Engagement Product Appendix
Engagement Product Appendices Archive can be found here.
1. INITIAL PROVISIONS
1.1 This Engagement Product Appendix forms an integral part of the Sales Order to which they are attached and shall be read in conjunction with such Sales Order and the governing Agreement, as defined in the Sales Order.
2.1 Capitalized words not defined in this Engagement Product Appendix shall have the meaning ascribed to such words in the applicable Sales Order or Agreement. In this Engagement Product Appendix, unless the context requires otherwise, the words and expressions set out in herein shall have the meaning ascribed to them herein:
“Agreement” means the Master Subscription Agreement and any sales order or any other ordering document to which this Product Appendix is attached, entered into by and between Bloomreach and Customer.
“Communication Services” means mailing, SMS, WhatsApp or other messaging services that may be provided by Bloomreach to the Customer based on the Sales Order.
“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.
“Engagement Product Appendix” means this Engagement Product Appendix.
“Maximum Event Storage” or “MES” means the maximum amount of data points (Events) attached to the Account that can be stored in the Bloomreach platform at any given time.
“Monthly Processed Events” or “MPE” mean all data points (Events) attached to the Account created 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, provided by Bloomreach to the Customer along with the Subscription Services on the basis of the Sales Order.
“Services” means Subscription Services, On-demand Services, Communication Services and any other services provided to Customer by Bloomreach.
“Subscription Services” means software as a service as specified in the respective Sales Order.
“Territory” means (i) the European Economic Area and the UK, or (ii) the United States of America if Bloomreach's country of incorporation, unless otherwise agreed between the Parties.
“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 to the respective Sales Order or Documentation. If the Sales Order does not stipulate the maximum Event capacity, Monthly Processed Events, Maximum Event Storage, a limitation of one hundred million Events shall apply.
3. ENGAGEMENT SUBSCRIPTION SERVICES AND COMMUNICATION SERVICES
3.1 Availability. Bloomreach will provide Services in the Territory. The Services shall be made available by Bloomreach subject to any unavailability caused by any computer, communications, internet service or hosting/mailing facility failures.
3.3 Without prejudice to any other terms of the Agreement, by integrating a different product or service, including any third party service with Bloomreach Engagement, the Customer authorizes Bloomreach to export Customer’s data including any Personal Data as defined in the DPA from Bloomreach to the respective product or service and provide users of Customer with access to the respective product or service.
3.4 Subcontractors. If Bloomreach provides mailing, SMS, WhatsApp, and/or Hosting services to the Customer under an applicable Sales Order, Customer acknowledges that Bloomreach uses a third-party provider for said services, whose details are available in the following list: https://www.bloomreach.com/en/legal/subprocessors. Some of these services may be subject to additional third party terms, for instance:
(a) WhatsApp. If Bloomreach provides WhatsApp services to the Customer or if Customer integrates Subscription Services with WhatsApp messaging platform during the Subscription Term, Customer hereby agrees to accept and comply with the following terms and conditions relating to the use of WhatsApp services: (i) WhatsApp Commerce Policy https://www.whatsapp.com/legal/commerce-policy/; and (ii) WhatsApp Business Terms of Service https://www.whatsapp.com/legal/business-terms/; (together the “WhatsApp Terms”)
(b) 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.
(c) Bloomreach BigQuery. By using Bloomreach BigQuery the Customer instructs Bloomreach to repeatedly export Customer’s data including Personal Data from Bloomreach's storage to Bloomreach BigQuery (import) and provide users of Customer with access to Bloomreach BigQuery. The Customer hereby acknowledges and agrees that (i) Bloomreach uses Google LLC's Affiliate established in the EU (“Google”) as a sub-processor for the purpose of the provision of Bloomreach BigQuery services; (ii) Google provides its services on the basis of the terms available at https://cloud.google.com/product-terms/ (“Terms”), and (iii) the Customer has read and agreed to the Terms. The Customer agrees that the Bloomreach's representative specified in the Agreement (or other Bloomreach's representative as may be notified by Bloomreach in advance) is eligible to provide new users of the Customer with view-only access to Bloomreach BigQuery. The Agreement shall specify the contact person from the Customer’s side that shall handle all communication with regards to Bloomreach BigQuery.
4. USAGE ALLOWANCES
4.1 Exceeded Usage Allowance. Exceeding of the Usage Allowances may result in limitation or unavailability of the Services or be subject to additional Fees. Any service level commitments provided in the SLA shall not apply if the Customer exceeds the contracted Usage Allowances.
5. TCPA COMPLIANCE
5.1 Compliance with TCPA. Customer understands and agrees that Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), and other federal and state laws (collectively, the “Telephonic Communications Laws”) impose (a) restrictions on certain calls and text messages, and (b) requirements upon entities making certain calls and text messages. Customer and Bloomreach understand and agree that Customer shall be exclusively responsible for compliance with all applicable Telephone Communications Laws in connection with any calls, text messages or other telephonic communications made by or on behalf of Customer using the Services (collectively, “Customer-related Communications”). Customer and Bloomreach understand and agree that (a) Customer is and shall remain solely responsible throughout the Term of this Agreement for assessing and determining whether the process for securing consent from the end user complies with the Telephonic Communications Laws, and (b) Customer has not relied (and will not in the future rely) upon Bloomreach in any respect in making such Customer assessment and determination. Customer shall indemnify and hold Bloomreach harmless from any claim arising from or relating to the form, content, timing or recipient of any call or text made by or on behalf of Customer containing Customer-related Communications.
6. SUSPENSION, TERMINATION AND RETURN OF DATA
6.1 Suspension and termination for non-payment or exceeding Usage Allowances. If any amount owed by the Customer under the Sales Order is overdue, without prejudice to any termination rights of Bloomreach arising from the Sales Order, or if the Customer exceeds the contracted Usage Allowances, Bloomreach may suspend the provision of the Subscription Services to the Customer until the owed amounts are paid in full or until the Customer conforms to the contracted Usage Allowances, as applicable. The suspension may take several forms: (i) soft-lock or (ii) hard-lock of the Customer’s 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.
6.2 Return of data. Upon the request of the Customer that is made (i) any time during the Subscription Term, or (ii) within thirty (30) days after the effective date of termination or the expiration of the Sales Order, 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 such 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 within commercially reasonable time; 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 section shall not apply to the following: (a) data in audit logs; (b) aggregated data and (c) data stored for the statistical purposes.
7. SPECIAL TERMS FOR ON-DEMAND SERVICES
7.1 Provision of On-Demand Services. Bloomreach may utilize the services of independent consultants and third party contractors (the “Consultants”) from time to time to perform or assist Bloomreach in performing the On-demand Services.
7.2 Acceptance and Takeover. If no 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 an Acceptance Criteria is defined the acceptance procedure involves comparing the basic properties of the On-demand Services with the criteria specified in the respective Sales Order (the “Acceptance Criteria”). If the On-demand Services do not satisfy the Acceptance Criteria, then: (a) within five (5) business days after delivery, the Customer shall itemize in writing each failure to satisfy the Acceptance Criteria; the formulation of the Customer’s comments must always contain at least the following elements: (i) the name of the output to which the comment applies; (ii) the content of the comments should be specifically formulated, i.e. so that it is clear in where the corrections lie to be able to incorporate it 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. For the avoidance of doubt 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.