END USER AGREEMENT


 

This End User Agreement (“EUA”) between you (“End User”) and Bloomreach, Inc., located at 82 Pioneer Way, Mountain View, CA 94041 (if End User resides in the United States of America or Canada or Bloomreach B.V., located at Fred. Roeskestraat 109, 1076 EE, Amsterdam, The Netherlands (if End User resides outside of United States of America or Canada) (“Bloomreach”). “You” means the individual or legal entity receiving the right to use the Bloomreach Services under this EUA. The terms and conditions of this EUA shall govern the use of any Bloomreach Services that End User purchases from a Reseller, during the Subscription Term unless End User and Bloomreach have executed a separate agreement governing the use of the Bloomreach Services.

 

  1. DEFINITIONS

    1.1. “Additional Services” means all additional services provided by Bloomreach to the End User (directly or indirectly through a Reseller), including but not limited to integration services, business services and Training, purchased in an applicable Sales Order;

    1.2. “Bloomreach Services” means any products, services, or software including Additional Services provided by Bloomreach to the End User (directly or indirectly through a Reseller) set forth in the applicable Sales Order.

    1.3. “Certified Stack(s)” mean the software configurations that are required for the Software to be operable forth at https://documentation.bloomreach.com;

    1.4. “Documentation” means any technical specification documentation, technical product descriptions, user guides and technical integration guides relating to a Bloomreach Product generally provided by Bloomreach to its customers via the Bloomreach dashboard or documentation portal published at https://documentation.bloomreach.com/ or https://docs.exponea.com;

    1.5. “Intellectual Property Rights” means all rights of intellectual property, such as copyrights, trademark rights, patents, model rights, trade name rights, database rights and neighboring rights, as well as domain names and know-how; and any related rights;

    1.6. “Reseller” means Bloomreach’s authorized reseller;

    1.7. “Sales Order” means a separate contract between Parties, which is part of this EUA and in which Parties agree that Bloomreach will supply Bloomreach Services;

    1.8. “Software” means Bloomreach source code, algorithms or other code, including the underlying structure, schema, functions, methods of operation and ideas relating to the software that is being developed as part of the software and any algorithms, derivative works, or any modifications, corrections, improvements, or extensions used by Bloomreach to provide the Bloomreach Services;

    1.9. “Support” means the support Bloomreach provides to the End User set forth in an applicable Sales Order.<

    1.10. “Subscription Term” means the initial period plus any Renewal Term for which End User has right to use Bloomreach Services through Reseller; and

    1.11. “Training” means the form of knowledge transfer aimed at making End Users familiar with the functionality to be supplied by Bloomreach as set forth in a Sales Order.

 

  1. RIGHT TO USE

    2.1 Right to use. As long as the End User pays all fees associated with the applicable Sales Order and complies of the terms and conditions of the EUA and the applicable Sales Order, Bloomreach hereby grants the End User as follows: (a) a world-wide, non-exclusive, non-transferable, revocable right to use and access the Bloomreach Services described in the applicable Sales Order, (b) End Users using Experience Manager – Self Hosted shall receive a worldwide, non-exclusive, non-transferable, revocable license to use and reproduce the Bloomreach Services in object form.

    2.2 End User agrees that it will comply with the terms and conditions set forth in the Product Appendix found here: https://www.bloomreach.com/en/legal/product-appendices that applies to the Bloomreach Services that the End User has right to use under an applicable Sales Order. For purposes of the Product Appendices, all references to “Customer” shall mean “End User”.

 

  1. MAINTENANCE AND SUPPORT

    3.1. So long as End User is not in breach of this EUA, Bloomreach (directly or through a reseller) will provide the End User with Support of the Software.

 

  1. ADDITIONAL SERVICES

    4.1. Bloomreach will provide the End User with Additional Services solely as agreed in a separate Sales Orders with End User (or as specifically authorized through its reseller).

 

  1. PRICES, RATES, INVOICING AND PAYMENT

    5.1 Payment Terms. To the extent invoiced for Additional Services directly purchased or for reimbursement pursuant to Section 5.2, End User will pay each applicable invoice within 30 days of the invoice date or by such other date as may have been agreed upon by the Parties in writing.

    5.2 Reimbursement. End User will reimburse Bloomreach, at Bloomreach’s then-applicable standard rates, for all Bloomreach personnel time spent investigating an alleged error that Bloomreach reasonably determines to have been caused by: (i) the use of the Bloomreach Services in violation of the EUA; (ii) End User personnel errors or lack of training; or (iii) failure or malfunction of any product or service not provided by Bloomreach.

    5.3 Late Payments and Collection Costs. If Bloomreach does not receive payment when due (for Additional Services or for reimbursement pursuant to Section 5.2), End User will pay to Bloomreach a late payment fee equal to the lesser of 1.5% per month or the maximum amount permitted by law. End User will reimburse Bloomreach for all costs of collecting any past due accounts, including attorneys’ fees.

    5.4 Taxes. Bloomreach’s fees are exclusive of all sales, use, value-added, withholding and other taxes or duties, and End User will promptly pay or reimburse Bloomreach for all taxes arising out of this EUA. End User hereby confirms that Bloomreach can rely on the End User corporate address in applicable Sales Order as being the place of use for sales tax purposes, unless End User provides, prior to invoicing by Bloomreach, a list of other place(s) as being the place(s) of use. If End User is legally entitled to an exemption from the payment of any taxes, End User will promptly provide Bloomreach with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. Payments to Bloomreach shall be made without deduction for any taxes.

 

  1. TERM AND TERMINATION 

    6.1 EUA Term. This EUA will begin on the first use of the Bloomreach Services and shall, subject to Section 6.2, remain in effect during the Subscription Term.

    6.2 Termination for cause. Either Party may terminate this EUA immediately upon written notice to the other Party if: (a) the other Party ceases to carry on its business; (b) the other Party breaches any material provision of this EUA, and such breach continues uncured for 30 days (10 days for breach of any payment obligation) after written notice of this breach; (c) the other Party becomes insolvent, admits in writing to its inability to pay debts as they mature, is adjudicated bankrupt, or makes assignment for the benefits of its creditors; or (d) any proceeding under bankruptcy, or insolvency laws is commenced by or against the other Party and is not dismissed within 30 days. Bloomreach may terminate the EUA upon written notice (a) upon an amalgamation, acquisition or merger of Reseller with any person or entity who is not a party to the EUA or assignment of the EUA by Reseller, unless consented to by Bloomreach in writing in advance; (b) if there is a change in the controlling ownership of Reseller; or (c) Reseller fails to maintain the criteria specified in the Bloomreach Partner Portal for it Reseller level, or (d) immediately, upon written notice, for any breach of Bloomreach’s Intellectual Property Rights.

    6.3 Consequences of termination. Upon termination End User will cease using the Bloomreach Services. Any amounts invoiced to the End User for Additional Services prior to the termination, remain outstanding in full and are immediately due and payable at the time of termination.

    6.4 Unless provided otherwise, any obligations which are by their nature destined to continue after termination of the EUA, will continue accordingly. The termination of the EUA does explicitly not release Parties from provisions related to confidentiality, liability, Intellectual Property Rights, workforce takeover, applicable law and forum selection.

    6.5 In the event of termination and at the request of End User, the Parties will enter into discussions regarding the (manner of) transfer of data, the service provision and/or other control measures, necessary for an uninterrupted progress of the End User's use of data.

    6.6 All activities carried out by Bloomreach with regard to the previous paragraph, are charged on the basis of subsequent costing at rates current at that time.

 

  1. WARRANTIES

    7.1 Disclaimer of warranties. End User represents, covenants, and warrants that End User will use the Bloomreach Services in compliance with all applicable laws (including without limitation laws and regulations related to privacy, intellectual property, consumer protection, obscenity, and defamation). Bloomreach warrants that any services provided in a Sales Order shall be provided in a competent and workmanlike manner in accordance with industry standards. BLOOMREACH MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARDS TO THE BLOOMREACH SERVICES, DOCUMENTATION, CONSULTATION, OR ANY BLOOMREACH CONTENT. Bloomreach does not warrant that the Bloomreach Services 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 Services. EXCEPT FOR THE FOREGOING AND UNLESS OTHERWISE SET FORTH IN THE SLA, THE BLOOMREACH SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BLOOMREACH DISCLAIMS ALL STATUTORY OR OTHERWISE CONDITIONS, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. BLOOMREACH IS NOT ENGAGED IN THE PRACTICE OF LAW. ANY STATEMENTS OR ASSISTANCE BLOOMREACH PROVIDES SHOULD BE INTERPRETED AS OPINIONS OR ADVICE CONCERNING BUSINESS ISSUES TO BE CONSIDERED IN CONNECTION WITH THE SERVICES. END USER REPRESENTS AND WARRANTS IT IS NOT RELYING UPON BLOOMREACH TO PROVIDE LEGAL SERVICES. END USER ACKNOWLEDGES THAT NEITHER BLOOMREACH NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND INTERNET SEARCH ENGINES. BLOOMREACH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Bloomreach makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the products and services provided under the Bloomreach Services (unless otherwise set forth in the SLA), Documentation, or any Bloomreach content.

    7.2 Additional Services Warranty and Exclusive Remedy. BLOOMREACH WARRANTS THAT IT WILL PROVIDE ADDITIONAL SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER TO STANDARDS GENERALLY ACCEPTED IN THE INDUSTRY. END USER'S EXCLUSIVE REMEDY FOR BREACH OF FOREGOING WARRANTY WILL BE TO REQUIRE BLOOMREACH TO RE-PERFORM THE ADDITIONAL SERVICES IN ACCORDANCE WITH THE WARRANTY. BLOOMREACH WARRANTS THAT TO THE BEST OF ITS KNOWSLEDGE THE SOFTWARE DOES NOT CONTAIN ANY VIRUSES, TROJANS, LOGIC BOMBS OR OTHER HARMFUL CODE. THE FOREGOING WARRANTY CONSTITUTES BLOOMREACH’S SOLE WARRANTY WITH RESPECT TO ADDITIONAL SERVICES, AND THE FOREGOING REMEDY CONSTITUTES END USER’S EXCLUSIVE REMEDY FOR BREACH OF THAT WARRANTY.

    7.3 The End User guarantees that they will always comply with all relevant and applicable laws and regulations, including, in any case, laws with regard to Intellectual Property Rights and laws with regard to the protection of privacy.

    7.4 The End User shall be responsible for all external parties they engage for carrying out activities with regard to the Bloomreach Services.

 

  1. LIMITATION OF LIABILITY. 

    8.1 EXCEPT FOR A BREACH BY A PARTY OF ITS PAYMENT OBLIGATIONS AND THE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS EUA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF 10,000 USD EQUIVALENT OR THE AMOUNT PAID BY END USER FOR THE RIGHTS HEREIN IN THE 12 MONTHS PRECEDING THE INCIDENT.

    8.2 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, COVER OR PUNITIVE OR INCIDENTAL DAMAGES HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF ANTICIPATED SAVINGS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    8.3 NOTHING IN THE EUA EXCLUDES OR RESTRICTS ANY PARTY’S LIABILITY FOR (i) IN EACH JURISDICTION WHERE APPLICABLE, THE TORT OF DECEIPT, (ii) DEATH OR PERSONAL INJURY RESULTING FROM THAT PARTY’S NEGLIGENCE OR ITS EMPLOYEES’ NEGLIGENCE WHILE ACTING IN THE COURSE OF THEIR EMPLOYMENT AND (iii) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

 

  1. INDEMNIFICATION.

    9.1 Bloomreach shall defend End User against any third-party action, claim or suit (“Claim”) to the extent such Claim alleges that the Bloomreach Services infringe any United States, United Kingdom or European Union patent right or trademark of a third party. The foregoing obligation shall not apply with respect to any Claim arising from or relating to (i) End User’s use of the Bloomreach Services other than in accordance with and as contemplated by this EUA or other breach of this EUA by End User; (ii) the combination of the Bloomreach Services with any other products, services, materials or technology, if the Bloomreach Services would not be infringing without such combination; (iii) any open source software; or (iv) modifications to the Bloomreach Services not specifically authorized in writing by Bloomreach. If the Bloomreach Services become the subject of an intellectual property infringement Claim, Bloomreach may, at its sole option, (a) procure for End User a right to continue using the Bloomreach Services in accordance with this EUA; (b) replace or modify the allegedly infringing portion of the Bloomreach Services to avoid the infringement, or (c) terminate this EUA and refund any prepaid unused fees as of the date of termination. This Section 9.1 sets forth End User’s sole remedy in the event of any third party infringement Claim regarding the Bloomreach Services.

    9.2 End User shall indemnify and defend Bloomreach against any Claim to the extent such claim is (i) arising from the content; or (ii) from End User’s misuse of the Bloomreach Services or breach of the AUP.

    9.3 Each party’s obligations under this Section 9 (Indemnity) shall be conditioned on the party seeking indemnification providing the indemnifying party with (i) prompt notice of any Claim, (ii) sole control of the defense and settlement of any such Claim and (iii) reasonable cooperation in such defense and settlement. The indemnifying party will not enter into any settlement or compromise of any such claim without the indemnified party’s prior written consent if the settlement would require admission of fault or payment by the indemnified party. Subject to the requirements set forth herein, the indemnifying party shall pay reasonable costs incurred by the indemnified party directly related to the Claim.

 

  1. END USER'S OBLIGATIONS

    10.1 Responsibilities. End User agrees that it will: (a) cooperate with Bloomreach as reasonably required to set up and integrate the Bloomreach Services, including meeting any requirements documents, guidelines, or other instructions provided or made available by Bloomreach from time to time; (b) comply with the Bloomreach Acceptable Use Policy available at https://www.bloomreach.com/en/about/acceptable-use-policy (the “AUP”); and (c) comply with any product restrictions and limitations set forth in the Documentation. End User acknowledges that its failure or delay in satisfying any End User responsibility set forth herein or in an applicable Sales Order or other written agreement may adversely affect Bloomreach’s ability to satisfy its performance obligations. In any such case, Bloomreach will be excused from any resulting failure or delay of performance and will be entitled to recover from End User the fees or expenses that Bloomreach incurs, subject to Bloomreach’s obligation to mitigate such fees and expenses to the extent that it is commercially practicable to do so.

    10.2 Project Responsibilities. End User acknowledges that its failure or delay in satisfying any End User responsibility set forth herein or in any applicable Sales Order may adversely affect Bloomreach’s ability to satisfy its performance obligations and complete a project by the estimated end date. In any such case, Bloomreach will be excused from any resulting failure or delay of performance. Should Bloomreach and End User choose to continue working on the project, the End User will be billed in accordance with the terms of the Sales Order. Bloomreach reserves the right to discontinue working on a project if the End User does not make progress on their responsibilities and Bloomreach may recover from End User the entire fees set forth in the Sales Order or expenses that Bloomreach incurs, subject to Bloomreach’s obligation to mitigate such fees and expenses to the extent it is commercially practicable to do so.

    10.3 Restrictions. The End User shall not (and shall not authorize any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the Bloomreach Services, except to the extent that enforcement of the foregoing restrictions is prohibited by any applicable law; (b) circumvent any user limits, applicable usage allowances, or timing, use, or functionality restrictions set forth in the Documentation or applicable Sales Order or built into the Bloomreach Services; (c) remove any proprietary notices, labels, or marks from the Bloomreach Services; (d) frame or mirror any content forming part of the Bloomreach Services;(e) access the Bloomreach Services in order to (i) build a competitive product or service, or (ii) copy any ideas, modules, functions, or graphics; (f) register, or make it possible to register or support the third party registration of trademarks, business names, or other designations of Bloomreach; or (g) use Bloomreach’s intellectual property rights for its benefit, e.g., by combination of Bloomreach logos and/or trademarks with its own business name and/or company name or its own products or services; (h) use the Bloomreach Services in a way that is prohibited by the AUP.

    10.4 Unauthorized Use. The Bloomreach Services detailed herein are not intended, nor should they be used to capture any Protected Health Information as defined within the Health Insurance Portability and Accountability Act of 1996 (as amended) or special categories of Personal Data as defined within the GDPR. End User understands and acknowledges that any such use of the Bloomreach Services for this purpose violates the terms of the EUA and Bloomreach shall have no liability for such unauthorized use.

    10.5 Permitted Users. End User may permit its contractors to access the Bloomreach Services, provided End User remains responsible for compliance by each such contractor with all of the terms and conditions of this EUA. Any such use of the Bloomreach Services by such contractor shall be for the sole benefit of End User.

    10.6 Insufficient knowledge. Bloomreach may, in the case that End Users do not have adequate knowledge of the functionality of the Bloomreach Services, require Training courses be purchased in a Sales Order from Bloomreach, or that the End Users gain the required knowledge in another way. Bloomreach will base the reasonableness of this requirement on their Support history. If the End User does not comply with this, Bloomreach has the right to suspend their obligation with regard to Support until the End Users’ knowledge has been brought to a sufficient level, without the End User being entitled to reimbursement of money already paid or any compensation.

 

  1. INTELLECTUAL PROPERTY RIGHTS

    11.1 Bloomreach shall retain all rights, including but not limited to all patent rights, trademark rights, copyright, trade secrets, and any other Intellectual Property Rights, in and to the Bloomreach Services, Documentation, and any underlying structure, schema, functions, methods of operation, and ideas relating to the Bloomreach Services that are being developed, and any algorithms, derivative works, or any modifications, corrections, improvements, or extensions to the Bloomreach Services. End User will not obtain any further rights other than are explicitly granted to End User in this EUA.

    11.2 Reports. If the End User provides Bloomreach with any reports of defects and/or suggests modifications (“Reports”), Bloomreach shall have the right to use such Reports, including incorporating such Reports into its Bloomreach Services or other software products, without any obligation to the End User.

    11.3 Generated Data. The Intellectual Property Rights of the data generated by End User’s use of the Bloomreach Services, will remain the exclusive, sole, and absolute property of End User.

    11.4 Enhancement of Bloomreach Services. Bloomreach has the right to analyze the End User’s use of the Bloomreach Services to improve, enhance, and optimize the performance of the Bloomreach Services. For this purpose, Bloomreach may (a) collect and analyze the data derived from the End User and process such data in an aggregated and anonymized form during or after the Subscription Term, and (b) make such aggregated and anonymized data available via industry trend reports.

 

  1. CONFIDENTIALITY AND STAFF MEMBERS

    12.1 Each Party understands that the other Party has disclosed or will disclose information relating to the disclosing party’s business and services, hereinafter referred to as “Confidential Information”. Each Party will protect the other Party’s Confidential Information by (a) using it only for the purposes of this EUA, (b) disclosing it only to the Party’s personnel strictly on a need-to-know basis and not to any third party and (c) taking such measures as it takes to protect its own confidential information of like kind, and in any event a reasonable level of care. The obligations set forth in the preceding sentence will not apply in the event, and only to the extent, that the Confidential Information is (i) already in the receiving Party’s possession without obligation of confidentiality, (ii) obtained from a third party without obligation of confidentiality, (iii) independently developed by the receiving Party, (iv) disclosed by the other Party to a third party without obligation of confidentiality, or (v) required to be disclosed by applicable law or governmental order, in which case the receiving Party will, as promptly as possible and before making the disclosure, notify the other Party of its intention to make the disclosure.

     

    12.2 During the term of the EUA and one (1) year afterwards the End User shall not enter into an employment contract with a Bloomreach staff member or have a staff member carry out activities for them in any way, either directly or indirectly, without Bloomreach’s written permission. In this respect a staff member means any person who had an employment relationship with Bloomreach in the preceding three (3) months.

 

  1. DATA PROTECTION

    13.1 Data Processing Addendum. In order to satisfy our mutual obligations under the EU General Data Protection Regulation (Regulation (EU) 2016/679), the parties agree Bloomreach’s Data Processing Addendum (DPA) available at https://www.bloomreach.com/en/legal/dpa-all shall apply to the processing of personal data.

 

  1. MISCELLANEOUS

    14.1 Governing Law and Jurisdiction. If End User resides in the United States of America or Canada as represented in the applicable Sales Order, this EUA is governed by the law of California, U.S.A without regard to its conflict of laws’ provisions and any legal action or proceeding relating to this EUA shall be brought exclusively in the state or federal courts located in Santa Clara County. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this EUA. In any action or proceeding to enforce rights under this EUA, the prevailing Party will be entitled to recover costs and attorneys’ fees.

    If End User resides in the United Kingdom as represented in the applicable Sales Order, this EUA is governed by the laws of England and any legal action or proceeding relating to this EUA shall be brought exclusively in London, England. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this EUA. In any action or proceeding to enforce rights under this EUA, the prevailing Party will be entitled to recover costs and attorneys’ fees.

    If End User resides outside of United States of America or Canada and not in the United Kingdom, as represented in the applicable Sales Order, this EUA is governed by the laws of The Netherlands and any legal action or proceeding relating to this EUA shall be brought exclusively in Amsterdam, The Netherlands. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this EUA. In any action or proceeding to enforce rights under this EUA, the prevailing Party will be entitled to recover costs and attorneys’ fees.

    14.2 Complete Understanding. Each Party agrees that this EUA is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this EUA. All waivers and modifications must be in a writing signed by the Parties, except as otherwise provided herein. If any provision of this EUA is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary to be enforceable. This EUA will otherwise remain in full force and effect

     14.3 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this EUA, and neither Party has any authority of any kind to bind the other in any respect whatsoever.

    14.4 Export. Bloomreach Services are subject to export laws and regulations of the United States and other jurisdictions. The Parties represent that they are not named on any U.S. government denied-party list (the most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). End User will not permit any access to or use Bloomreach Services in a U.S. embargoed country or region or in violation of any U.S. export law or regulation.

    14.5 Set-off. Each of the Parties hereby acknowledges that it shall have no right under this EUA to offset any amounts owed (or to become due and owing) to the other Party, whether under this EUA or Sales Order against any other amount owed (or to become due and owing) to it by the other Party.

    14.6 Verification. End User shall grant to Bloomreach, its auditors, and their respective agents reasonable access to End User’s records (including a right to make copies thereof at cost), equipment and premises pertaining to use of the Bloomreach Services, and shall provide reasonable assistance at all times during the term of this EUA, for the purpose of auditing End User’s compliance with the provisions of this EUA.

    14.7 Waiver. The failure of either Party to enforce at any time any of the provisions of this EUA, or the failure to require at any time performance by the other Party of any of the provisions of this EUA, will not be construed as a waiver of such provisions, or in any way affect the right of either Party to enforce such provisions of this EUA, or constitute a waiver of any future obligation to comply with such provision.

    14.8 Assignment and Delegation. This EUA will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither Party will assign any of its rights, obligations, or privileges (by operation of law or otherwise) hereunder without prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, however, (a) either Party may assign this EUA pursuant to a change of control or a merger or sale of substantially all of a Party’s assets or outstanding stock; (b) Bloomreach may assign this EUA to an entity controlled or under common control with Bloomreach in each instance provided that the assignee agrees in writing to assume all of the obligations of the assignor hereunder; (c) Bloomreach may assign Bloomreach’s monetary receivables arising out of the EUA to any third parties. Bloomreach may delegate any of its obligations hereunder but will remain responsible for performing those obligations.

    14.9 Notices. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to this EUA will be in writing and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine; (iii) when transmitted if sent by email; or (iv) when delivered if delivered personally or sent by express courier service. All notices will be sent to the other Party at its address as set forth within this EUA or such other address as the Party may specify in a notice given in accordance with this section. If by mail, express courier, or personally delivered to Bloomreach at the address identified and by email to Bloomreach: legal@bloomreach.com. If by mail, express courier, personally delivered, or email to End User: to the address set forth in the applicable Sales Order or otherwise provided by End User.

    14.10 Force Majeure. Except for payment of fees, neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the EUA if and to the extent that such failure or delay is caused by events beyond its reasonable control, including, but not limited to, acts of the public enemy or a governmental body in its sovereign or contractual capacity, war, fire, floods, natural disaster, strikes, unusually severe weather, outside electrical failure, the limitations or failures of third-party internet service providers and/or telecommunication providers, the performance or failures of internet service providers, or acts of terrorism, including cyberattacks on Bloomreach’s computer systems or those of third parties. If so affected, the affected Party shall use commercially reasonable efforts to avoid or remove such causes of non-performance or delay and shall continue performance hereunder with reasonable dispatch whenever such causes are removed or otherwise resolved.