Free Trial Terms and Conditions
These Free Trial Terms and Conditions (the “Agreement”) constitute a binding agreement between the legal entity that will be using the Free Trial (the “Customer”) and Bloomreach, Inc. located at 700 E. El Camino Real, Suite 130, Mountain View, CA 94040 (“Bloomreach”) (each a “Party” and collectively the “Parties”).
In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1 “Account” means the account created and/or authorized for Customer based on the Agreement in order to utilize the Bloomreach Services.
1.2 “Affiliate” means any entity controlling, controlled by, or under common control of a Party where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
1.3 “Applicable Law” means any law, rule, or regulation applicable to a Party.
1.4 “Bloomreach Services” means the SMS Services and any products, services, or software provided by Bloomreach to Customer during the Free Trial.
1.5 “Customer Data” means the data of end users of the Customer´s services (including in particular Customer´s customers or website visitors), Customer´s employees, or Customer data provided to Bloomreach for the provision of Bloomreach Services.
1.6 “Data Protection Legislation" means (as applicable) (i) the California Consumer Privacy Act (“CCPA”) including as modified by the California Privacy Rights Act (“CPRA”), (ii) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) ("GDPR"); (iii) European e-Privacy Directive (Directive 2002/58/EC), (iv) any national data protection laws made under or pursuant to (i), (ii) or (iii); and (v) in respect of the UK, the Data Protection Act 2018 and any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union (in each case as may be amended, superseded, or replaced).
1.7 "Free Trial” means the promotional program through which Bloomreach has agreed to provide Customer the SMS Services free of charge for a trial period.
1.8 “SMS Services” means Bloomreach Engagement personalized SMS, MMS, and any other messaging services provided by Bloomreach.
1.9 “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.
1.10 “Term” means the period in which Bloomreach provides Customer the Free Trial.
2. LICENSE TERMS
2.1 Subject to the terms of the Agreement and approval by Bloomreach for a Free Trial, Bloomreach grants Customer a worldwide, non-exclusive, non-transferable, revocable right to use and access the SMS Services during the Term. Bloomreach reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Free Trial, and, subject to Applicable Laws, to withdraw or to modify the license granted to Customer without cause at any time without prior notice and with no liability, to the greatest extent permitted under law.
3. SMS SERVICES
3.1 Availability. During the Term of the Free Trial, Bloomreach will provide SMS Services on an “as available” basis in (i) the European Economic Area and the UK, or (ii) the United States of America unless otherwise agreed between the Parties.
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 Services, 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. Customer acknowledges that Bloomreach uses a third-party provider for the Bloomreach Services and authorizes Bloomreach to use such third-party provider for the Bloomreach 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:
3.4.1 Hosting. The Customer acknowledges that Bloomreach uses Google Cloud for the hosting of the Bloomreach Services. The Customer agrees to be bound by the terms of Google Cloud available at https://cloud.google.com/terms/service-terms.
3.5 Exceeded Usage Allowance. Exceeding of any usage allowance imposed on Customer’s use of the Free Trial may result in immediate limitation or unavailability of the Services.
4. INTELLECTUAL PROPERTY
4.1 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, 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. Customer will not obtain any further rights other than are explicitly granted to Customer in this Agreement.
4.2 Reports. If the Customer 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 Customer.
4.3 Generated Data. The intellectual property rights of the data generated by Customer’s use of the Bloomreach Services, will remain the exclusive, sole, and absolute property of Customer.
4.4 Enhancement of Bloomreach Services. Bloomreach has the right to analyze the Customer'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 Customer Data and process such data in an aggregated and anonymized form during or after the Term, and (b) make such aggregated and anonymized data available via industry trend reports.
5. RESTRICTIONS AND RESPONSIBILITIES
5.1 Responsibilities. Customer agrees that it will be responsible for setting up and configuring the Bloomreach Services, including without limitation any provisioning of access to the Bloomreach Services and meeting any requirements documents, guidelines, or other instructions provided or made available by Bloomreach from time to time.
5.2 Restrictions. The Customer 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 Applicable Law; (b) circumvent any user limits, applicable usage allowances, or timing, use, or functionality restrictions 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; (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 violates any third-party rights (including but not limited to intellectual property, moral, privacy or proprietary rights, or in any way that harms any individuals including minors or entities, etc.); (i) engage in, foster, or promote illegal, abusive, or irresponsible behavior; (j) send, disseminate or promote any unlawful, invasive, abusive, harassing, infringing, obscene, hateful, defamatory, or fraudulent materials; (k) intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other programs or computer code or other items of a destructive or deceptive nature to computer software or hardware; (l) adversely impact the availability, reliability or stability of the Bloomreach Services; publish, transmit or store on or via Bloomreach’s network and equipment any content or links that (i) contains pornographic content, (ii) is excessively violent, incites violence or threatens violence, (iii) is defamatory, or (iv) is otherwise malicious, fraudulent or may result in retaliation against Bloomreach by offended viewers.
5.3 Unauthorized Use. The Bloomreach Services 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. Customer understands and acknowledges that any such use of the Bloomreach Services for this purpose violates the terms of the Agreement and Bloomreach shall have no liability for such unauthorized use.
5.4 Permitted Users. Customer may permit its contractors and Affiliates to access the Bloomreach Services within the usage limits set forth by Bloomreach, provided Customer remains responsible for compliance by each such contractor or Affiliate with all of the terms and conditions of this Agreement. Any such use of the Bloomreach Services by such contractor or Affiliate shall be for the sole benefit of Customer.
5.5 TCPA Compliance. 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 Customer’s content and use of the Bloomreach Services complies with the Telephone Communications Laws, and (b) Customer has not relied (and will not in the future rely) upon Bloomreach in any respect in making Customer’s assessment and determination.
6.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business and services (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to use the same degree of care to protect the Proprietary Information as it uses to protect its own Proprietary Information of like nature, but in no circumstances less than reasonable care, and (ii) not to use or divulge to any third person any such Proprietary Information except as expressly permitted herein or to its officers, employees, consultants, contractors, Affiliates, or legal advisors who need access to such Proprietary Information in order to effect the intent of the Agreement and who have entered into a confidentiality agreement at least as restrictive as the requirements in this clause. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof (except Proprietary Information that is identified as trade secrets, in which case the foregoing obligations are ongoing) or any information that the Receiving Party can document (a) is or becomes generally available to the public through no breach of this Agreement, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required by law to be disclosed, provided that Receiving Party first provides the Disclosing Party with reasonable prior notice and obtains, or provides the Disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Proprietary Information. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may disclose the Proprietary Information of the Disclosing Party to the extent required by an information disclosure request made under Applicable Law, provided that the Receiving Party promptly notifies the Disclosing Party of the information disclosure request before disclosing the Proprietary Information and comply with the Disclosing Party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, the Receiving Party is not obliged to notify the Disclosing Party of the information disclosure request if it could result in a violation of Applicable Law by the Receiving Party.
7. TERM AND TERMINATION
7.1 Bloomreach agrees to make the SMS Services available to Customer under the Free Trial until the earlier of (a) the end of the Free Trial period or (b) termination by either Party. Either Party may terminate the Free Trial with or without cause by providing the other Party with written notice of its intent to terminate. Upon termination, Customer agrees to immediately cease use of the SMS Services
8. WARRANTY AND DISCLAIMER.
8.1 Customer represents, covenants, and warrants that Customer will use the Bloomreach Services in compliance with the Applicable Law (including without limitation laws and regulations related to privacy, intellectual property, consumer protection, obscenity, and defamation). BLOOMREACH MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARDS TO THE BLOOMREACH SERVICES, 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. 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. CUSTOMER REPRESENTS AND WARRANTS IT IS NOT RELYING UPON BLOOMREACH TO PROVIDE LEGAL SERVICES. CUSTOMER 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 or any Bloomreach content.
8.2 Each Party represents and warrants to the other Party that: (a) such Party is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; and the execution, delivery and performance of the Agreement constitutes the legal, valid and binding obligation of such Party; and (b) such Party has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement.
9. LIMITATION OF LIABILITY.
9.1 Bloomreach shall not be liable hereunder for any loss of profits, business, revenues, savings, reputation, production, goodwill, use or data, or for interruption of business, or any other indirect, incidental, special, exemplary, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action. If such exclusion of liability is not enforceable under Applicable Law, Bloomreach’s aggregate, cumulative monetary liability for any damages arising from or related to this Agreement shall not exceed the minimum amount required by law.
10.1 Customer shall indemnify and defend Bloomreach against any third-party action, claim, or suit (“Claim”) to the extent such Claim is arising from Customer’s use or misuse of the Bloomreach Services in accordance with this Agreement.
10.2 Customer’s obligations under this Section 10 (Indemnity) shall be conditioned on Bloomreach providing Customer 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. Customer will not enter into any settlement or compromise of any such claim without Bloomreach’s prior written consent if the settlement would require admission of fault or payment by Bloomreach. Subject to the requirements set forth herein, Customer shall pay reasonable costs incurred by Bloomreach directly related to the Claim.
11. DATA PROTECTION.
11.1 The Parties will comply with all applicable requirements of the Data Protection Legislation. This Section 11 is in addition to, and does not relieve, remove, or replace a party’s obligations or rights under the Data Protection Legislation. The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Bloomreach for the duration and purposes of this Agreement.
11.2 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.
12.1 Complete Understanding. Each Party agrees that this Agreement 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 Agreement. All waivers and modifications must be in a writing signed by the Parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary to be enforceable. This Agreement will otherwise remain in full force and effect.
12.2 Assignment. Customer may not transfer and assign any of its rights and obligations under this Agreement without the consent of Bloomreach.
12.3 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect whatsoever.
12.4 Notices. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to this Agreement will be in writing and will be deemed to have been given when transmitted by email to Bloomreach at [email protected] and to Customer at the email address provided by Customer for notice purposes.
12.5 Governing Law. If Customer resides in the United States of America or Canada, this Agreement 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 Agreement 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 Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
If Customer resides in the United Kingdom, this Agreement is governed by the laws of England and any legal action or proceeding relating to this Agreement 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 Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
If Customer resides outside of United States of America or Canada and not in the United Kingdom, this Agreement is governed by the laws of The Netherlands and any legal action or proceeding relating to this Agreement 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 Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
12.6 Conflicting terms. If there is a conflict between the documents that make up the Agreement, the documents will control in the following order: this Agreement, Data Processing Addendum.
12.7 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). Customer 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.
12.8 Force majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement 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.