applicable territory (“Laws”), and Laws pertaining to consumer protection, data privacy and security, advertising, and electronic mail marketing. You further warrant that no promotion method used by you will reference, implicate, or suggest association with or imply endorsement by V-SMILE.
- Prohibited Activities.
- You will not display any V-SMILE Content on sites that contain any pornographic, haterelated, violent or illegal content or that promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- You will not bid for search engine placement using the term “V-SMILE”, “V-SMILE Goods”, “V-SMILE Rewards”, “V-SMILE.com” or any variation or misspelling thereof or of any V-SMILE branded property, mark, slogan or other intellectual property, whether alone or in combination with any other word or phrase, including but not limited to vanity URLs or headlines that would be associated with any resulting paid placement on the search engine.
- You will not cause any transactions to be made that are not in good faith.
- Your promotional activities will be executed and delivered in a manner that is ethical and legal and does not mislead your end users.
- You may not engage in promotional activities, use promotional techniques, or engage in any other activity on websites that violates intellectual property or proprietary rights of a V-SMILE or a third party.
- You will not generate or send any email messages using or containing V-SMILE’s API or the V-SMILE Content or any variation thereof, including V-SMILE’s name or logo, without first obtaining in advance V-SMILE’s express written approval.
- You will not engage in any activities that could, in V-SMILE’s reasonable judgement, reflect poorly on V-SMILE or otherwise disparage or devalue V-SMILE’s reputation or goodwill.
- You will not include any trademark of V-SMILE or its affiliates, or a variant or misspelling of a trademark of V-SMILE or its affiliates, in any domain name, subdomain name, or in any username, group name, email address, or social network identifier.
- You will not cache, record, prefetch, or otherwise store any portion of the V-SMILE Content, or attempt or provide a means to execute any “bulk download” operations.
- You will not use or display any V-SMILE Brand Features or V-SMILE Content in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between you or a third party and V-SMILE.
- You will not wrap or frame your website in any manner or in any way copy or resemble the look and feel of the Website, or create the impression that your website is one of V-SMILE’s Websites or is part of V-SMILE’s Websites, unless V-SMILE has expressly approved such activities in advance.
- You will not, without the prior written consent of an authorized V-SMILE representative, aggregate, consolidate or otherwise arrange, display or make available V-SMILE Content in combination with any V-SMILE competitors’ content (as determined solely by V-SMILE), for any commercial purpose or in any manner that V-SMILE determines could diminish the value or integrity of its business or brand.
- You will not use V-SMILE Content to update or create your own database of business listing information, or use it to build an email list.
- You will not create, disclose, or sell any information or metrics about, or perform any statistical analysis of Deals or the V-SMILE Content.
- You will not use the V-SMILE Content on behalf of any third party.
- You will not use the V-SMILE Content to market to or divert V-SMILE merchants or V-SMILE customers from V-SMILE services.
- You will not engage in cookie stuffing.
- You will not cause any software to be downloaded or installed without an end user’s prior affirmative consent.
- Term and Termination.
The term of this Agreement begins when V-SMILE accepts your application and will end when terminated in accordance with this Agreement. Either party may terminate this Agreement upon seven (7) days written notice. V-SMILE reserves the right to terminate this Agreement if you breach the terms of the Agreement or engage in any of the prohibited activities by giving you written notice of the termination at any time. Any termination of this Agreement also immediately terminates any licenses granted to you hereunder and requires you to immediately remove all licensed content from your website and destroy any other materials provided or made available by or on behalf of us to you under this Agreement. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement (such as, but not limited to, confidentiality, publicity, indemnification, limitation of liability and disclaimers) shall survive termination of this Agreement.
- Intellectual Property.
As between you and V-SMILE, any and all V-SMILE Content, is and will at all times remain the sole and exclusive property of V-SMILE and is protected by applicable intellectual property laws and treaties (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that at no time during or after the termination of this Agreement will you attempt to register any trademarks (including domain names) that are derived from or confusingly similar to those of V-SMILE, its affiliates, or its subsidiaries or to the V-SMILE Content, or will you buy or otherwise arrange to use any such domains to redirect internet content to your website.
V-SMILE will own all right, title, and interest (including all intellectual property rights) in and to all information that is created or collected in connection with this Agreement, including without limitation, (a) any contact information collected from any end user who joins your club through V-SMILE mobile application, and (b) any information regarding clickthrough rates or product purchases by end users (“Sales Information”). You acknowledge the validity and V-SMILE’s ownership of the API, V-SMILE Content, Customer Information, and Sales Information. You understand and agree that you do not gain any intellectual property rights in the API, V-SMILE Content, Customer Information, or Sales Information by accessing or downloading these items. Should you develop, adopt, or acquire, directly or indirectly, any right, title, or interest in the API, V-SMILE Content, Customer Information or Sales Information, you hereby assign, transfer, and convey to V-SMILE all such right, title, and interest to the API, V-SMILE Content, Customer Information, and Sales Information.
You agree that you will not, nor assist others to, challenge V-SMILE’s ownership of the V-SMILE Brand Features, API, V-SMILE Content, Customer Information or Sales Information. You agree that at no time during or after the termination of this Agreement will you use, register, or apply to register any trademark, service mark, logo, icon, trade name, trade dress, name, title, copyright, or domain name containing the V-SMILE Content or any mark or other intellectual property that is confusingly similar thereto or dilutive thereof. If you do, you agree to transfer any registrations, at your expense, to V-SMILE at V-SMILE’s request and to cooperate by providing any information, signing any documents and providing appropriate authorizations necessary to accomplish the transfer. You shall not remove or alter any trademark or copyright notices or engage, participate, or otherwise become involved in any activity or course of action that diminishes or tarnishes the image or reputation of V-SMILE. You acknowledge that your use of V-SMILE Content and V-SMILE intellectual property hereunder inures to the benefit of and goodwill of V-SMILE.
If you provide V-SMILE or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a V-SMILE product or service or otherwise in connection with this Agreement, any V-SMILE Content, or your participation in VBN, (collectively, “Feedback”), you hereby irrevocably assign to us all right, title, and interest in and to Feedback. In the event your assignment to us is invalid for any reason, you hereby irrevocably grant V-SMILE and its affiliates a perpetual, paidup royaltyfree, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Feedback in any manner; (b) adapt, modify, reformat, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Feedback is your original work, or you obtained your submission in a lawful manner; and (z) V-SMILE and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect or maintain our rights in and to Feedback.
- Limited License.
Subject to the terms set forth in the V-SMILE Branding Requirements and elsewhere in this Agreement, V-SMILE grants you a personal, limited, nonexclusive, revocable, nonsublicensable, nontransferable, worldwide, royaltyfree license for the duration of your participation in VBN to display the V-SMILE Content on your website solely for the purpose of your participation in VBN. You may not use the V-SMILE Content for any other purpose without V-SMILE’s prior written consent. These license rights are further limited by the restrictions set forth elsewhere in this Agreement, and all rights not expressly granted to you hereunder are reserved by V-SMILE. You acknowledge and agree that V-SMILE may monitor your website in order to confirm compliance with this Agreement and the V-SMILE Branding Requirements and may request information at any time to support your compliance with this Agreement. Should you fail to provide responsive information, or if V-SMILE, in its sole discretion, determines that you are not complying with this Agreement, V-SMILE may terminate your license in accordance with Section 6. Nothing in this Agreement shall be construed to prevent V-SMILE from granting other licenses for, or itself making use of, the API, V-SMILE Content, or other features associated with the V-SMILE brand in any manner whatsoever.
You agree that you shall not issue any press release or other public statement relating to this Agreement without the express prior written consent of an authorized V-SMILE representative.
In connection with your participation in VBN, you may be provided with data and information that is designated as confidential or that is reasonably understood to be proprietary or confidential (the “Confidential Information”). You agree to keep the Confidential Information confidential. In no event will you use less than reasonable care to prevent the unauthorized disclosure of the Confidential Information to third parties. If you become aware of any unauthorized use or disclosure of the Confidential Information, you shall promptly and fully notify V-SMILE of all facts known to it concerning such unauthorized use or disclosure and shall cooperate with V-SMILE to seek a protective order or other appropriate remedy to protect such Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of you; (ii) you had lawfully in your possession without an obligation of confidentiality to V-SMILE prior to disclosure hereunder and not otherwise in breach of this Agreement; (iii) you can demonstrate to have independently developed without the use of any Confidential Information of V-SMILE as evidenced by written documentation; or (iv) you lawfully obtain from a third party who has the right to transfer or disclose it and who provides it without any obligation to maintain the confidentiality of such information.
- Representations and Warranties. You represent and warrant that
(i) all of the information provided by you to V-SMILE is correct and current;
(ii) you are over 18 years of age;
(iii) you have all necessary right, power, and authority to enter into this Agreement;
(iv) any promotional activities used or created by you do not and will not infringe on V-SMILE’s or any third party’s intellectual property or proprietary rights; and
(v) you are acting in your professional capacity and not as a consumer.
You agree that your participation in VBN is at your own risk and you agree to hold harmless, defend (subject to V-SMILE’s right to participate with counsel it selects) and indemnify V-SMILE and its subsidiaries, affiliates, directors, officers, agents, employees and suppliers from and against any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fee) arising from, or in any way related to your or your end users’ use of or participation in VBN and/or your breach of this Agreement. You will not agree to any settlement that imposes any obligation on V-SMILE without V-SMILE’s prior consent.
- Limitation of Liability.
IN NO EVENT SHALL V-SMILE OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF USE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. V-SMILE’S SOLE AND COMPLETE LIABILITY TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID TO YOU PURSUANT TO THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRECEDING YOUR CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE MADE BY YOU WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM OR OF ANY TERMINATION OF THIS AGREEMENT. IF SUCH CLAIM IS NOT FILED THEN THAT CLAIM IS BARRED PERMANENTLY.
VBN, THE WEBSITE AND THE V-SMILE BRAND FEATURES ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” V-SMILE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND DUTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, INTERFERENCE WITH QUIET ENJOYMENT OR NONINFRINGEMENT. V-SMILE DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE SHALL BE UNINTERRUPTED OR ERRORFREE, OR THAT PARTICIPATION IN VBN WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU. FOR THE AVOIDANCE OF DOUBT, V-SMILE DOES NOT GUARANTEE VBN OR THE WEBSITE WILL BE OPERABLE AT ALL TIMES, INCLUDING OUTAGES (I) TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS; (II) CAUSED BY ANY FAILURES TO YOUR EQUIPMENT, SYSTEMS OR LOCAL ACCESS SERVICES; OR (III) FOR PREVIOUSLY SCHEDULED MAINTENANCE.
This Agreement constitutes the entire agreement between the parties. V-SMILE may amend or modify this Agreement at any time. You will be notified of amended or modified terms by email and will have seven (7) days to opt out of accepting the amended or revised terms and terminating your account with and participation in VBN. Your continued participation in VBN after V-SMILE has updated terms will constitute acceptance of the amended or modified Agreement.
Neither party may assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent. Notwithstanding the foregoing, V-SMILE may assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business without notice to you.
- Force Majeure.
Whenever a period of time is herein prescribed for action to be taken by V-SMILE, V-SMILE shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time and any delays (including an allowance for holidays) due to strikes, riots, acts of God, war, governmental laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of V-SMILE.
- Waiver; Severability.
Any waiver of a provision of these terms must be in writing, expressly identify the provision to be waived and signed by an authorized representative of V-SMILE. Our failure to enforce, whether in one instance or repeated instances, your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. If any of the provisions of these terms are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court’s ruling. All remaining portions of these terms shall remain in full force and effect.
- Choice of Law; Venue.
The validity, interpretation and construction of this Agreement and all other related matters shall be governed and interpreted by the laws of India without regard to its conflict or choice of law principles. Venue for any disputes, controversies or claims arising out of or relating to this Agreement or the breach hereof, the rights granted or obligations undertaken herein, shall be limited to a central or state court located within Chennai – Tamil Nadu. Each Party hereby submits to the exclusive jurisdiction of such courts and you expressly waive and withdraw your rights under any law or statute conferring jurisdiction on the basis of nationality to courts other than those central or state courts located within Chennai – Tamil Nadu.
The parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between you and V-SMILE. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way. You acknowledge and agree that V-SMILE and its affiliates may at any time, directly or indirectly, solicit customer referrals on terms that may differ from those contained in this Agreement or may operate sites that are similar to or compete with your site. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected. The headings in this Agreement are inserted for reference only and are not to be considered in the interpretation or construction of the provisions thereof or hereof. In the event the terms of this Agreement conflict with any other terms or policies cited herein, this Agreement will control.