Terms of Service
Effective: January 3, 2017
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
THE USE OF THE SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE OR ADVICE.
1. Use of Service
The Service allows pregnant women to track their contractions and share this information.
This is a contract between you and bloomlife. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with bloomlife, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by bloomlife.
b. Consult With Your Doctor.
- The Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the Service, engaging in a pregnancy-related program or service. If you experience a medical emergency, stop using the Service and consult with a medical professional. We are not responsible for any health problems that may result from services, consultations, products, or events you learn about through the Service. If you engage in any pregnancy-related program you receive or learn about through the Service you agree that you do so at your own risk and are voluntarily participating in these activities.
- Prolonged contact with wearable devices may contribute to skin irritation, skin allergies or skin damages in some users. To reduce irritation, follow three simple wear and care tips: (1) Keep it clean; (2) keep it dry; and (3) give your stomach a rest by removing the patch for 24 hours after extended wear. If you notice any skin irritation, remove your device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor.
- The Service is not a substitute for your own intuition or the advice of a trained medical professional. You should always consult with your doctor while using the Service, trust your feelings about your contractions, and consult with a trained medical professional if you have any questions or concerns about your health or pregnancy.
c. Service License.
Subject to the terms and conditions of this Agreement and payment of applicable fees stated herein, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. bloomlife reserves all rights not expressly granted herein in the Service and bloomlife Content (as defined below). bloomlife may terminate this license at any time for any reason or no reason.
Your bloomlife account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify bloomlife immediately of any breach of security or unauthorized use of your account. bloomlife will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing bloomlife your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out by clicking the opt out link within the message or by sending an email to email@example.com. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
e. Necessary Equipment.
Full use of the Service is dependent upon your use of the disposable bloomlife patches, the re-usable bloomlife Sensor, a computer with adequate software or a supported mobile device, and Internet access. The maintenance and security of this equipment may influence the performance of the Service and it is your responsibility to ensure the equipment’s functionality.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to bloomlife servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that bloomlife grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from bloomlife for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other bloomlife Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. bloomlife shall have no liability for your interactions with other Users, or for any User’s action or inaction.
The information and materials provided in the Service must not be used in place of a visit, call, consultation or advice of your physician or other health care provider. bloomlife is not a diagnostic tool and does not promote or recommend any particular form of medical treatment. Content found in the Service is for informational purposes only and is not intended to replace the relationship between you and your physician or other health care provider. You should always consult a physician if you have any health care-related questions. You should never disregard medical advice or delay in seeking it because of something you have read or inferred in or through the Service. If you think you may have a medical emergency, call your physician or the applicable emergency listing in your country immediately. If you feel pain or discomfort, immediately stop the activity causing such discomfort or pain.
We are not responsible for any health problems that may result from recommendations, activities, or other information or events you learn about through the Service. You agree that you use the Service at your own risk and are voluntarily engaging in the activities described in the Service.
2. User Content
Some areas of the Service allow Users to post or originate content on the Service. Any such materials a User submits, posts, displays, or otherwise originates on the Service is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours.
a. Content License.
- The User Content you create remains yours; however, by providing or sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. bloomlife has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
- By posting or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to bloomlife a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and bloomlife’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
b. Content Restrictions.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any school or other applicable policy, including those related to cheating or ethics. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
c. User Content Representations and Warranties.
In connection with your User Content, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and bloomlife’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- bloomlife may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
- bloomlife takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that bloom shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. Intellectual Property; Proprietary Rights
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, hardware, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “bloomlife Content”), and all Intellectual Property Rights related thereto, are the exclusive property of bloomlife and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any bloomlife Content. Use of bloomlife Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place bloomlife under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, bloomlife does not waive any rights to use similar or related ideas previously known to bloomlife, or developed by its employees, or obtained from sources other than you.
a. Mobile Software.
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. bloomlife does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. bloomlife hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one bloomlife account on one mobile device owned or leased solely by you, for your personal use.
You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software or the Sensor, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that bloomlife may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and bloomlife or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. bloomlife reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
b. Mobile Application Marketplace.
The following applies to any Mobile Software you acquire from the iTunes Store, the Android Market, or any other similar marketplace for mobile applications (“Sourced Mobile Software”): You acknowledge and agree that this Agreement is solely between you and bloomlife, not the proprietor of such marketplace (each a “Proprietor”), and that Proprietor has no responsibility for the Sourced Mobile Software or content thereof. Your use of the Sourced Mobile Software must comply with the applicable terms of service for the marketplace from which you downloaded the Sourced Mobile Software. You acknowledge that Proprietor has no obligation whatsoever to furnish any maintenance and support services with respect to the Sourced Mobile Software. In the event of any failure of the Sourced Mobile Software to conform to any applicable warranty, you may notify Proprietor, and Proprietor will refund the purchase price for the Sourced Mobile Software to you; to the maximum extent permitted by applicable law, Proprietor will have no other warranty obligation whatsoever with respect to the Sourced Mobile Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to bloomlife as provider of the software. You acknowledge that Proprietor is not responsible for addressing any claims of you or any third party relating to the Sourced Mobile Software or your possession and/or use of the Sourced Mobile Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Sourced Mobile Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to bloomlife as provider of the software. You acknowledge that, in the event of any third-party claim that the Sourced Mobile Software or your possession and use of that Sourced Mobile Software infringes that third party’s intellectual property rights, bloomlife, not Proprietor, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and bloomlife acknowledge and agree that Proprietor, and Proprietor’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Sourced Mobile Software, and that, upon your acceptance of the terms and conditions of this Agreement, Proprietor will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Sourced Mobile Software against you as a third-party beneficiary thereof.
5. Payment Terms
You agree to pay bloomlife all fees and charges, including any applicable taxes, as set forth in an applicable order form for the Service (“Fees”), If you provide us with valid credit card information, you authorize bloomlife to charge such credit card for the initial Term and any renewal Term(s). Such charges shall be made in advance, in accordance with the billing frequency stated in the applicable order form.
bloomlife may charge you a deposit in an amount set forth in an applicable order form that is billable at the time you place your order (the “Deposit”). The Deposit shall be held by bloomlife and returned or credited to you, without interest, upon termination of this Agreement and our receipt of your returned, undamaged Sensor.
c. Loss and damage.
In the event that the Sensor or any components of the Service bloomlife provided to you is lost or damaged, bloomlife shall, without limiting its remedies otherwise available, have the right to charge you for, or apply the Deposit to, the damages suffered by bloomlife as a result of having to repair or replace the Sensor or any components of the Service.
c. No Refunds.
Notwithstanding any contrary terms in this Agreement, the weekly Fees paid for the Service are non-cancelable and non-refundable.
6. Privacy and Security
bloomlife cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
8. Term and Termination
Your license to access and use the Service granted under this Agreement remains in effect until terminated by you or us. Your subscription to the Service will begin upon delivery of the bloomlife Sensor to your doorstep and continue for an additional 30 days, for a total of 1 month (“Term”). Your subscription shall automatically renew for additional successive Terms equal to the period of your initial Term, until you cancel your subscription. You may cancel your subscription at any time by returning all components of the Service in your possession or control to us at the address set forth in 14(g) herein. Cancellation of the Service will become effective upon i) our receipt of the Service components and ii) conclusion of your then-current subscription Term. Without prejudice to any other terms set forth in this Agreement, the license will automatically terminate without notice from us if you in any way breach any provision of this Agreement. Upon termination in accordance with this Agreement for any reason, you must cease all use of the Service and promptly return all components of the Service. Your termination of the license for any reason shall not release you from any liabilities or obligations set forth in this Agreement which (a) has expressly been stated as surviving any such termination or expiration, or (b) remains to be performed, or by their nature would be intended to be applicable following any such termination or expiration. For avoidance of doubt, Sections 2(c), 3, 10, 11, 12, 13, and 14 shall survive termination of this Agreement.
9. Third-party Links
You agree to defend, indemnify and hold harmless bloomlife and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
11. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM bloomlife OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, bloomlife, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE bloomlife CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
bloomlife DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND bloomlife WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL bloomlife, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL bloomlife BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, bloomlife ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL bloomlife, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO bloomlife HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF bloomlife HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. bloomlife makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
13. Governing Law / Arbitration / Jury Waiver
a. Governing Law.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WISHEXPRESS. For any dispute with bloomlife, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that bloomlife has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and bloomlife agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing bloomlife from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
c. Class Action / Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND bloomlife ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by bloomlife without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
b. Notification Procedures and Changes to the Agreement.
c. California Residents.
California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
d. Entire Agreement / Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with bloomlife in connection with the Service, shall constitute the entire agreement between you and bloomlife concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
e. No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and bloomlife’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
You represent and warrant that you will not use or otherwise export or re-export the Service, including but not limited to the Mobile Software to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Service and Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and Service.
The Service is operated and provided by Bloomlife, Inc. If you have any questions about this Agreement, please contact us at firstname.lastname@example.org or by mailing us at Bloomlife, Inc.; 1931 McAllister St #D; San Francisco CA 94115.