Third-Party Software Integration Partnership Terms and Conditions Agreement
These Bloomerang Product Partner Terms & Conditions (the “Agreement“) govern your participation as a Bloomerang Product Partner (if applicable) and is the governing agreement between the applicable Bloomerang contracting entity (“Bloomerang”) and you or the entity you represent (“you“, “You”, or “Bloomerang Product Partner”). This Agreement takes effect upon your submission to become a Bloomerang Product Partner (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts, and if you are entering into this Agreement on behalf of an entity, such as the company for which you work, you represent to us that you have legal authority to bind that entity.
Bloomerang Product Partner Responsibilities. As a Bloomerang Product Partner, you agree to conduct yourself in accordance with Bloomerang’s Acceptable Use Policy and will otherwise act in a reputable and ethical manner.
Additional Terms. This Agreement does not grant you any right to access or use our applications, tools, and platform (the “Services”). To become a Bloomerang Partner, you will be required to agree to additional terms, such as the Bloomerang Acceptable Use Policy, Bloomerang API Terms of Service, and/or the Bloomerang App Directory Agreement, as applicable.
Confidential Information
In connection with the Program, the parties may wish to disclose to each other Confidential Information (as defined herein) related to or in furtherance of the Program (the “Purpose”).
Confidential Information. “Confidential Information” means all confidential information received by a party or any of its Affiliates (as the “Receiving Party”) from the other party or any of its Affiliates (as the “Disclosing Party”) relating to the Disclosing Party’s business (including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information). Notwithstanding the foregoing, in order to be considered “Confidential Information” of the Disclosing Party under this Agreement, such information must be either (1) disclosed in tangible form and be conspicuously marked “Confidential”, “Proprietary” or the like, (2) disclosed in non-tangible form and identified as confidential at the time of disclosure, or (3) information, the nature of which and the manner of disclosure, are such that a reasonable person would understand it to be confidential. The nature and existence of this Agreement, and any potential business relationship between the parties, shall also be considered Confidential Information of both parties. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" (as used in the preceding sentence) means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Confidential Information does not include information that: (i) is at the time of disclosure, or later becomes, generally known to the public through no fault of the Receiving Party or any of its Affiliates, agents, consultants or employees; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a source which, to the knowledge of the Receiving Party, is entitled to disclose it to the Receiving Party; or (iii) is at any time verifiably developed independently by the Receiving Party. If, regarding information under (ii), the Receiving Party becomes aware at any time that the source was not entitled to disclose the information, then such information shall be deemed Confidential Information from that time forward.
Bloomerang Proprietary Elements. Notwithstanding anything to the contrary, to the extent Bloomerang discloses or makes available to you features or functions of the “Bloomerang” software-as-a-service platform that are not publicly available including, without limitation, non-public or pre-release tools, products, environments or APIs and any associated documentation (“Bloomerang Proprietary Elements”), shall constitute Confidential Information belonging exclusively to Bloomerang, and the confidentiality terms of this Agreement shall continue to apply to the Bloomerang Proprietary Elements unless and until the Bloomerang Proprietary Elements become generally available to the public without restriction through no fault of you or any of your Affiliates, agents, consultants or employees.
Feedback. Notwithstanding anything to the contrary, you may provide suggestions, comments, or feedback (“Feedback”) to Bloomerang regarding products and services made available by you or Bloomerang. Any such Feedback will be provided voluntarily, and Bloomerang may use and commercially exploit any and all rights in the Feedback for any purpose without obligation or compensation to you, both during and after the term of this Agreement. Feedback will not be deemed to be your Confidential Information.
Non-Use and Non-Disclosure Obligations. The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third party except to those who have a need to know such information in connection with the Purpose and who have previously been bound by confidentiality obligations no less stringent than those of this Agreement, (iii) not to use Confidential Information whatsoever at any time except as needed in connection with the Purpose, (iv) not to copy or reverse engineer any such Confidential Information, and (v) not to export or reexport (within the meaning of U.S. or other applicable export control laws or regulations) any such Confidential Information or product thereof. The Receiving Party shall be responsible for the acts and omissions of any third party to which it discloses Confidential Information under subsection (ii) herein.
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall use commercially reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding.
Ownership of Confidential Information and Other Materials. As between the Disclosing Party and the Receiving Party, the Disclosing Party shall be the sole and exclusive owner of all its Confidential Information, whether created by the Disclosing Party, the Receiving Party or any third party, and no license or other rights to the Confidential Information are granted or implied hereby. All tangible materials furnished to one party by the other shall remain the property of the party furnishing such materials and shall be returned to that party promptly upon its reasonable request, together with any copies thereof. No license under any patent or other intellectual property right is granted or conveyed hereby or by any disclosure of confidential information made hereunder.
No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY OR COMPLETENESS.
Return or Destruction of Confidential Information. Immediately upon a request by the Disclosing Party at any time, the Receiving Party will destroy or turn over to the Disclosing Party all Confidential Information of the Disclosing Party and all documents or media containing any such Confidential Information and all copies or extracts thereof. The Receiving Party understands that nothing herein (i) requires the disclosure of any Confidential Information of the Disclosing Party or (ii) requires the Disclosing Party to proceed with any transaction or relationship.
Injunctive Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there may be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the Disclosing Party; therefore, upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law.
Term of Protection. The confidentiality obligations hereunder apply only to disclosures made during the Term and shall survive for three (3) years from the date of disclosure.
Term and Termination
This Agreement will commence on the Effective Date and will remain in effect until terminated (the “Term”). Either party may terminate this Agreement at any time for convenience by giving the other party 30 days’ written notice of such termination. Bloomerang may also terminate this Agreement immediately if you breach this Agreement.
Limitation on Liability
EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL YOUR OR BLOOMERANG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED TEN THOUSAND DOLLARS ($10,000).
EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, 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. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Miscellaneous
Assignment. Neither party shall assign or transfer, by operation of law or otherwise, any rights or obligations under this Agreement without the prior written consent of the other party, except in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
Severability. If any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
Publicity. You grant Bloomerang the right to use your company name and logo as a reference for marketing or promotional purposes on Bloomerang’s website and in other public or private communications with existing or potential Bloomerang customers, subject to your standard trademark usage guidelines as provided to Bloomerang from time-to-time. Any use by you of any Bloomerang mark must be approved by the Bloomerang Marketing team prior to use in private or public communications. No license under any patent or other intellectual property right is granted or conveyed to you by Bloomerang under this Agreement. We retain the right to remove Applications from the Bloomerang App Marketplace - and if your App is removed, you may no longer use any Bloomerang mark or call yourself a “Bloomerang Partner.” If you intend to use Bloomerang’s name in a press release, you will need to be granted advance written permission.
Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to the parties at the email address set forth in your application and will be deemed to have been duly given the first business day after sending by email. Updates to the terms of this Agreement will be posted to our Site and we may email you to inform you of any changes.
Bloomerang Contracting Entity; Venue; Governing Law; Waiver of Jury Trial; Fees. All references to “Bloomerang” under this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with the Agreement, and which courts have jurisdiction over any such dispute or lawsuit,
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the applicable venue above will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce the rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Entire Agreement. This Agreement constitutes the entire agreement between the parties. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.