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Bloomreach Evaluation License Agreement

IMPORTANT-READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU, YOUR EMPLOYEES, AGENTS AND CONTRACTORS, AND ANY OTHER ENTITY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (COLLECTIVELY, “YOU”)  AND BLOOMREACH, INC., LOCATED AT 82 PIONEER WAY, MOUNTAIN VIEW, CA 94041 (IF YOU RESIDE IN THE UNITED STATES OF AMERICA OR CANADA) OR BLOOMREACH B.V, LOCATED AT OOSTEINDE 11, 1017 WT AMSTERDAM THE NETHERLANDS (IF YOU RESIDE OUTSIDE OF UNITED STATES OF AMERICA OR CANADA) (“BLOOMREACH”) FOR THE BLOOMREACH SOFTWARE PRODUCT ACCOMPANYING THIS AGREEMENT, WHICH MAY INCLUDE SOURCE CODE, ALGORITHMS OR OTHER CODE, INCLUDING THE UNDERLYING STRUCTURE, SCHEMA, FUNCTIONS, METHODS OF OPERATION AND IDEAS RELATING TO THE SOFTWARE, ASSOCIATED MEDIA, PRINTED MATERIALS AND ONLINE OR ELECTRONIC DOCUMENTATION (“SOFTWARE”).  BEFORE ACCESSING THE SOFTWARE OR CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE, YOU MUST READ, ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THIS BLOOMREACH EVALUATION LICENSE AGREEMENT (“AGREEMENT”). BY PRESSING THE “I ACCEPT” BUTTON, YOU CREATE A BINDING AGREEMENT AND BY USING, INSTALLING, DOWNLOADING, OR OTHERWISE ACCESSING ANY PART OF THE SOFTWARE, YOU ARE REAFFIRMING THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ACCEPT WITHOUT LIMITATION OR QUALIFICATION ALL OF ITS TERMS AND CONDITIONS.  IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT DOWNLOAD OR ACCESS THE SOFTWARE IN ANY WAY. IF YOU ARE ACQUIRING THE SOFTWARE ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
 

  1. Scope of Agreement. 
    You may test and evaluate the Software under the terms and conditions of this Agreement for a period of 90 days from the date You accept this Agreement (“Evaluation Period”). You may conduct internal, non-commercial testing and evaluation of the Software solely for the purpose of assessing whether You desire to enter into a business relationship with BloomReach (the “Purpose”).  This is solely an evaluation license and in no event are You permitted to use the Software in a production environment.  For clarity and without limitation, production environment consists of any use for non-evaluation purposes, including use of the Software in publicly reachable website domains or intranets.  Nothing herein obligates either party to proceed with any other transaction between them, including but not limited to licensing the Software. BloomReach is not obligated to make the Software available as a commercial product.  In the event You wish to extend the Evaluation Period for any reason, You must obtain written consent prior to the end of the Evaluation Period by submitting a request at https://developers.bloomreach.com/license-extension. Upon receipt of such consent, Your Evaluation Period shall be extended for the number of days set forth in such written consent from BloomReach.

  2. License Grant and Restrictions. 

    1. License Grant.
      Subject to the terms and conditions set forth herein, BloomReach hereby grants You and Your Users a personal, nonexclusive, nontransferable, nonsublicensable, royalty-free license to (i) use, download, install, and access the Software on User’s individual work computers or Your own private hosted cloud, if You are receiving a downloadable version of the Software, or (ii) use and access the Software if you are accessing the Software through a BloomReach hosted cloud service, and for both subsection 2(a)(i) and (2(a)(ii) solely for the Purpose, and during the Evaluation Period. “User” means the individual(s) in Your company who are authorized by You and BloomReach to use or access the Software. You shall ensure that Users take reasonable security precautions to prevent the Software from being seen or accessed by unauthorized individuals whether stored on User’s hard drives or via online access.  

    2. Restrictions. 
      You will not use, download, install, or access the Software except as expressly authorized by this Agreement.  Without limiting the generality of the foregoing, You will not: (i) sell, resell, distribute, bundle, use the Software for development purposes under any circumstances or make the Software available in any form to any third party; (ii) copy, modify, merge, disclose, reverse engineer, decompile, disassemble, translate, or otherwise attempt to derive the design, source code or underlying algorithms, file formats or programming or interoperability interfaces of the Software unless applicable law prohibits such reverse engineering restrictions; (iii) create any derivative work based upon, the Software; (iv) sublicense or otherwise transfer or dispose of, or assign, share, rent, lease, grant a security interest in, or otherwise transfer the Software or Your right to use the Software; or (v) use the Software for any commercial purposes.  There are no implied rights under this Agreement.

    3. You may permit your agents or contractors to access the Software, provided You remain responsible for compliance by all such agents or contractors with all the terms and conditions of this Agreement. Any such use of the BloomReach Software by Your agents or contractors shall be for the sole benefit of the Purpose during the Evaluation Period and subject to the terms and conditions of this Agreement.

    4. Proprietary Rights. 
      You acknowledge and agree that BloomReach is the exclusive owner of all right, title, and interest in and to the Software (including without limitation, any software or documentation associated with the Software and all updates, corrections, modifications, and new versions thereof) and all intellectual property rights related thereto or inherent therein, including without limitation copyright, patent, trade secret and trademark rights (collectively, “BloomReach Property”).  You will treat BloomReach Property as proprietary and confidential information of BloomReach subject to the terms and conditions set forth herein.  You do not acquire title to the BloomReach Property or any intellectual property or other rights related thereto, whether by implication, estoppel or otherwise, except for the limited evaluation license granted hereunder.

    5. Open Source. 
      If any open source software is incorporated into the Software, Your rights with regard to the open source software will be governed by the applicable open source license. A list of open source software used in BloomReach Products can be found at https://documentation.bloomreach.com/library/about/open-source-components-integrated-in-and-with-brxm.html.

    6. Proprietary Notices. 

      You will not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained or included in the Software and You will reproduce and copy all such notices and legends on all copies of any such Software that BloomReach expressly and in writing permits you to make.
       
  3. Evaluation and Feedback. 

    1. Evaluation. 
      You will cooperate and consult with BloomReach in the evaluation of the Software based on Your operation, use, and testing of the Software.  

    2. Feedback. 
      You will promptly provide feedback to BloomReach based on the evaluation results for the Software including, without limitation, any flaws, errors, bugs or other problems You find in the Software as well as all of Your suggested improvements or modifications of the Software, and all related know-how, created under this Agreement regarding improvement or modification of the Software whether prepared by BloomReach or You, during the course of or as a result of this Agreement (collectively, “Feedback”).  BloomReach owns all right, title, and interest in and to the Feedback and all intellectual property rights inherent therein or related thereto.  You hereby assign to BloomReach all right, title and interest in and to the Feedback. You will do all acts reasonably required to perfect and enforce such rights.  All such Feedback will be deemed to be BloomReach’s Confidential Information and will be subject to the restrictions set forth herein.

    3. Access. 
      You will grant BloomReach reasonable access to Your facilities, networks and equipment as necessary for BloomReach to perform any inspection, evaluation or maintenance of the Software and your compliance with the terms herein.
       

  4. Term and Termination.

    1. Term. 
      This Agreement will terminate upon the expiration of the Evaluation Period unless terminated earlier in accordance with this section (“Term”).

    2. Termination. 
      Either party may terminate this Agreement at any time by giving notice to the other party.  

    3. Effect of Termination. 
      Upon expiration or termination of this Agreement for any reason, You will immediately and permanently discontinue all use of the Software, return to BloomReach the Software and all property (of whatever description or nature) belonging to BloomReach, and purge all Software components from Your computer systems (including your private hosted cloud), and storage media or devices, or destroy the same, and certify to BloomReach, in writing, that all copies and partial copies thereof have been returned or completely destroyed and are no longer being used. 

    4. Survival. 
      Section 2.d (Proprietary Rights), Section 3 (Evaluation and Feedback), Section 4c (Effect of Termination), Section 4(d) (Survival), Section 5 (Confidentiality), Section 6 (No Warranties; Disclaimer), Section 7 (Limitation of Liability), and Section 8 (Miscellaneous) will survive any expiration or termination of this Agreement.
       

  5. Confidentiality.

    1. Confidential Information. 
      All information marked as confidential, or that a reasonable person could infer as confidential from the circumstances, including business, technical, financial or other information disclosed by BloomReach to You pursuant to this Agreement, is BloomReach’s confidential information (collectively, “Confidential Information”).  The Software, and all Feedback, including without limitation, any security vulnerability or run-time errors identified by the Software or You while using the Software will be deemed to be BloomReach’s Confidential Information.  You will not disclose any information about the Software, its design and performance specifications, its code, and the existence of the evaluation and its results to any third party, except as expressly authorized in writing by BloomReach. You will hold in confidence and will not use or disclose to any third party any BloomReach Confidential Information.  You may only disclose BloomReach’s Confidential Information to Users who have a legitimate “need to know,” have been advised of the obligations of confidentiality under this Agreement and are bound to You in writing to obligations of confidentiality no less stringent than those set out in this Agreement. You may only use BloomReach’s Confidential Information as necessary to perform Your obligations or exercise Your rights under this Agreement and for no other purpose. You will be liable for any breach of this Agreement by Users.

    2. Exclusions. 
      You will not be obligated under this section with respect to Confidential Information that You can document: (i) is or has become readily publicly available without restriction through no fault attributable to You or Your personnel, (ii) is received, without restriction, from a third party lawfully in possession of such information and lawfully empowered to disclose such information, or (iii) was rightfully in Your possession without restriction prior to its disclosure by BloomReach.

    3. Injunctive Relief. 
      Due to the unique nature of BloomReach’s Confidential Information, any breach by You of this Section 5 will cause BloomReach irreparable harm for which recovery of damages would be inadequate and BloomReach will be entitled to injunctions and other appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it may have at law.
       

  6. NO WARRANTIES; DISCLAIMER. THE SOFTWARE IS PROVIDED “AS IS.”  BLOOMREACH MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE, EXPRESS OR IMPLIED, AND ESPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT.  BLOOMREACH DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, FAULT-TOLERANT, OR ERROR-FREE, THAT ANY SOFTWARE ERRORS WILL BE CORRECTED, THAT THE SOFTWARE WILL EVER BE COMPLETED OR COMMERCIALLY AVAILABLE, THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR HARDWARE OR WITH YOUR INFORMATION TECHNOLOGY ENVIRONMENT.  BLOOMREACH MAY CHANGE THE SOFTWARE AND THE TECHNICAL SPECIFICATIONS, AND ANY OTHER INFORMATION AND MATERIALS AVAILABLE IN CONNECTION WITH YOUR USE OF THE SOFTWARE AT ANY TIME AND WITHOUT NOTICE. BLOOMREACH IS NOT RESPONSIBLE FOR ANY MISUSE OF THE SOFTWARE BY USERS, INCLUDING WITHOUT LIMITATION ANY WILLFUL OR MALICIOUS ACTS BY A USER, OR ANY OTHER ACT OR OMISSION BY A USER IN VIOLATION OF THE TERMS OF THIS AGREEMENT OR USE OF THE SOFTWARE OTHER THAN AS PROVIDED IN THIS AGREEMENT.
     

  7. LIMITATION OF LIABILITY.  IN NO EVENT WILL BLOOMREACH BE LIABLE FOR ANY DAMAGES TO YOU, INCLUDING LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR ACCOMPANYING MATERIALS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.  THIS LIMITATION WILL APPLY EVEN IF BLOOMREACH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL BLOOMREACH’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED $100. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK. You have the sole responsibility for adequate protection and backup of Your data used in connection with the Software, and You will not have any claim against BloomReach for lost data, work delays or lost profits resulting from the use of the Software.   

 

  1. Miscellaneous.

    1. Assignment. 
      You may not assign or otherwise transfer any of Your rights or obligations under this Agreement to any third party (whether by operation of law or otherwise) without the prior written consent of BloomReach.  Any attempted or purported assignment or delegation by You without such required consent will be deemed null and void and deemed a material breach of this Agreement.

    2. Entire Agreement; Severability; and Waiver. 
      This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges and supercedes all prior or contemporaneous oral or written discussions between them.  If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.  No waiver of any of the provisions of this Agreement will be deemed or constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver.  

    3. Modification.
      BloomReach may modify the terms and conditions of this Agreement from time to time by providing You an updated copy of this Agreement.  You understand that BloomReach reserves the right to make such modifications. Your continued access to or use of the Software after any such modification will constitute Your consent to the modification. 

    4. Governing Law.
      If You reside in the United States of America or Canada as represented by the contact information You provided during registration, 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 will be brought exclusively in the state or federal courts located in Santa Clara County. If You reside outside of the United States of America or Canada as represented by the contact information You provided during registration, this Agreement will be governed by the laws of The Netherlands and any legal action or proceeding relating to this Agreement will be brought exclusively in Amsterdam, The Netherlands.  Notwithstanding the foregoing, BloomReach will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief. In any judicial proceeding arising out of this Agreement, the prevailing party will be entitled to recover all reasonable expenses associated with such proceeding (including, without limitation, reasonable costs and fees of attorneys and other professionals).  

    5. Independent Contractors. 
      The parties are independent contractors, and nothing in this Agreement will be construed to create a joint venture or partnership or otherwise give rise to fiduciary obligations between the parties. Neither party has the right or authority to assume or create any obligations or to make any representation, warranties or commitments on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.

    6. No Export. 
      Under no circumstances will You remove or export from the United States or allow the export or re-export of the Software 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.

    7. Government End-Users.
      Elements of the Software are commercial computer software.  If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense.  All other use is prohibited.

    8. Notice. 
      Except for a request to extend the Evaluation Period which shall be in accordance with Section 1 of this Agreement, You will deliver all notices to BloomReach required or permitted under this Agreement in writing and (i) personally, (ii) by certified, registered or express U.S. mail, postage prepaid, or (iii) by Federal Express or other similar commercial delivery service, to the following address: BloomReach, Inc., located at 82 Pioneer Way, Mountain View, CA 94041 (if you reside in the United States of America or Canada) or BloomReach B.V, located at Oosteinde 11, 1017 WT Amsterdam The Netherlands (if you reside outside of United States of America or Canada), Attention General Counsel.  BloomReach will deliver notices to You to the physical or email address You provide upon Your registration.  A printed version of this Agreement and of any notices given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.