GENERAL TERMS AND CONDITIONS – BLOOMREACH ENGAGEMENT

Version: 2.10, GTC Effective Date: 1st March 2022

 

  1. INITIAL PROVISIONS

 

  1. These General Terms and Conditions govern any use of or access to the Services provided to the Customer through or in connection with the Bloomreach Engagement by Bloomreach Inc. or its Affiliate, as identified in the Agreement (“Bloomreach”). By concluding the Agreement, Bloomreach and the Customer undertake to be bound by the General Terms and Conditions. These Terms and Conditions shall form an inseparable part of the Agreement to which they are attached and referred to and shall be read in conjunction with the Agreement.

 

  1. The General Terms and Conditions are published at www.bloomreach.com/en/legal/msa/bloomreach-engagement-gtc.

 

  1. This version of the General Terms and Conditions is effective from the GTC Effective Date and applicable to all use of Bloomreach Engagement. These General Terms and Conditions completely replace any prior terms and conditions, including any previous version of the General Terms and Conditions, Terms of Platform, Terms of Use, Data Handling Policy, and IP Terms.

 

  1. DEFINITIONS

 

  1. In these General Terms and Conditions, unless the context requires otherwise, the words and expressions set out in this Clause 2.1 shall have the meaning ascribed to them herein:

 

Account    means the account created or authorised for the Customer in order to utilise the Services;

 

Affiliate    means any person or entity which, directly or indirectly, is in control of, is controlled by, or is under common control with such entity; for the purpose of this definition, "control" means the power, directly or indirectly, to either: (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such entity, or (b) direct or cause the direction of the management and policies of such entity whether by contract or otherwise;

 

Agreement    means an order form, sales order, reseller agreement, cooperation agreement, or any other agreement concluded between Bloomreach and the Customer based on which Services shall be provided;

 

Bloomreach Engagement” means customer data platform or customer data experience platform through, or in connection with, Bloomreach provides the Services to its Customers;

 

Business Day” means a day on which banks are open in the city, in which the seat of Bloomreach is located;

Communication Services” means mailing, SMS, WhatsApp, or other messaging services that may be provided by Bloomreach to the Customer based on the Agreement;

 

Confidential Information” means technical and non-technical information including patents, copyright, trade secrets, proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software, source documents, and formulas related to the current, future and proposed products and services, research, experimental work, development, design details and specifications, engineering, and information marked “confidential” or “proprietary” or which the recipient knows or has reason to know that the information shall be deemed confidential; for the avoidance of doubt, this term does not include any information that the receiving party may demonstrate by its written records: (a) was known to it prior to its disclosure by the disclosing party; (b) is or has become known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorised to make such disclosure; (d) has been independently developed by the receiving party; (e) has been approved for release with the written authorisation of the disclosing party; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt notice to enable the other party to seek a protective order or otherwise prevent such disclosure;

 

Customer    means the person or entity specified in the Agreement or, only if no Agreement is executed, any person using the Services;

 

Customer Data” means the data of the clients of the Customer (and the respective Customer’s data, where relevant) to be provided by the Customer to Bloomreach within the use of the Services and processed by Bloomreach under the terms of the Data Processing Addendum;

 

Effective Date” means the date specified in the respective Agreement as the date from which the Subscription Services are provided by Bloomreach to the Customer; in the absence of such date, the Subscription Services are provided from the execution of the Agreement;

 

Event    means any user interaction with content processed, tracked, or generated in connection with the Services, including but not limited to email or SMS notifications, page visits, transactions, or data input;

 

Fees    means the Subscription Fees, fees for On-demand Services, fees for Communication Services, and any other types of fees that may be agreed in the Agreement;

 

"Force Majeure Event" means event beyond control of either Party, including, without limitation to, failure of power grid, failure of the Internet, natural disaster, weather event, war, riot, insurrection, epidemic, strikes, floods, acts of terror, a third party breach, failures, downtime, or delays by an internet service provider or hosting provider, or labour action, terrorism, denial of service attacks or other events beyond such Party’s reasonable control;

 

General Terms and Conditions” means these General Terms and Conditions – Bloomreach Engagement which are also available on the relevant Bloomreach’s website;

 

GTC Effective Date    means the date specified in the heading of these General Terms and Conditions;

 

Guides    means user guides, cookbook, technical documentation, and FAQs designed for some or all of the Services as provided to the Customer or published by Bloomreach on https://documentation.bloomreach.com/ 

 

Legislation    means all generally binding legal regulations in the country or state (as applicable) of registration of Bloomreach, provided that such regulation directly or indirectly applies to the Parties’ legal relationships or the Services;

 

Maximum Event Storage” or “MES” means the maximum amount of data points (Events) attached to the Account that can be stored in the Bloomreach Engagement at any given time;

 

Monthly Processed Events” or “MPE” mean all data points (Events) attached to the Account via API or any other import source in the respective calendar month;

 

On-demand Services” means additional services, other than the Subscription Services or Communication Services, such as setup consulting, business planning, training, other consulting, Bloomreach Academy, implementation, maintenance, or testing.

 

Parties    jointly refers to Bloomreach and the Customer;

 

Services    means Subscription Services, On-demand Services, Communication Services and any other services provided to the Customer by Bloomreach through or in connection with the Bloomreach Engagement; 

SLA    means a service level agreement which might be provided by Bloomreach to the Customer for the Services;

 

Subscription Fees” means the fees for the Subscription Services as stipulated in the Agreement;

 

Subscription Services” means software as a service as specified in the respective Agreement;

 

Territory    means (i) the European Economic Area and the UK, or (ii) the United States of America if Bloomreach’s country of incorporation;

 

Term    means either the Initial Term and any Renewal Term as defined in Clause 11 herein; and

 

Usage Allowances” means any limitations that Services are or may be subject to, including, but not limited to, Monthly Processed Events, Maximum Event Storage, the maximum Event capacity, limit of data queries, the number of users, campaign actions contacts, emails/SMS, IP addresses, scenarios, imports, or any other limitations pursuant in the respective Agreement or Guides. If the Agreement does not stipulate the maximum Event capacity, Monthly Processed Events, Maximum Event Storage, a limitation of one hundred million Events shall apply.

 

  1. SERVICES, AVAILABILITY AND SUPPORT

 

  1. Subscription Services. Subject to these General Terms and Conditions and in accordance with the Usage Allowances, Bloomreach shall make the Subscription Services available to the Customer and provide the Customer (in addition to the Subscription Services) with other Services as stipulated in the Agreement. The Customer shall pay Bloomreach the Fees set forth in the Agreement in line with the payment terms set out in Clause 4 herein. The Customer shall use the Services in compliance with the Acceptable Use Policy available at https://www.bloomreach.com/en/legal/bloomreach-engagement-aup. The Acceptable Use Policy forms an integral part of these General Terms and Conditions. 

 

  1. Account. As part of the registration process, the Customer shall identify an administrative username and password for the Account.

 

  1. Availability. Bloomreach shall provide the Customer with the Subscription Services within the Territory. The Services shall be made available by Bloomreach subject to any unavailability caused by circumstances beyond Bloomreach’s reasonable control, including any Force Majeure Event, any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power, or other systems not within Bloomreach’s possession or reasonable control. The Customer acknowledges that availability of the Services depends on the Customer’s compliance with the Usage Allowances. Therefore, exceeding the Usage Allowances may result in limitation or unavailability of the Services. The Subscription Services may be temporarily limited or interrupted due to maintenance, repair, modifications, upgrades, or relocation. Unless otherwise agreed in an SLA, Bloomreach shall undertake reasonable endeavours to notify the Customer of scheduled and unscheduled outages that are expected to take more than four (4) hours and that may affect the Subscription Services.

 

  1. Equipment. The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, but not limited to modems, hardware, servers, software, operating systems, networking, web servers (collectively, “Equipment”). The Customer shall also be responsible for maintaining the security and all use of the Equipment, the Account, passwords (including but not limited to administrative and user passwords), and files.

 

  1. API – third party services. As part of the Services provided, Bloomreach may also provide certain services aimed at connecting the Customer to the services of other providers (such as email, WhatsApp, SMS, or other messaging service provided by providers of messaging platforms). The Customer shall be solely responsible for the content of email, SMS, WhatsApp, and other messages sent as part of the Services. Unless agreed otherwise in the respective Agreement, Bloomreach provides integration only, not service itself and as such Bloomreach provides only the API to connect these third-party services to the Services solely in accordance with the Terms of Use for Third Party Integrations available at https://www.bloomreach.com/en/legal/bloomreach-engagement-integration-terms.

 

The Terms of Use for Third Party Integrations form an integral part of these General Terms and Conditions.

 

  1. Subcontractors. Bloomreach may, if ordered by the Customer, use subcontractors to provide certain parts of the Services. Certain Services may be subject to additional terms, for instance:

 

  1. Mailing. This Clause 3.6 (a) applies only if the Agreement specifically stipulates that Bloomreach will provide mailing services. The Customer acknowledges that Bloomreach uses a third-party provider for mailing services, whose details are available in the list available at     https://www.bloomreach.com/en/legal/subprocessors. The List of sub-processors shall form an integral part of these General Terms and Conditions.

 

  1. SMS. This Clause 3.6 (b) applies only if the Agreement specifically stipulates that Bloomreach will provide SMS services. The Customer acknowledges that Bloomreach uses a third-party provider for SMS services, whose details are available in the list available at https://www.bloomreach.com/en/legal/subprocessors.

 

  1. WhatsApp. This Clause 3.6 (c) applies only if Parties specifically agree in the Agreement that Bloomreach provides WhatsApp services or if the Customer during the Term integrates with WhatsApp messaging platform. The provision of the WhatsApp services is subject to additional terms that are specified in the Agreement.

 

  1. Hosting. The Customer acknowledges that Bloomreach uses Google Cloud for the hosting of Bloomreach Engagement. The Customer agrees to be bound by the terms of Google Cloud available at https://cloud.google.com/terms/service-terms.

 

  1. Usage Allowances. The Customer shall use the Services within the Usage Allowances. Any warranties, including any warranties related to performance of the Services or any SLAs (if agreed), provided by Bloomreach in the Agreement shall be subject to the Customer’s compliance with the Usage Allowances and the Acceptable Use Policy available at https://www.bloomreach.com/en/legal/bloomreach-engagement-aup.

 

  1. PRICING POLICY, PAYMENT TERMS AND TAXES

 

  1. Fees. The Customer shall pay all the Fees. 

 

  1. Subscription Fees. Unless otherwise specified in the Agreement, the Subscription Fees shall be paid on an annual basis in advance based on the invoice issued by Bloomreach no later than fourteen (14) days from the Effective Date and subsequently from the beginning of the then-current billing cycle. The Subscription Fees are based on the respective Usage Allowances and not on actual usage. 

 

  1. Fees for Bloomreach Big Query. This Clause applies only if the Customer uses the Bloomreach Big Query as part of the Subscription Services. Bloomreach provides the Bloomreach Big Query subject to the limits agreed in the Agreement. The fees for Bloomreach Big Query shall be paid annually in advance. If the Customer exceeds the monthly limits of data queries specified in the Agreement, the Customer will be charged monthly in arrears for any over-usage for the respective month at the rate agreed in the Agreement. 

 

  1. Fees for Communication Services. The Customer shall pay fees for Communication Services based on its actual usage (Pay-as-you-go), unless the Parties specifically agree on prepayment in the Agreement. 

 

  1. Pay-as-you-go. If the Customer pays for Communication Services based on its actual usage (on a pay-as-you-go basis), the fees are payable monthly in arrears based on the invoice issued by Bloomreach no later than fourteen (14) days after the end of the respective calendar month. Bloomreach reserves the right to increase/decrease such fees subject to changes in fees by third party providers.

 

  1. Prepayment. If the Parties agreed on prepayment, the Customer shall prepay fees for the Communication Services for a specific period agreed in the Agreement. In such cases, the fees are payable as stipulated in the Agreement based on the invoice issued by Bloomreach no later than fourteen (14) days from the Effective Date and subsequently from the end of the then-current billing cycle. If the billing cycle is not specified in the Agreement, the fees for Communication Services shall be paid annually in advance. The pre-paid fees for Communication Services are non-refundable. The Customer is not entitled to transfer any unused quantity of Communication Services beyond the agreed pre-paid period.

 

  1. Fees for On-Demand Services. Fees for On-Demand Services are payable as specified in Clause 12.7 herein.

 

  1. Payment terms. All the Fees shall be due as specified in the Agreement. If the Agreement does not specify the payment terms, the Parties agree that the payment terms are 14 days from the issuance of the invoice. Any invoice may be issued also electronically.

 

  1. Other terms. Unless agreed otherwise in a specific case, payment obligations are non-cancellable and the Fees paid are non-refundable. All the Fees are payable in the currency stipulated in the Agreement. Any of the Fees not paid when due shall accrue default interest at the rate of 0.1% per day. If this exceeded the maximum default interest under the applicable law, the Customer shall pay only such maximum default interest. If agreed in the Agreement, Bloomreach (or its payment provider) shall be authorised to withdraw monies equal to the due Fees from a payment instrument saved and pre-authorized in the Customer’s account according to Clause 3.2 herein; in such cases, Bloomreach shall issue a standard invoice promptly after the payment is credited to the Bloomreach's bank account.

 

  1. Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to value-added, goods and services, harmonised, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (“Taxes”). The Customer is responsible for paying all Taxes associated with its purchases pursuant to the Agreement. If Bloomreach has a legal obligation to pay or collect Taxes for which Customer is responsible under this Clause 4.98, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides Bloomreach with a valid tax exemption certificate authorised by the appropriate taxing authority. 

 

  1. Inflation. Bloomreach may increase with the effect as of each anniversary of the Effective Date its Fees over the prior year by 5%.

 

  1. Future Focused Pricing.   

 

  1. Tier of the Subscription Services.  The Agreement may specify various Subscription Services tiers and the pricing applicable to such tiers upon execution of the Agreement and in case of future upgrades (“future-focused pricing”).

 

  1. Calculation of MPE. MPE are contracted as a cumulative annual allocation and the Customer is eligible to create more Events per month than the number of purchased MPE specified in the Agreement provided that the Customer will not exceed the annual allocation limits of MPE. The cumulative annual allocation of MPE is calculated as the purchased MPE multiplied by 12.

 

  1. Resetting. The cumulative annual allocation of MPE is reset on each anniversary of the Effective Date. 

 

  1. Over-usage of cumulative annual allocation limits of MPE. If the Customer exceeds the cumulative annual allocation limit of MPE, Bloomreach shall notify the Customer thereof via email or via In-App and propose possible solutions to the Customer, which may consist mainly, but not exclusively, of increasing the contracted volume of MPE Usage Allowances specified in the Agreement. If the Parties do not agree on a solution of the Customer’s over-usage without undue delay after Bloomreach's notification, and the Customer does not reduce its usage to conform to the agreed limit before the deadline communicated to the Customer by Bloomreach, Bloomreach shall be entitled to (a) suspend the provision of the Services provided based on the Agreement, or (b) terminate the Agreement with immediate effect.

 

  1. Reimbursement. Unless explicitly agreed otherwise in the Agreement, Bloomreach provides the Customer the Services online. If the Parties agree that some Services (e.g., training, consulting) will be provided in person at a certain location, the Customer agrees to reimburse Bloomreach for all reasonable costs associated therewith, mainly, but not exclusively, accommodation and travel expenses. 

 

  1. CONFIDENTIALITY

 

  1. Neither Party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to the Agreement or as expressly authorised in writing by the other Party. Each Party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances shall each Party use less than reasonable care. Neither Party shall disclose the other Party’s Confidential Information to any person or entity other than its officers, employees, consultants, contractors, the Affiliates, and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into confidentiality agreements at least as restrictive as the requirements in this Clause. 

 

  1. DELIVERY AND WARRANTY

 

  1. Access/Delivery of the Services. Bloomreach shall provide the Services in the scope agreed in the Agreement by creating or authorising an already existing Account.

 

  1. No Warranty. Unless stipulated otherwise in the Agreement, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, GUIDES AND BLOOMREACH’S CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BLOOMREACH EXPLICITLY DISCLAIMS ALL EXPRESS AND IMPLIED, STATUTORY, OR OTHERWISE CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BLOOMREACH MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, GUIDES, OR ANY BLOOMREACH’S CONTENT. Bloomreach makes no warranty that the Services, Guides or any Bloomreach’s content will meet the Customer's requirements or be available on an uninterrupted, secure, virus-free, or error-free basis. Bloomreach makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the Services, any service levels with respect to Services (unless agreed otherwise in an SLA), Guides or any Bloomreach’s content. The Customer acknowledges and agrees that if the Customer relies on any Services, any service levels with respect to Services (unless agreed otherwise in an SLA), Guides, or any Bloomreach’s content, the Customer does so solely at its own risk.

 

  1. LIABILITY

 

  1. Force majeure. Neither Party will be in violation of the Agreement or liable for damages if the failure to perform the obligation is due to a Force Majeure Event.

 

  1. Relief Events. Where Bloomreach’s provision of the Services or performance of any obligation set out herein is prevented as a direct or indirect result of any act or omission of the Customer (a “Relief Event”), Bloomreach shall be granted an extension to all affected deadlines equal to the length of delay caused by the Relief Event.

 

  1. Information duty. The Customer shall, without any undue delay, inform Bloomreach about the occurrence of any event that may affect the due fulfilment of the obligations set out herein and shall undertake its best endeavours to cooperate with Bloomreach to overcome such events.

 

  1. Liability limitation. UNLESS EXPLICITLY STIPULATED OTHERWISE IN THE AGREEMENT, NEITHER BLOOMREACH, ITS AFFILIATES, CONTRACTORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT COSTS OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LITIGATION COSTS, LOSS OF DATA OR GOODWILL OR PRODUCTION, OR  BUSINESS OPPORTUNITIES, OR REPUTATION, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE GENERAL TERMS AND CONDITIONS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLOOMREACH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. In no event shall Bloomreach be liable to the Customer for more than greater of (i) the amount of any actual direct damages up to the amount paid by the Customer hereunder for the Services giving rise to liability in the twelve (12) months preceding the first incident from which the liability arose, or (ii) 10,000 EUR (ten thousand euro). The Parties agree that this Clause represents a reasonable allocation of risks. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. HOWEVER, IN THESE JURISDICTIONS, THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION

 

  1. Intellectual Property. Bloomreach, and its suppliers or licensors, if applicable, retain all right, title and interest in and to the Services and any Guides. The Customer agrees that only Bloomreach (or its Affiliates) shall have the right to enhance or otherwise modify the Services. If the Customer provides Bloomreach with any reports of defects or suggests modifications (“Report”), Bloomreach shall have the right to use such Report, including incorporating such Report into its Services or other software products, without any obligation to the Customer. Unless specifically agreed otherwise in writing, Bloomreach reserves all right, title and interest, and grants to the Customer no licences of any kind, whether by implication or otherwise. Bloomreach shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements, or modifications thereto; (b) any software, applications, inventions, or other technology developed in connection with implementation Services or support by Bloomreach; and (c) information derived from aggregated and anonymised data, and (d) all intellectual property rights related to any of the foregoing.

 

  1. Data protection. Data protection is governed by the specific Data Processing Addendum which forms an integral part of the Agreement as attached in Annex 1. The Data Processing Addendum is available at https://www.bloomreach.com/en/legal/bloomreach-engagement-dpa 

 

  1. Artificial intelligence services. Notwithstanding anything to the contrary in the Agreement, Bloomreach shall have the right to collect and analyse anonymised aggregate data derived from the Customer Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Bloomreach will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and all capabilities of artificial intelligence that will increase the performance and effectiveness of the Customers’ campaigns or for other development, diagnostic and corrective purposes in connection with the Services and other Bloomreach’s offerings (or offering of its Affiliates), and (ii) make such data available in the aggregated and anonymised form via anonymised industry standard trends.
     

  2. Usage Data. The Customer acknowledges and agrees that provision of the Services involves, and the Customer authorises Bloomreach to: (a) collect usage data in connection with Customer’s use of the Services; (b) conduct Net Promoter Score and Customer satisfaction surveys, (c) release notes targeting and (d) use usage data, Net Promoter Score and Customer satisfaction data in connection with providing, analysing, and improving the Services; 

 

  1. REPRESENTATION, WARRANTIES AND RESTRICTIONS

 

  1. General. Each Party represents and warrants to the other Party that: (a) such Party is duly incorporated and validly existing in the country of its incorporation; and the execution, delivery and performance of the Agreement constitutes a legal, valid, and binding obligation of such Party; and (b) such Party has all requisite corporate power and financial capacity, and authority to execute, deliver, and perform its obligations under the Agreement.

 

  1. Restrictions. The Customer shall not (and shall not authorise any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the Services, except to the extent that enforcement of the foregoing restrictions is prohibited by applicable Legislation; (b) circumvent any user limits, Usage Allowances, or other timing, use, or functionality restrictions built into the Services; (c) remove any proprietary notices, labels, or marks from the Services; (d) frame or mirror any content forming part of the Services; (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, modules, functions, or graphics of the Services; (f) register, directly or indirectly make it possible to register, or in any way support a third party registration of trademarks, business names, or other designations of Bloomreach (or related or similar business names or other designations); or (g) use Bloomreach’s intellectual property rights (or any related or similar logos or trademarks of Bloomreach) for its benefit, e.g., by combination of Bloomreach's logos or trademarks with its own business or company name or its own products or services; (h) use the Services in a way that is prohibited by the Acceptable Use Policy available at https://www.bloomreach.com/en/legal/bloomreach-engagement-aup

 

  1. COMMUNICATION AND DELIVERY

 

  1. Addresses of the Customer. For the purposes of delivery, Bloomreach has been notified of the Customer’s mail and email addresses identified within its registration process or as may be amended within the Account. Unless the Agreement states otherwise, the Customer agrees that any communication from Bloomreach with respect to the Agreement may be delivered electronically to the Account or to the email address specified therein.

 

  1. Customer references. Bloomreach shall be entitled to publicly refer to the Customer as a user of the Services, and use Customer's trademark and logo in accordance with any guidelines which may be provided to Bloomreach by the Customer for this purpose.

 

  1. TERM, SUSPENSION AND TERMINATION

 

  1. Term. Unless the Agreement stipulates otherwise, the initial term of the Agreement shall be one (1) year from the Effective Date (“Initial Term”). This Agreement shall be automatically renewed for additional periods equal to the Initial Term (“Renewal Term”) unless either Party provides written notice of intent not to renew at least thirty (30) days prior to the expiration date of the Initial Term or the then-current Renewal Term, if any. Unless otherwise stated in the Agreement, renewal of promotional (i.e., discounted) Fees provided to the Customer in the Initial Term shall be subject to the consent of Bloomreach. 

 

  1. Suspension and termination for non-payment. If any amount owed by the Customer under the Agreement is overdue, Bloomreach shall send a notification to the Customer either via email or via In-App. If the Customer does not pay the Fees when due, Bloomreach may, without limiting its other rights and remedies, suspend the provision of the Services to the Customer until all due amounts are paid in full. The suspension may take the form of a soft-lock or a hard-lock of the Account. When the Account is soft-locked, the Customer does not have access to the Account, however, the data will be processed. When the Account is hard-locked, the Customer does not have access to the Account, and the data will not be processed. If, following the process pursuant to this Clause 11.2, the due amounts are not paid in full, Bloomreach may, at its sole and exclusive discretion, terminate the Agreement.

 

  1. Termination for change of General Terms and Conditions. If the Customer does not agree with a new version of the General Terms and Conditions communicated to the Customer pursuant to the Clause 13.10 herein and such change to the General Terms and Conditions constitutes the Substantial Deprecation (as defined below), the Customer shall have the right to terminate the Agreement in respect to the particular part of the Services subject to the Substantial Deprecation by delivering a termination notice to Bloomreach within thirty (30) days after the effective date of such new version of General Terms and Conditions.  In such a case, the Agreement is terminated in respect to the particular part of the Services at the end of the thirty (30) day period provided for the delivery of the termination notice. In case the Fees are stipulated in the manner that it cannot be divided into parts, the Parties undertake to negotiate about alternative services that Bloomreach can offer to the Customer instead of the substantially deprecated part. If no termination notice of the Customer is served and delivered to Bloomreach within the thirty (30) day deadline, the Customer is deemed to have accepted the new version of the General Terms and Conditions. After expiry of this deadline, the Customer is not entitled to terminate the Agreement for the reason specified in this Clause 11.3 The following situations shall be considered as “Substantial Deprecation” of the Services: (i) The feature has been replaced by a less powerful alternative feature; (ii) a future version of the Bloomreach tool will make major structural changes, making it impossible (or impractical) to support older features.

 

  1. Termination. The Agreement may, in addition to the reasons stipulated in Clauses 11.2 and 11.3 herein, be terminated as follows: (a) if either Party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receiving notice of the breach, the non-breaching Party may terminate the Agreement upon notice;  (b) if either Party becomes  the  subject  of  a  voluntary  or  involuntary  petition  in  bankruptcy  or  any  proceeding relating to insolvency, receivership, liquidation, or composition or the benefit of creditors, and such petition shall not be dismissed within sixty (60) days after the filing thereof, then the other Party may terminate the Agreement immediately upon notice; (c) if the Customer breaches the Code of Conduct published on www.bloomreach.com, Bloomreach may terminate the Agreement immediately upon notice; or (d) if change of control in Customer occurs, the Customer shall inform Bloomreach within thirty (30) days, and Bloomreach may terminate the Agreement within additional  thirty (30) days after the information about the change of control is delivered. In case the Customer does not inform Bloomreach about the occurrence of the change of control, and Bloomreach finds out independently, Bloomreach may terminate the Agreement within thirty (30) days after it gets familiar with the change of control; (e) if the Customer breaches the Acceptable Use Policy published at https://www.bloomreach.com/en/legal/bloomreach-engagement-aup, Bloomreach may terminate the Agreement immediately upon notice; Bloomreach shall notify the Customer of a breach of the Acceptable Use Policy prior to the termination, provided such notification is reasonable considering the nature of the Customer’s breach and potential damages that may be caused by such breach. For the avoidance of doubt, neither Party is entitled to terminate this Agreement without cause. Upon expiration or termination of the Agreement, the Customer shall cease all use of the Services, and shall promptly return all copies of the Guides to Bloomreach or otherwise destroy those copies and provide assurances (signed by an officer of the Customer) to Bloomreach that it has done so if requested by Bloomreach.

 

  1. Termination for exceeding the Usage Allowances. If the Customer exceeds (i) the cumulative annual allocation limit of MPE, Clause 4.10 d) herein shall apply, (ii) the limits of data queries applicable to the Bloomreach Big Query, Clause 4.3 herein shall apply, (iii) any other Usage Allowances stipulated in the Agreement, Bloomreach may work with the Customer to seek to reduce the usage of the Services so that it conforms to the agreed limit. Bloomreach may also send a written notice (email suffices) to the Customer determining a period within which the Customer shall conform to the Usage Allowances. Bloomreach shall have the right to terminate the Agreement with immediate effect if the Customer, despite being notified of exceeding the Usage Allowances, does not start using the Services within the Usage Allowances before the deadline specified in the respective notice. 

 

  1. Return of data. Upon the request of the Customer that is made (i) any time during the Term, or (ii) within thirty (30) days after the effective date of termination or the expiration of the Agreement, Bloomreach will make such Customer Data available to the Customer in a file for download in (.json) format together with any attachments in their native format. After such thirty (30) day period, Bloomreach shall have no obligation to maintain or provide any such Customer Data and may thereafter, unless legally prohibited from doing so, delete all Customer Data in Bloomreach’s systems, under Bloomreach’s control or otherwise in Bloomreach’s possession. Upon instruction of the Customer, Bloomreach shall, within commercially reasonable time, unless and to the extent legally prohibited from doing so, (i) delete all Customer Data in Bloomreach’s system, which were requested by the Customer, in accordance with applicable law; and (ii) instruct all subcontractors listed at https://www.bloomreach.com/en/legal/subprocessors, if applicable in the case of the respective Customer to delete Customer Data from the subcontractor’s system. For the avoidance of doubt, the Customer acknowledges that this Clause 11.6 shall not apply to the following: (a) data in audit logs; (b) aggregated data; and (c) data stored for the statistical purposes.

 

  1. SPECIFIC CONDITIONS FOR ON-DEMAND SERVICES

 

  1. Applicability. Clause 12 herein shall apply exclusively for the provision of the On-Demand Services.

 

  1. Ordering On-demand Services. Any On-demand Services (including any Deliverables) to be provided by Bloomreach to the Customer must be agreed to by both Parties in writing. 

 

  1. Types of On-Demand Services. Bloomreach may provide the Customer in particular, but not exclusively, with the following On-Demand Services: consulting services, setup, dedicated support, dedicated consultant, project scope, Bloomreach academy and other services specified in the Agreement. 

 

  1. Manner. Bloomreach shall provide the On-demand Services and develop any related deliverables described in the respective Agreement (the “Deliverables”). Bloomreach shall provide these On-demand Services in a reasonable, professional manner in keeping with professional standards and practices. Bloomreach shall be entitled to, at its sole discretion, determine the methods and means for performing the On-demand Services and developing Deliverables. 

 

  1. Consultants. The Customer acknowledges and agrees that Bloomreach may utilise the services of independent consultants and third party contractors (the “Consultants”) from time to time to perform, or to assist Bloomreach in performing the On-demand Services and develop the Deliverables. Personnel of Bloomreach and of the Consultants shall remain under the control of Bloomreach.

 

  1. Cooperation. The Customer acknowledges and agrees that performance of the On-demand Services is heavily dependent on the information and responses to be provided by the Customer. Accordingly, in addition to any specific responsibilities set out in the respective Agreement, the Customer shall: (a) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Bloomreach; (b) carry out reviews and respond to requests for approval and information on a timely basis; and (c) make available to Bloomreach all equipment, material, information, data, network access, or facilities that Bloomreach may reasonably require to carry out its obligations. The Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on Bloomreach’s performance of its activities under the Agreement, and Bloomreach shall not be liable for any delay caused by Customer’s failure to fulfil any of its requirements under the Agreement.

 

  1. Fees and Payment for On-demand Services. The Customer shall pay the Fees for On-Demand Services as agreed in the respective Agreement. Setup fee (if any) shall be paid based on the invoice issued by Bloomreach no later than fourteen (14) days from the Effective Date. The Parties acknowledge that any prepaid On-demand Services shall not be reimbursed, even if not utilised by the Customer, due to their typically lower price per unit. Any Fees for On-demand Services are payable in line with the Agreement. The Customer shall reimburse Bloomreach for all reasonable out-of-pocket expenses incurred by Bloomreach in the performance of the On-demand Services, provided that such expenses are approved by the Customer.

 

  1. Term and Termination. Clause 12 herein shall remain in effect only during the Term of the Agreement pursuant to Clause 11 herein. If the Customer terminates the Agreement (or a part thereof) pursuant to Clause 11.3 herein, the Customer shall pay Bloomreach the full Fee for On-demand Services performed (including all other costs for which Bloomreach has the right to reimbursement) up to the effective date of the termination of the relevant part of the Agreement; provided that if the Fee for Deliverables are based on identified milestones being achieved by Bloomreach, the Customer shall pay Bloomreach the pro-rated fee for the next scheduled milestone with such pro-rated fee to be determined based on the percentage of time between the commencement of work on such milestone and the effective date of termination. 

 

  1. Intellectual Property Rights. Bloomreach shall own all right, title and interest to all Deliverables. Bloomreach shall retain all right, title and interest to all of Bloomreach’s proprietary information and software (including but not limited to any modifications to the Services or the Guides). Subject to the payment of the applicable Fees set forth in the Agreement, Bloomreach grants to the Customer a worldwide, fully-paid up (such payment is already included in the Fees), non-exclusive, non-transferable licence to use the Deliverables for the purposes described in the accompanying Agreement. 

 

  1. No Legal Services. No warranty of any kind whatsoever, express or implied, is made or intended in connection with the consultations on marketing standards or data protection practices provided by Consultants to the Customer, as the Consultants cannot assess the implications of such consultations in the context of all Customers’ activities. Such consultations represent possible alternatives on how to solve the particular issue, whereas the Customer is advised and encouraged to consult any further steps that should be based on such recommendations with their legal counsel. Neither Bloomreach nor Consultants shall be liable for any incorrect advice, judgement, or consultation based on any inaccurate information furnished by the Customer, the Customer’s agents, or other Customer’s consultants.

 

  1. Acceptance and Takeover. Takeover of the On-demand Services of Bloomreach by the Customer shall follow the acceptance procedure set out in this Clause 12.11 The acceptance procedure involves comparing the basic properties of the respective On-demand Services with the criteria specified in the respective Agreement (the “Acceptance Criteria”). If no such Acceptance Criteria are agreed, then the respective On-demand Services are deemed to be accepted by the Customer immediately following their delivery by Bloomreach. If the On-demand Services do not satisfy the Acceptance Criteria, then: (a) the Customer shall itemise in writing each failure to satisfy the Acceptance Criteria no more than five (5) Business Days after delivery of such On-demand Services or their part (otherwise such On-demand Services are deemed to be accepted by the Customer) specifying at least the following elements: (i) the name of the output (whether Deliverables or otherwise) to which the comment applies; (ii)  proposed corrections specific enough to be able to incorporate them within such On-demand Services; (iii) guidelines detailing the progress of the implementation of the comments, or the characteristics of targets or the target state after the incorporation of comments; (b) Bloomreach shall use its best efforts to correct the On-demand Services and to deliver the On-demand Services to the Customer for re-testing and acceptance; and (c) the acceptance period shall be halted while Bloomreach is working on the corrections to the On-demand Services as part of the acceptance procedure. The period shall continue after the failure specified by Customer is corrected by Bloomreach. For the avoidance of doubt, (i) if at any time the Customer commences with the live operation of the whole or any part of the respective On-demand Services, then Customer shall be deemed to have accepted such On-demand Services; and (ii) any shortcomings that have no material effect on the standard functionality of the On-demand Services do not impede the delivery thereof and the deemed acceptance of the Services pursuant to this Clause 12.11. 

 

  1. FINAL PROVISIONS    
     

    1. Salvatory clause. If any provision in this Agreement is shown to be (or later becomes) invalid or inefficient or inapplicable, it will not affect other provisions hereof that will remain valid and effective. The Parties undertake to replace an invalid or ineffective provision with a new provision that best corresponds to the originally intended purpose of the invalid or ineffective provision within the period of thirty (30) days from the date of the delivery of the call of one Party to the other Party; otherwise a new provision will be determined by the respective court upon the proposal of one of the Parties.

 

  1. Set-off. The Customer is not authorised to offset any of its claims against any of Bloomreach’s claims nor is it authorised to retain payments, in any manner, intended for Bloomreach regardless of the nature or purpose of such payments. Bloomreach is authorised to offset its claims against claims of the Customer if the Customer is informed in advance of Bloomreach’s intention to offset; in the event of such offsetting, Bloomreach will notify the Customer of the reason for the offsetting as well as the identification of the claims to which the offsetting will apply, and the amounts of the claims and their due dates.

 

  1. Assignment. The Customer may assign or delegate the Agreement or any of its rights, interests, or obligations under the Agreement to any third party exclusively only with the prior written approval of Bloomreach. Customer hereby grants its consent to Bloomreach to assign or transfer the Agreement or any of its rights, interests, or obligations to any Bloomreach Affiliate or third party. 

 

  1. Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement. 

 

  1. No Third-Party Beneficiaries. The provisions of the Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights to any third party.

 

  1. Entire agreement. The Agreement contains the entire agreement and understanding amongst the Parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.

 

  1. Applicable law. The Agreement and any disputes and claims arising out of or in connection with its subject matter are governed and construed in accordance with the laws of the country or state (as applicable) of Bloomreach's seat, without regard to conflict-of-law provisions. 

 

  1. Jurisdiction. Any dispute arising from or in connection with the Agreement, including a dispute regarding the existence, validity or termination of the Agreement or the consequences of its nullity shall be finally decided by competent courts of the country or state (as applicable) of Bloomreach's seat. 

 

  1. Change of the General Terms and Conditions. Bloomreach may, at its sole discretion, issue new versions of the General Terms and Conditions and notify the Customer without undue delay to an email address identified within the registration process or in the Agreement. If the Customer does not agree with a new version of the General Terms and Conditions, the Customer shall notify Bloomreach within thirty (30) days of being notified by Bloomreach about the new version of the General Terms and Conditions, that it does not wish to be bound by the new version of the General Terms and Conditions. In such a case, subject to Clause 11.3 herein, the Agreement remains to be governed by the then current version of the General Terms and Conditions until the end of the then-current Term. Once a new Renewal Term commences, the Agreement shall be governed by the new version of the General Terms and Conditions regardless of any objection given by the Customer against the new version of the General Terms and Conditions.

 

  1. Prolongation of Notice Period. Any time during which a 30-day notification period pursuant to Clause 13.10 herein runs, Bloomreach shall have the right to prolong the notification period if Bloomreach reasonably believes that the prolongation is for the benefit of the Customer. In such a case, Bloomreach shall have the obligation to notify the Customer to an email address identified within the registration process. If the Customer does not agree with the prolongation of the notification period, the Customer shall notify Bloomreach within thirty (30) days, from receipt of the notification informing about the prolongation, that the Customer does not agree with the prolongation. In such a case, the initial 30-day notification period applies.