Bloom Terms and Conditions
This Agreement constitutes a legal agreement between you ("You" or "Your") and Bloom Apps, Inc., a Delaware corporation ("Bloom" or "Vendor"). As used herein, "You" shall include Your employees, subcontractors, agents and representatives, all of which shall be bound by the terms of this Agreement. Bloom is the developer of the App, associated Software and the Bloom Services (each capitalized term, as defined below). The App and Software enable a person who has downloaded a copy of the App and signed up as a user to request services from businesses who have executed this Agreement and have downloaded and are using the App.
Bloom provides a suite of business administration solutions to support proprietors and businesses but does not provide actual business services outside the Bloom Suite of Services. You represent and warrant You are an independent company (or sole practitioner) in the business of providing services, which You represent and warrant You are authorized to conduct in the state(s) and jurisdiction(s) in which You operate. You desire to enter into this Agreement for the purpose of accessing and using the Bloom Services, the App and Software in accordance with the terms and conditions below.
In order to use the Bloom Services, the App and the associated Software, You must agree to these terms and conditions. Upon Your creating a Bloom account, You and Bloom shall be bound by the terms and conditions set forth herein.
In addition to the terms defined elsewhere in this Agreement, the following definitions apply:
"Affiliated Company" means a company that directly or indirectly is under control of or controls that relevant party.
"App" means the software application developed, owned, controlled, managed, maintained, hosted, licensed and/or designed by Bloom (or its Affiliated Companies) to run on smartphones, tablet computers and/or other devices, through which the Bloom Service is made available.
"Appointment" means services scheduled by the User with You through the Bloom App or the Bloom Software.
"Charge" means the amount (including applicable taxes and fees) that You have negotiated to receive from the User for Your Services and collected from the User upon booking of an Appointment.
"City" means the state, city, municipality, place, region or territory in which the Service are made available by You.
"Data" means all data with regard to or transmitted using the App, the Website, the Bloom Service or the Business ID, or data relating to the User and/or the Appointment.
"Extra Charges" means any transportation and location expenses, as well as any extraordinary expenses that You may incur through special accommodations made by You to the User in connection with the Services.
"Fee" means the commission paid by You to Bloom for Bloom Services.
"Intellectual Property Right" means any patent, copyright, invention, database right, design right, registered design, trademark, trade name, brand, logo, slogan, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .corn, .nl,,fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction anywhere in the world.
"User Addendum" means the terms and conditions that You are permitted to add to the required provisions of the Services Agreement. The Addendum is specific to Your services and location; provided, however, that, if and to the extent it conflicts with any provision of the Services Agreement, the Services Agreement will govern and control.
"Business ID" means the identification and password key assigned by Bloom to a Business that You can use to access the App.
"Service(s)" means the service made available or rendered by You upon request of the User through the App.
"Services Agreement" means the agreement between You and each User requesting Your services containing terms and conditions required by Bloom and available on the Website.
"Bloom Service"means the suite of business administration services made available through the App or Software, including on-demand, lead-generation service through the App, SMS (text messaging), web based requests or such other platforms, communication media or channels as are from time to time operated and made available by or on behalf of Bloom that allow a User to request Services from You as available to and accepted by the User. "Bloom Services" also includes Bloom's arrangement for a third-party payment processor or mobile payment platform to process the Charge for an Appointment requested via the App and distribution of the Charge (minus the Fee) to You.
"Software" means Bloom's mobile application and associated software, including but not limited to the software running the App and the Website.
"User" means a person or business who has signed up and is registered with Bloom for the use of the App and/or the Bloom Service.
"User Information" includes all information about a User and the Appointment scheduled by the User provided by Bloom to You via the App including, without limitation, the User's name, and e-mail address.
"Website" means the Bloom website www.bloom.io.
- License Grant
- USE OF AND ACCESS TO BLOOM SERVICE
Bloom hereby grants You a non-exclusive, non-transferable, right to use the App, the Software and Bloom Service, subject to the terms and conditions of this Agreement, for the sole purpose of providing and rendering Your Services to and for the benefit of the Users. All rights not expressly granted to You are reserved by Bloom and its licensors. Bloom may rescind Your License Grant in response to violations of these terms.
You shall not:
- License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Bloom Service, the Software, or the App;
- Modify or make derivative works based upon the Bloom Service or the Software;
- Create Internet "links" to the Website or the App or "frame" or "mirror" any portion of the App, Website or Software on any other server or wireless or Internet-based device;
- Reverse engineer, decompile, modify, or disassemble, except as allowed under the applicable law;
- Access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Bloom Service, App, Website or Software, or (c) copy any ideas, features, functions or graphics of the Bloom Service, the App, the Website or the Software; or (vi) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Bloom Service or Software.
In addition, You may not use the Software, App, Website or Bloom Services to:
- Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- Send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
- Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- Interfere with or disrupt the integrity or performance of the Software or Service or the data contained therein; or
- Attempt to gain unauthorized access to the Software or Service or its related systems or networks contact directly, for purposes of providing services in circumvention of the Bloom Service, clients who come to You as a result of their use the Bloom Services, Website, or Software.
You acknowledge and agree that the Software, App, Website or the Bloom Service may, from time to time, be unavailable (e.g. due to scheduled maintenance or system upgrades) and that Bloom does not guarantee a specific or minimum availability of the Software, App, Website or the Bloom Services.
Bloom (and its Affiliated Companies and licensors, where applicable) shall own and have all rights (including Intellectual Property Rights) in and to the App, the Website, the Software, the Bloom Services, the Business ID and the Data. (Collectively, "Bloom Property"). For avoidance of doubt, Bloom Property will not include images, if any, posted by You on the Website or the App as samples of Your work, with respect to which images You grant Bloom a nonexclusive nontransferable royalty-free license to display the images on the Website and the App for as long as You continues to use the Bloom Services. If You may, by operation of applicable law or otherwise, obtain any rights (including Intellectual Property Rights) in relation thereto, these rights shall be and are hereby transferred (insofar permitted under the applicable law, in advance) to Bloom (rights obtained should be transferred via You). Where a transfer may not be permissible under the applicable mandatory law, You hereby undertakes to grant and to procure from You a grant to Bloom of a perpetual, exclusive, world-wide and transferable right and license under any such non-transferable rights.
- USE OF AND ACCESS TO BLOOM SERVICE
- Your Obligations
You shall have the sole responsibility for any obligations or liabilities to Users or third parties (such as vendors and subcontractors) that arise from the provision of Your Service. By using the Bloom Services to receive and accept requests for Appointments and by providing the Your Service to Users, You accept and agree that You are creating a legally enforceable and binding contract solely between You and the User. Bloom shall not be responsible or liable for the actions, omissions, and behavior of the User in or in relation to the Your activities. You assume all risks associated with collecting payment from Users and you agree to indemnify Bloom, as outlined below, for any disputes arising from or relating to Your Appointments.
You acknowledge and agree that it is solely Your responsible for taking such precautions as may be reasonable and proper (including taking out adequate insurance in conformity with standard industry practice and in conformance with any applicable regulations or other licensing requirements) regarding any acts or omissions of the User, and You agree Bloom and/or the Bloom Services are not intended for legal advice or risk management. You represent and agree that You shall comply with, adhere to and observe the terms and conditions set forth in this Agreement, the Services Agreement and the Services Addendum, and all applicable laws, regulations, rules, statutes or ordinances governing or otherwise relating to, Your Service. You shall provide copies of all executed Service Addendums to Bloom upon Bloom's request.
- EMPLOYEES AND EQUIPMENT
You represent and warrant that You agree Bloom does not exercise any control over You (or the Your employees' or agents') actions or the operation or physical condition of any equipment used in Your Services (except as provided under the Agreement). You agree to indemnify Bloom, in accordance with these terms, for all claims made by Users relating to Your (or the Your employees' or agents') actions or the operation or physical condition of any equipment used in Your Services
- PRIVACY AND SECURITY SAFEGUARDS.
You will safeguard, protect, and keep the Business ID at all times confidential and safely stored and shall not disclose it to any person other than those who need to have access to the Business ID in order to render and/or provide Your Service. You will also safeguard, protect, and keep the User Information received from Bloom and the details of any Appointment, at all times confidential and shall not disclose it to any person or store the information in any manner, except as required by law. You will immediately notify Bloom of any actual or suspected security breach or improper use of the App, the Business ID, the Data, or the User Information.
- COPYRIGHT LICENSE
You agree to deliver the images to Users, with a copyright license (General Use or commercial, as applicable).
- Use of Bloom Services and Software
- Business ID
Bloom will provide You with a unique URL, displaying Your profile. The URL may contain specific key words requested by You, subject to the availability of those key words and Bloom's professionalism standards. Bloom will have the right, at all times and at Bloom's sole discretion, to change Your URL and to reclaim, prohibit, suspend, limit or otherwise restrict the You from accessing or using their URL, the App or the Website.
Once You accept a User's request for an Appointment, Bloom will provide the User Information to You via the App.
- USER REVIEWS
Users who have used Your Services will be asked by Bloom to comment on Your Services and to provide a score for Your Services and You. Bloom reserves the right to post these comments and scores on the App or the Website (or such other howsoever or whatsoever platforms as owned, managed, controlled or managed by Bloom). Bloom may also request You to comment on and to provide a score for the User on the App. You will provide accurate and objective feedback that does not violate any applicable laws and regulations. You acknowledge that Bloom is a platform (without any obligation to verify) and not a publisher of these comments and scores. Further You represent and agree Bloom has a legal obligation to display reviews and comments fully and accurately. Beyond the regulatory requirements, Bloom shall not have and hereby disclaims any liability and responsibility for the content and consequences of (the publication or distribution of) any comments, scores, or reviews. You acknowledge that Bloom desires to provide Users with the opportunity to connect with businesses that maintain the highest standards of professionalism. Bloom reserves the right, at all times and at Bloom's sole discretion, to reclaim, prohibit, suspend, limit or otherwise restrict You from accessing or using the App or the Website if You fails to maintain the standards of service required for the users of the Bloom Software.
- DISCLOSURE OF INFORMATION
In case of a complaint, dispute or conflict between You on the one hand and the User on the other hand or in other appropriate instances where a legitimate reason for such disclosure exists (for example, receipt by Bloom of a subpoena or warrant requesting information), Bloom may, but shall not be required to — to the extent permitted by applicable laws and regulations- provide the User, You and/or the relevant authorities the Data (including personal data) of You or the User. Bloom may also disclose certain information of Yours as set forth in this Agreement.
- Business ID
- PAYMENT TO BLOOM, TAXES, PAYMENT PROCESSOR
As part of the Bloom Services, Bloom will arrange for a third-party payment processor to process the Charge for each Appointment requested via the App to the User-designated credit card or mobile payment platform. You agree that Bloom may deduct its Fee payable on all Charges earned by You. The Fee is thirty cents (0.30) + 2.9% of the Charge and may change from time to time. You will receive a written notice in the event of a change in Fee percentage.
If you receive or seek to receive fees for any Charges, you agree that you are responsible for: (i) providing users disclosures required by applicable laws, including without limitation, (ii) ensuring that you have accurately and fairly described and presented the Appointment for which you are seeking fees, and the terms and conditions thereof, and further ensuring that you do not engage in unfair, deceptive, or abusive acts or practices ("UDAAP"); (ii) ensuring that you are not conducting or enabling any activities our Payment Processor (as defined below) has identified as a restricted business or activity in the list made available at https://stripe.com/restricted-businesses (collectively, "Restricted Businesses"); and (iii) determining, paying, and withholding all applicable Taxes (as set forth below). If you seek to charge or receive a fee or payment from another User through the Services, it is your responsibility to obtain that User's authorization to charge User-designated credit card or mobile payment platform for each transaction, in compliance with these Terms of Service, the Stripe Agreements, all applicable laws, and the requirements of any payment network that facilitates the transaction. You may not impose any fee or surcharge on any User that makes or requests to make an Appointment.
You have sole and exclusive responsibility to determine what, if any, taxes apply to transactions or the payments you receive in connection with your use of the Bloom Services ("Taxes"). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority in the applicable jurisdiction. We are not obligated to, nor will we, determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any Appointment. Bloom retains the right, but not the obligation, at its sole discretion, to complete and file tax or related reports with tax authorities regarding transactions in those jurisdictions where we deem such reporting necessary. You hereby indemnify and hold Bloom harmless from and against any and all liability related to Taxes and filings made by Bloom respect thereof. You agree that we may send you any tax-related information electronically.
- PAYMENT PROCESSING
- INVOICING AND PAYMENT TERMS
Payment of the Charges to You shall be made in accordance with the payment method designated by You seven days after the date on which You indicate that Your Services were delivered (by marking the project complete, at which point the User will receive an e-mail notice of the completed project). The receipts may include specific information regarding You in relation to Your Services, including but not limited to Your name, address and contact information. You will notify Bloom of any corrections necessary for receipts within three (3) business days after any relevant change. Unless Bloom receives timely notification (three (3) business days) of any correction needed, Bloom shall not be liable for any mistakes in the receipt.
- REFERRAL AND LOYALTY PROGRAMS
From time-to-time, we may develop referral or loyalty programs to reward you for using the Website and referring other businesses to it. The terms and conditions of such programs (such as their duration and benefits) will be emailed to you and will be available in your Bloom account for the duration of the program
- PAYMENT TO BLOOM, TAXES, PAYMENT PROCESSOR
- REPRESENTATIONS AND WARRANTIES:
You represent and warrant to Bloom that for the term of this Agreement:
- You shall hold, comply and shall continue to hold and comply with all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its activities, operations and business in general and Your Service in particular;
- You shall comply with all local laws and regulations, including the laws related to the operation of Your business and will be solely responsible for any violations of such local laws and regulations;
- You have appropriate and up-to-date level of expertise and experience to provide Your Service and Your Service will be supplied, provided and supported by You, or Your appropriately qualified and trained employees acting with due skill, care and diligence;
- You maintain a valid (personal injury, third party or general) liability insurance and such other insurances as are considered market practice (all in industry-standard coverage amounts) for the operation of Your business. You shall add Bloom to its liability insurance policy as an additional insured and shall upon first request of Bloom provide Bloom with a copy of the insurance certificate.
- Your employees are covered by workers' compensation insurance, as required by law. If permitted by law, You may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers' compensation insurance. Your subcontractors may also, to the extent permitted by law, maintain occupational accident insurance in place of workers' compensation insurance.
- Your equipment is in good operating condition and meets the applicable industry safety standards.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BLOOM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BLOOMMAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Subject to the exceptions set forth in this Agreement, You agree to indemnify, defend and hold Bloom (and its Affiliated Companies and employees and, at the request of Bloom, Bloom's licensors, suppliers, officers, directors and subcontractors) harmless from and against any and all claims, demands, expenses (including legal fees incurred at trial or on appeal), damages, penalties, fines, social contributions and taxes by a third party (including Users, regulators and governmental authorities) directly or indirectly related to Your breach of any representation, warranty or covenant of this Agreement, or Your Service or any negligent or willful misconduct of Your employees or agents.
- REPRESENTATIONS AND WARRANTIES:
- Relationship Between Parties
The relationship between the Parties is solely that of independent contracting parties. The Parties expressly agree that this Agreement is not an employment agreement or employment relationship. The parties further agree that no employment contract is created between Bloom and You. The Parties expressly agree that no joint venture, partnership, employment, or agency relationship exists between You, Bloom or any third-party provider as a result of this Agreement or use of the Bloom Service, the App, the Website or the Software. You acknowledge and agrees that it has no authority to bind Bloom and undertakes not to hold itself out and to ensure that You does not hold himself or herself out, as an employee, agent, authorized representative, franchisee or any affiliate of Bloom. In addition, You will not hold Yourself out as a Service endorsed or certified by Bloom. Where, by implication of law or otherwise, You may be deemed an agent or representative of Bloom, You undertakes and agrees to indemnify, defend and hold Bloom harmless from and against any claims by any person or entity based on such implied agency relationship.
- LIMITATION OF BLOOM LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BLOOM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BLOOMHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I). THE USE OR THE INABILITY TO USE THE SERVICE; (II). THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III). UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV). STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V). ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL BLOOM TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID BLOOM IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM FLORIDA, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF FLORIDA. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF FLORIDA, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
All defenses (including limitations and exclusions of liability) in favor of Bloom will apply (i) regardless of the ground upon which a liability is based (whether default, tort or otherwise), (ii) irrespective of the type of breach of obligations (guarantees, contractual obligations or otherwise), (iii) for all events and all agreements together, (iv) as long as no event of willful misconduct or gross negligence of Bloom or its management has occurred, and (v) also for the benefit of its Affiliated Companies and employees and, at the request of Bloom, Bloom's licensors, suppliers and subcontractors.
- NO WARRANTIES BY BLOOM
Bloom makes no guarantees, warranties, or representations as to the actions or conduct of any Users who may request Your Service from You. Responsibility for the decisions You make regarding Your Services offered via the Website or the App (with all its implications) rests solely with You.
- NO DILIGENCE OF USERS OF THIRD PARTIES
You agree that it will take reasonable precautions in all actions and interactions with any third party through the Bloom Service. Bloom WILL NOT REVIEW OR ASSESS THE SUITABILITY, LEGALITY OR ABILITIES OF ANY USER OR OTHER THIRD PARTIES THAT YOU MAY MEET THROUGH THE WEBSITE, THE APP OR THE SOFTWARE. YOU EXPRESSLY WAIVES AND RELEASES Bloom FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM ITS USE OF THE WEBSITE, THE APP, THE SOFTWARE OR Bloom SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE WEBSITE, THE APP, THE SOFTWARE OR THE Bloom SERVICE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT."
- LIMITATION OF BLOOM LIABILITY
- Term, Termination and Suspension
This Agreement shall commence on the date this Agreement is accepted by You and shall continue in force and effect until it is terminated by either party by written notice effective seven calendar days after the date on which the notice is received. Either party may terminate this Agreement upon insolvency or bankruptcy of the other party. In addition, Bloom may terminate this Agreement automatically, without any notice requirement, as soon as You no longer qualify, under the applicable law, the quality standards of Bloom or the provisions of this Agreement, to provide Your Service or to use the Website, the App, the Software or the Bloom Service.
Each party may suspend this Agreement in respect of the other party in the event of a curable breach by the other party of any term of the Agreement (including but not limited to breach of representations or receipt of a significant number of User complaints), provided that, if the breach is not cured within 30 calendar days of the breach notice, the non-breaching party can terminate this Agreement immediately and without any further notice.
Upon termination of the Agreement, You shall promptly return all Data provided to it by Bloom without withholding any copies thereof.
Parties understand and agree that in the performance of this Agreement, each party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the "Confidential Information"). Confidential Information includes Data, business, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
Each party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons" ) to maintain, the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all copies of Confidential Information upon written request of the other party. Notwithstanding the foregoing, (a) Confidential information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving Party, (ii) was possessed by the receiving Party prior to the date of this Agreement, (iii) is disclosed to the receiving Party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit or restrict a party from disclosing this Agreement (including any technical, operational, performance and financial data) in confidence to an Affiliated Company.
Bloom reserves the right to modify the terms and conditions of this Agreement or at any time, effective upon publishing an updated version of this Agreement at https://bloom.io. You hereby expressly acknowledge and agree that, by using or receiving the Bloom Service, and downloading, installing, or using the Software, You and Bloom are bound by any future amendments and additions to this Agreement or documents incorporated herein, including the Fee schedule. Continued use of the Bloom Service or Software after any such changes shall constitute Your consent to such changes. You are responsible for regularly reviewing this Agreement.
If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
Neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that Bloom may assign, transfer, encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to (a) an Affiliated Company or (b) in the event of a merger or sale of assets without the prior written consent of You.
This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings, or statements regarding such subject matter. This Agreement shall be governed by Washington law, without regard to its choice or conflicts of law provisions. The failure of Bloom to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Bloom in writing.
- Dispute Resolution by Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Bloom, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Bloom are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND BLOOM AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BLOOM AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
- Pre-Arbitration Dispute Resolution
Bloom is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). Please e-mail us at [email protected] and we will promptly provide an address ("Notice Address") to which you can address postal mail. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Bloom and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Bloom may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Bloom or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Bloom is entitled.
- Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's (“AAA”) rules and procedures, including the AAA's Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrarily of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Bloom and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Bloom agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Bloom will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Bloom will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bloom will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
- Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Bloom agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Bloom written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
- Agreement to Arbitrate
You agree that Bloom, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Bloom believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Bloom may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be affected without prior notice, and acknowledge and agree that Bloom may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Bloom will not be liable to you or any third party for any termination of your access to the Service.
- User Disputes
You agree that you are solely responsible for your interactions with any other user in connection with the Service, including for any fee disputes between you or any other user or for any User Transaction, and Bloom will have no liability or responsibility with respect thereto. Bloom reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Bloom and govern your use of the Service, superseding any prior agreements between you and Bloom with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software. These Terms of Service will be governed by the laws of the State of Florida without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Bloom agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Broward County, Florida. The failure of Bloom to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice 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. You may not assign this Terms of Service without the prior written consent of Bloom, but Bloom may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
- Your Privacy
By using the Service, you consent to our collection and use of personal data as outlined at Bloom.io/privacy. Bloom does not sell User data.
- Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Bloom at [email protected].
Questions? Concerns? Suggestions? Please contact us at [email protected] to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.