Engagement Product Appendix
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 Capitalised 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;
“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 Subscription Services. Bloomreach shall make the Subscription Services available to the Customer subject to this Engagement Product Appendix and in accordance with any Usage Allowances. The Customer shall use the Subscription Services in compliance with the AUP.
3.2 Availability of Services. 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, or denial of service attacks. The Subscription Services may be temporarily limited or interrupted due to maintenance, repair, modifications, upgrades, or relocation, subject to the applicable SLA as specified in the Agreement. Bloomreach does not warrant that the Bloomreach platform will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Bloomreach platform.
3.3 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 and the like (collectively, “Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, Account, passwords (including but not limited to administrative and user passwords) and files, and for all use of the Account or the Equipment.
3.5 Subcontractors. Bloomreach may use subcontractors to provide certain parts of the Services, if ordered by the Customer. Certain Services may be subject to additional terms, for instance:
(a) Mailing. If Bloomreach provides mailing services to the Customer, the Customer acknowledges that Bloomreach uses a third-party provider for mailing services, whose details are available in the list available at https://bloomreach.com/terms-of-service/list_of_sub-processors.pdf. The list of sub-processors shall form an integral part of this Engagement Product Appendix.
(b) SMS. If Bloomreach provides SMS services to the Customer, the Customer acknowledges that Bloomreach uses a third-party provider for SMS services, whose details are available in the list available at https://exponea.com/terms-of-service/list_of_sub-processors.pdf.
(c) WhatsApp. If Bloomreach provides WhatsApp services to the Customer or if Customer integrates Subscription Services with WhatsApp messaging platform during the Subscription Term, the provision of the WhatsApp services is subject to additional terms that are specified in the Sales Order.
(d) 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.
3.6 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.
4. USAGE ALLOWANCES
4.1. Exceeding Usage Allowances. The Customer shall use the Services within the Usage Allowances stipulated in the Sales Order and Engagement Product Appendix. Any warranties, including any warranties related to performance of the Services or any SLAs (if agreed), provided by Bloomreach in the Sales Order shall be subject to Customer’s compliance with the Usage Allowances and the AUP. Exceeding of the Usage Allowances may result in limitation or unavailability of the Services or be subject to additional Fees.
4.2. Future-focused pricing. The Agreement may specify various Subscription Services tiers and the pricing applicable to such tiers (“future-focused pricing”); in that event, if the Customers exceeds the contracted Usage Allowances and reaches a higher Subscription Services tier, future-focused pricing will apply instead of Section 4.1 above.
5. SUSPENSION, TERMINATION AND RETURN OF DATA
5.1 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.
5.2 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://exponea.com/terms-of-service/list_of_sub-processors.pdf , 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 shall not apply to the following: (a) data in audit logs; (b) aggregated data and (c) data stored for the statistical purposes.
6. SPECIAL TERMS FOR ON-DEMAND SERVICES
6.1 Types and manner of provision of On-Demand Services. Bloomreach may provide the Customer in particular but not exclusively with the following On-Demand Service: consulting services, setup, dedicated support, dedicated consultant, project scope, Bloomreach academy and other services specified in the Sales Order. Bloomreach shall provide these On-demand Services in a reasonable, professional manner in keeping with professional standards and practices. Unless agreed otherwise in the respective Sales Order, Bloomreach shall be entitled to, at its sole discretion, determine the methods and means for performing the On-demand Services and developing any related deliverables. 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.
6.2 Acceptance and Takeover. The acceptance procedure involves comparing the basic properties of the respective On-demand Services with the criteria specified in the respective Sales Order (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 without any undue delay but by 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); 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. 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.