Bloomreach Master Services Agreement
(Effective: March 3, 2017 to March 15, 2018)
For other versions of the Bloomreach’s Master Subscription Agreement, click here.
This Master Services Agreement is entered into between BloomReach, Inc. located at 82 Pioneer Way, Mountain View, CA 94041 (“BloomReach”) and the undersigned party below (the “Customer”). Subject to the terms and conditions of this Agreement, during the Services Term BloomReach will provide to Customer the Services with respect to the Site(s) each as identified on the applicable Sales Order.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1 “Sales Order” means a BloomReach order that specifies the fees, period and other details of the Services to be provided by BloomReach.
1.2 “Services” means the services set forth on the applicable Sales Order.
1.3 “Services Term” means the period set forth on the applicable Sales Order.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer acknowledges and agrees that BloomReach is providing Services and that, other than widgets and/or pixels for inclusion on the Sites, Customer will not be provided any software, source code, algorithms or other code used by BloomReach to provide the Services (the “Software”). BloomReach and its licensors own and retain all intellectual p1.roperty rights in and to the Software and the Services, including the underlying structure, schema, functions, methods of operation and ideas relating to the Services that is being developed as part of the Services and any algorithms, derivative works, or any modifications, corrections, improvements, or extensions to the Software (collectively the “Services”). Customer hereby assigns to BloomReach, Customer’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights, trade secret rights and all other intellectual property or proprietary rights) in any and all modifications, derivative works or improvements to the Services which Customer may propose or make, or which BloomReach may make based on Customer’s feedback, or which Customer and BloomReach may jointly make, in any event whether during or after the Services Term. Customer will not, directly or indirectly, during or after a Services Term, do any of the following: attempt to download or access the Software (other than remote access to functionality of the Software provided through the Services by BloomReach), or reverse engineer, decompile, disassemble or otherwise attempt to discover any portion of the Software; modify or create derivative works based on the Services or any Software; copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; re-direct traffic from any thematic pages to any pages on any Customer site that are substantially similar to such thematic pages or that are created for the purpose of maintaining the natural search traffic generated by the Services; copy any BloomReach widgets or create any widgets that are substantially similar to the BloomReach widgets for use on any Customer site; or use or allow to be used (except as part of Customer’s permitted use of the Services on the Site(s)), or provide to any third party, any data, content or information created or generated by the Services. In the event a systems integrator, consultant, contractor or other party (all herein, “Subcontractor”) accesses or performs the Services on behalf of either party, such access must be solely for the benefit of Customer or as applicable BloomReach and the Subcontractor must be bound by terms limiting use of the Services within the scope of the restrictions of this Section 2 and no less protective or restrictive than the provisions of Section 3. Such Subcontractor will be deemed to be the applicable party’s agent acting on such party’s behalf and the applicable party shall properly monitor or otherwise ensure that the Subcontractor’s provision of, access to and use of the Services is proper and in compliance with the terms of this Agreement. Each party shall be responsible to the other party for any said Subcontractor’s failure to comply with the terms and conditions of this Agreement. For the avoidance of doubt, Customer is not permitted to use the Services or any Software for the purpose of creating or improving any services or technology that performs similar functions or is competitive with the Service, nor is Customer permitted to use the Services in any manner detrimental to BloomReach. Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.2 Customer shall be responsible for the following: obtaining and maintaining any equipment and ancillary services needed to connect to the internet, and access and otherwise use the Services ensuring that such equipment and ancillary services are compatible with the Services (and, to the extent applicable, the Software); timely compliance with any configurations and data requirements specified by BloomReach; ensuring that the Services are properly integrated (in accordance with the applicable BloomReach Integration Guide) on all applicable pages as agreed upon by the parties and that each Site is crawlable by search engines and BloomReach; and ensuring that each Site is, at all times throughout the Services Term, functional and accessible to the public. For clarification, these obligations apply to all platforms (including desktop, mobile, tablet or apps) on which the content of the Site(s) is displayed. Customer acknowledges that BloomReach’s provision of the Services is dependent on Customer’s performance of its obligations in this Section 2.2 and any dates or time periods relevant to BloomReach’s provision of Services or other performance will be extended appropriately and equitably to reflect any delays due to Customer’s delay in the performance of or failure to perform its obligations hereunder.
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 (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five 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, (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 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 provide the Disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Proprietary Information. In any event, BloomReach may collect and anonymously use aggregated data BloomReach creates in connection with its performance of the Services in order to generally improve and optimize the performance of the Software, Services, and any other BloomReach products and services, provided that in no event will BloomReach share any data with any third party outside the scope of this Agreement.
5. PAYMENT OF FEES
Customer shall pay BloomReach the fees in accordance with the applicable Sales Order (the “Fees”). All Fees shall be invoiced as follows and except as expressly set forth in Section 9.1 (Indemnity) of this Agreement, shall be non-refundable. Full payment for all invoices is due and payable within thirty (30) days from the date of the invoice and BloomReach may terminate the Services if any payment is overdue. If Customer believes that BloomReach has billed Customer incorrectly, Customer must contact BloomReach no later than 30 days after the date of the invoice in which the error or problem first appeared, in order to receive an adjustment or credit, if applicable. Inquiries should be directed to BloomReach’s Customer Support department. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. BloomReach’s fees are exclusive of all sales, use, value-added, withholding and other taxes or duties, and Customer will promptly pay or reimburse BloomReach for all taxes arising out of this Agreement. Customer hereby confirms that BloomReach can rely on the Customer corporate address in applicable Sales Order as being the place of use for sales tax purposes, unless Customer provides, prior to invoicing by BloomReach, a list of other place(s) as being the place(s) of use. If Customer is legally entitled to an exemption from the payment of any taxes, Customer will promptly provide BloomReach with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. If Customer is located outside the United States and required to pay or withhold any tax in respect of any payments due to BloomReach hereunder, Customer will gross up payments actually made such that BloomReach receives sums due hereunder in full and free of any deduction for any such tax. BloomReach reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of any Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
6. TERM AND TERMINATION
6.1. Term. This Agreement shall commence on the Effective Date of the initial Sales Order and shall remain in effect so long as the current or any subsequent Sales Order for the Services is in effect.
6.2. Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or ten (10) days in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within the relevant notice period. Upon termination, Customer will pay in full all Fees due hereunder and Customer will cease using the Services, including but not limited to using any thematic pages generated through use of the Services, any BloomReach APIs and any BloomReach widgets installed on any pages on any Customer Site. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Section 2.1, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability and non-solicitation.
7. WARRANTY AND DISCLAIMER.
Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws and regulations (including without limitation laws and regulations related to privacy, intellectual property, consumer protection, obscenity or defamation). BloomReach warrants that any Services provided hereunder shall be provided in a competent and workmanlike manner in accordance with industry standards. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by BloomReach or by third-party providers, or because of other causes beyond BloomReach’s reasonable control, but BloomReach shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. BLOOMREACH DOES NOT WARRANT THAT THE SERVICES OR ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR SOFTWARE. EXCEPT FOR THE FOREGOING, THE SERVICES AND ANY SOFTWARE ARE PROVIDED “AS IS” AND BLOOMREACH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 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.
8. LIMITATION OF LIABILITY
Except for breach by a party of its obligations in Section 3 herein, neither party shall be liable hereunder for any loss of profits, business, use or data, or for interruption of business, or any other indirect, incidental, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action. Except for BloomReach’s breach of its confidentiality obligations in Section 3 herein or BloomReach’s indemnification obligations in Section 9 herein, BloomReach’s aggregate, cumulative monetary liability for any damages arising from or related to this Agreement, whether in contract or in tort or under any other legal theory (including strict liability and negligence), shall not exceed the Fees paid by Customer to BloomReach for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability.
9.1. BloomReach shall defend Customer against any third-party action, claim or suit (“Claim”) to the extent such Claim alleges that the Services infringe any United States patent right or trademark of a third party, issued on or before the effective date of this Agreement and BloomReach shall pay the costs, liabilities and expenses (including reasonable attorneys’ fees) awarded to the third party with respect to the Claim or agreed to by BloomReach in settlement of the Claim. The foregoing obligation shall not apply with respect to any Claim arising from or relating to (i) Customer’s use of the Services other than in accordance with and as contemplated by this Agreement or other breach of this Agreement by Customer; (ii) the combination of the Services with any other products, services, materials or technology, if the Services would not be infringing without such combination; (iii) any open source software; or (iv) modifications to the Services made according to Customer’s specifications. If the Services become the subject of an intellectual property infringement Claim, BloomReach may, at its sole option, (a) procure for Customer a license to continue using the Software or Services in accordance with this Agreement; (b) replace or modify the allegedly infringing portion of the Services to avoid the infringement, or (iii) terminate this Agreement and refund any prepaid unused fees as of the date of termination. This Section 9.1 sets forth Customer’s sole remedy in the event of any third party infringement Claim regarding the Services.
9.2 Customer shall indemnify and defend BloomReach against any costs, liabilities and expenses (including reasonable attorneys’ fees) incurred in connection with any Claim arising from the Site(s) including the content thereon or from Customer’s misuse of the Services.
9.3. Each party’s obligations under this Section 9 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.
10. PUBLICITY AND MARKETING.
BloomReach may identify Customer as a customer of the Services on BloomReach’s customer lists, on its websites and in its advertising and marketing materials, and Customer hereby grants to BloomReach the right to use Customer’s name and trademarks in connection therewith. With Customer’s prior consent, BloomReach may develop and publish a case study and/or press release based upon Customer’s use of the Services. Following development of the case study, Customer will accept inquiries from press and analysts to discuss their use of the Services. Customer will participate in speaking engagements in partnership with BloomReach. BloomReach will provide 2 months minimum notice of a speaking engagement.
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. During the term of this Agreement and for a period of twelve (12) months thereafter, Customer shall not solicit or seek to induce, without BloomReach’s prior written consent, the employment of any BloomReach employee or consultant. Neither party may transfer and assign any of its rights and obligations under this Agreement without consent of the other party, except that no consent shall be required upon written notice for an assignment of this Agreement by either party pursuant to a change of control or a merger or sale of substantially all of a party’s assets or outstanding stock, provided that the assignee agrees in writing to assume all of the obligations of the assignor hereunder and BloomReach may assign this Agreement together with its rights and obligations under this Agreement upon written notice to Customer to an entity controlled by or under common control. 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. In the event of any inconsistency between the terms of any Sales Order and this Agreement (or its exhibits) the terms of this Agreement (or its exhibits) shall control, unless the Sales Order expressly states that such term supersedes the conflicting term of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 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. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by e-mail (provided that notice is followed up by another method permitted under this Section, unless receipt is otherwise confirmed); the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws’ provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Santa Clara County. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.