This Agreement constitutes a legal agreement between you ("Photographer" or "You") and Picr Inc, DBA Bloom, a Delaware corporation ("Bloom" or "Vendor"). 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 photography services from photographers who have executed this Agreement and have downloaded and are using the App.
Bloom does not provide photography services and is not the photography business. You are an independent company (or sole practitioner) in the business of providing photography services, which business You are authorized to conduct in the state(s) and jurisdiction(s) in which You operate. As used herein, "You" and "Photographer" shall include Your employees, subcontractors, agents and representatives, all of which shall be bound by the terms of this Agreement. You desire to enter into this Agreement for the purpose of accessing and using the Bloom Services, the App and Software to increase Your photography business.
In order to use the Bloom Services, the App and the associated Software, You must agree to the terms and conditions that are set out below. Upon Your electronic execution of this Agreement, 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, by having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights.
"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 a photography scheduled by the User with the Photographer through the use of the App or the Software.
"Charge" means the amount (including applicable taxes and fees) that the Photographer is entitled to charge the User for the Photography Services, which amount will be specified on Website and collected from the User upon booking of an Appointment.
"City" means the state, city, municipality, place, region or territory in which the Photography Service are made available by the Photographer.
"Data" means all data with regard to or transmitted using the App, the Website, the Bloom Service or the Photographer 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 the Photographer may incur as a result of special accommodations made by Photographer to the User in connection with the Photography Services.
"Fee" means the commission paid by the Photographer to Bloom for Bloom Service.
"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.
"Photographer Addendum" means the terms and conditions that Photographer is permitted to add to the required provisions of the Photography Services Agreement. The Photographer Addendum is specific to Photographer's services and location; provided, however, that, if and to the extent it conflicts with any provision of the Photography Services Agreement, the Photography Services Agreement will govern and control.
"Photographer ID" means the identification and password key allotted by Bloom to a Photographer by which the Photographer can access and use the App.
"Photography Service" means the photoshoot, development, printing, color adjustment and other photography service made available or rendered by the Photographer upon request of the User through the App.
"Photography Service Agreement" means the agreement between the Photographer and each User requesting the Photographer's services containing terms and conditions required by Bloom and available on the Website.
"Bloom Service" means the 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 Photography Service from a Photographer as available to and accepted by the User. "Bloom Service" 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 the Photographer.
"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 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 the Photographer 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 Photographer 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 the Photography Service in and/or from within the City to and for the benefit of the Users. All rights not expressly granted to You are reserved by Bloom and its licensors.
Photographer shall not and will ensure that Photographer does 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, Photographer may not use the Software, App, Website or Bloom Service 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 photography services in circumvention of the Bloom Service, clients who come to Photographer as a result of their use the Bloom Service, App, Website or Software.
The Photographer acknowledges and agrees 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 cannot, and does not, guarantee an specific or minimum availability of the Software, App, Website or the Bloom Service.
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 Service, the Photographer ID and the Data. (collectively, "Bloom Property"). For avoidance of doubt, Bloom Property will not include images, if any, posted by the Photographer on the Website or the App as samples of Photographer's work, with respect to which images Photographer grants Bloom a nonexclusive nontransferable royalty-free license to display the images on the Website and the App for as long as the Photographer continues to use the Bloom Service. Insofar the Photographer and/or Photographer 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 by any Photographer should be transferred via the Photographer). Where a transfer may not be permissible under the applicable mandatory law, the Photographer hereby undertakes to grant and to procure from the Photographer a grant to Bloom of a perpetual, exclusive (exclusive also with regard to Photographer and/or Photographer), world-wide and transferable right and license under any such non-transferable rights.
- USE OF AND ACCESS TO Bloom SERVICE
- Photographer’s Obligations
Photographer 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 the Photography Service. By using the Bloom Services to receive and accept requests for Appointments and by providing the Photography Service to Users, the Photographer accepts, agrees and acknowledges that a direct legal relationship is created and assumed solely between the Photographer 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 activities of the Photographer.
- PHOTOGRAPHER COMPLIANCE
Photographer acknowledges and agrees that it is solely 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. Photographer represents and agrees that it shall comply with, adhere to and observe the terms and conditions set forth in this Agreement, the Photography Services Agreement and the Photographer Addendum, and all applicable laws, regulations, rules, statutes or ordinances governing or otherwise relating to, the Photography Service. The Photographer shall provide copies of all executed Photographer Addendums to Bloom upon Bloom's request.
- EMPLOYEES AND EQUIPMENT
Bloom does not and does not intend to exercise any control over the Photographer's (or the Photographer's employees' or agents') actions or the operation or physical condition of any equipment used in the Photography Services (except as provided under the Agreement).
- PRIVACY AND SECURITY SAFEGUARDS.
Photographer will safeguard, protect and keep the Photographer 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 Photographer ID in order to render and/or provide the Photography Service. Photographer 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. Photographer will immediately notify Bloom of any actual or suspected security breach or improper use of the App, the Photographer ID, the Data or the User Information.
- COPYRIGHT LICENSE
Photographer agrees to deliver the images to Users, with a copyright license (General Use or commercial, as applicable), the text of which license is available of the Website.
- PHOTOGRAPHER COMPLIANCE
- Use of Bloom Service and Software by Photographers
- PHOTOGRAPHER ID
Bloom will provide Photographer with a unique URL, displaying Photographer’s profile. The URL may contain specific key words requested by the Photographer, 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 the Photographer’s URL and to reclaim, prohibit, suspend, limit or otherwise restrict the Photographer and/or the Photographer from accessing or using their URL, the App or the Website.
Once the Photographer accepts a User's request for an Appointment, Bloom will provide the User Information to the Photographer via the App.
- USER REVIEWS
Users who have used the Photography Service will be asked by Bloom to comment on the Photography Service and to provide a score for the Photography Service and the Photographer. 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 the Photographer to comment on and to provide a score for the User on the App. Photographer will provide accurate and objective feedback that does not violate any applicable laws and regulations. The Photographer acknowledges that Bloom is a distributor (without any obligation to verify) and not a publisher of these comments and scores. Bloom reserves the right to refuse, edit or remove unfavorable reviews in the event that such reviews include obscenities or violate any privacy laws or any other applicable laws and regulations. Beyond the legal and 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. The Photographer acknowledges that Bloom desires to provide Users with the opportunity to connect with Photographers 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 the Photographer from accessing or using the App or the Website if the Photographer 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 the Photographer 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, Photographer and/or the relevant authorities the Data (including personal data) of the Photographer or the User. Bloom may also disclose certain information of the Photographer as set forth in this Agreement.
- PHOTOGRAPHER ID
As part of 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. Photographer agrees and requests that Bloom deduct its Fee payable on all Charges earned by the Photographer and remit the remainder of the Charge to Photographer. The Fee is 2.9% of the Charge and may change from time to time. Photographer will receive a written notice in the event of a change in Fee percentage.
- INVOICING AND PAYMENT TERMS
Payment of the Charges to Photographer shall be made in accordance with the payment method designated by the Photographer seven days after the date on which the Photographer indicates that the Photography Service has been delivered (by marking the project complete, at which point the User will receive an e-mail notice of the completed project). Bloom operates, and the Photographer accepts, a system for issuing receipts to the User. The receipts may include specific information regarding the Photographer in relation to the Photography Service, including but not limited to the Photographer's name, address and contact information. The Photographer 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 photographers 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
- PHOTOGRAPHER REPRESENTATIONS
The Photographer represents to Bloom that for the term of this Agreement:
- It holds, complies 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 the Photography Service in particular;
- Shall comply with all local laws and regulations, including the laws related to the operation of a photography business and will be solely responsible for any violations of such local laws and regulations;
- The Photographer has appropriate and up-to-date level of expertise and experience to provide the Photography Service and the Photography Service will be supplied, provided and supported by appropriately qualified and trained Photographers acting with due skill, care and diligence;
- The Photographer maintains 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 a photography business. The Photographer 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.
- The Photographer's employees are covered by workers' compensation insurance, as required by law. If permitted by law, Photographer may choose to insure itself against industrial injuries by maintaining occupational accident insurance in place of workers' compensation insurance. Photographer's subcontractors may also, to the extent permitted by law, maintain occupational accident insurance in place of workers' compensation insurance.
- The Photographer’s equipment is in good operating condition and meets the applicable industry safety standards.
- The Photographer maintains at all times the star rating quality described in Section 4.3 above.
Bloom provides, and the Photographer accepts, Bloom Service, the Website, the Software and he App on an "as is" and "as available" basis. Bloom does not warrant or guarantee that the Photographer’s or the User's access to or use of Bloom Service, the Website, the Software or the App will be uninterrupted or error free. Bloom SERVICE AND SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Bloom IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- PHOTOGRAPHER INDEMNIFICATIONS
Subject to the exceptions set forth in this Agreement, the Photographer agrees 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 Photographer’s breach of any representation, warranty or covenant of this Agreement, or the Photography Service or any negligent or willful misconduct of its employees or agents.
- PHOTOGRAPHER REPRESENTATIONS
- 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 the Photographers. 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. The Photographer acknowledges and agrees that it has no authority to bind Bloom and undertakes not to hold itself out and to ensure that the Photographer does not hold himself or herself out, as an employee, agent, authorized representative, franchisee or any affiliate of Bloom. In addition, the Photographer will not hold itself out as a Photography Service provide endorsed or certified by Bloom. Where, by implication of law or otherwise, the Photographer may be deemed an agent or representative of Bloom, the Photographer 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
IN NO EVENT SHALL Bloom's AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY RECEIVED BY THE PHOTOGRAPHER THROUGH THE Bloom PLATFORM IN THE SIX (6) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL Bloom AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA OR DIGITAL FILES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). Bloom AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY PHOTOGRAPHER, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE Bloom SERVICE OR SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE Bloom SERVICE, THE APP, THE WEBSITE OR THE SOFTWARE. PHOTOGRAPHER SHALL HAVE BACK-UPS OF DIGITAL FILES CONTAINING USER’S IMAGES AND DATA.
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 the Photography Service from Photographer. Responsibility for the decisions Photographer makes regarding the Photographer Services offered via the Website or the App (with all its implications) rests solely with the Photographer.
- NO DILIGENCE OF USERS OF THIRD PARTIES
The Photographer agrees 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 PHOTOGRAPHERS MAY MEET THROUGH THE WEBSITE, THE APP OR THE SOFTWARE. THE PHOTOGRAPHER 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 the Photographer no longer qualifies, under the applicable law, the quality standards of Bloom or the provisions of this Agreement, to provide the Photography 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, the Photographer and/ or the Photographer 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 or Photographer hereby expressly acknowledges and agrees that, by using or receiving the Bloom Service, and downloading, installing or using the Software, Photographer 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. Photographer is 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 the Photographer.
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.
- HOW THIS ARBITRATION PROVISION APPLIES
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. g 1 et seq. and is intended to apply to the resolution of all disputes between the parties, including, without limitation, (i) disputes arising out of or relating to this Agreement and Your relationship with Bloom, including the termination of the relationship, (ii) any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and all other federal and state statutory and common law claims, and (iii) disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of any portion of the Arbitration Provision. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial.
- LIMITATIONS ON APPLICATION OF ARBITRATION PROVISIONS
Disputes that may not be subject to pre-dispute arbitration agreement under any federal or state law (e.g., the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203), etc.) are excluded from the coverage of this Arbitration Provision.
- ARBITRATOR SELECTION AND LOCATION
The Arbitrator shall be selected by mutual agreement of Bloom and You. The Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judge who presided in a federal or state court in the state of Washington. If the Parties cannot agree on an arbitrator, one will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services) of Washington. You will have the option of making the first strike. JAMS rules of procedure will apply. The location of the arbitration proceeding shall be in Vancouver, Washington, unless each party agrees in writing otherwise.
- COMMENCING THE ARBITRATION
All claims in arbitration will be subject to the same statutes of limitation that would apply in litigation. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Bloom shall be provided to Bloom 13115 NE Fourth Street, Ste 220, Vancouver WA, 98684. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
- ARBITRATION PROCEEDINGS
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the arbitrator in accordance with the JAMS rules. You and Bloom agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. Accordingly,
- There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action ("Class Action Waiver"); provided, however, that this Class Action Waiver shall not be severable from this Arbitration Provision in any case in which (i) the dispute is filed as a class action and (ii) a civil court of competent jurisdiction finds the Class Action Waiver is unenforceable. In such instances, the class action must be litigated in a civil court of competent jurisdiction.
- There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action ("Collective Action Waiver"). The Collective Action Waiver shall not be severable from this Arbitration Provision in any case in which (i) the dispute is filed as a collective action and (2) a civil court of competent jurisdiction finds the Collective Action Waiver is unenforceable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction.
- There will be no right or authority for any dispute to be brought, heard or arbitrated as a private attorney general representative action ("Private Attorney General Waiver"). The Private Attorney General Waiver shall not be severable from this Arbitration Provision in any case in which a civil court of competent jurisdiction finds the Private Attorney General Waiver is unenforceable. In such instances and where the claim is brought as a private attorney general, such private attorney general claim must be litigated in a civil court of competent jurisdiction.
Although You will not be retaliated against, disciplined or threatened with discipline as a result of You exercising Your rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collective or representative action in any forum, Bloom may seek enforcement of this Arbitration Provision and the Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver under the Federal Arbitration Act and seek dismissal of such actions or claims.
The Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
- ARBITRATION EXPENSES
Each party will pay the fees for its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The parties will share equally the Arbitrator's and arbitration fees.
- ARBITRATION HEARING AND AWARD
The parties will arbitrate their dispute before the arbitrator, who shall confer with the parties regarding the conduct of the hearing and resolve any disputes the parties may have in that regard. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement.
- HOW THIS ARBITRATION PROVISION APPLIES
- Consent to Electronic Communications
You consent and agree that:
This will serve as Your electronic signature, which will have the same effect as if You signed them in ink.
Bloom can provide communications and notices required by law or this Agreement to You electronically via e-mail or through the App or the Website, and all such communications and notices will have the same effect as if Bloom had physically delivered paper communications and notices to You.
If You want a paper copy of any communications, You can print a copy, download the Data, or request a paper copy from Bloom at the address above.
This consent applies to Your current and future use of the Bloom Services, Your Website Profile, all future transactions between You and Bloom, all other communications to You from Bloom.
You can withdraw Your consent by sending a written (electronic or hard copy) notice to Bloom's address provided above effective after a reasonable period of time for processing Your withdrawal. Upon withdrawal, the legal validity and enforceability of prior communications delivered in electronic form will not be affected.
Bloom will not be liable for any loss, liability, cost, expense or claim for acting upon this consent;
Bloom is responsible for sending communications to You electronically, including at the e-mail address I have provided, but Bloom is not responsible for any delay or failure in Your receipt of the e-mails;
Communications include important information concerning Your use of the Bloom Services and You agree to review such communications in a timely manner and to update Your e-mail address as necessary to ensure prompt delivery of e-mails to You.
Communications will be deemed to have been received by You within 24 hours of the time they are posted electronically, or within 24 hours of the time Bloom e-mails them to You unless Bloom receives notice that the e-mail was not delivered; and
Your consent to electronic communications is being provided in connection with a transaction affecting interstate commerce that is subject to both the federal Electronic Signatures in Global and National Commerce Act ("Act"), and that You and Bloom both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with You by electronic means
By signing up for an account on Bloom’s website, you expressly acknowledge and agree to be bound by the terms and conditions of the Agreement.