Bloom’d Terms of Service
Last Changes to Terms of Service: September 2019
This is a legal agreement between you (“you” or “user”) and Bloom’d that states the material terms and conditions that govern your use of the App. This agreement, together with all updates, supplements, additional terms, and all of Bloom’d’s rules and policies collectively constitute this “Agreement” between you and Bloom’d. BY ACCESSING THE APP, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE AND CONDITIONS OF USE STATED HEREIN, PLEASE DO NOT USE THIS APP AND DELETE THE APP FROM YOUR DEVICE.
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 36). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 36) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE APP OR THE SERVICES OFFERED THROUGH THE APP.
- Eligibility. The App and the Bloom’d Platform may only be used by individuals who can form legally binding contracts under applicable law. The App and the Bloom’d Platform are not available to children (persons under the age of 18) or users who have had their user account temporarily or permanently deactivated. By becoming a user, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your user account, and you agree that you are the sole authorized user of your account.
- Bloom’d Services. The “Bloom’d Platform” or “Platform” is a web-based communications platform which enables the connection between clients and beauty professionals. “Clients” are individuals seeking to obtain certain services offered in the App from beauty professionals and are, therefore, clients of Beauty Professionals, and “Beauty Professionals” are individuals and/or businesses seeking to perform services for Clients and who have entered into an agreement with Bloom’d to offer such services on the Bloom’d Service. If you agree on the terms of a service with a Beauty Professional, you and such other Beauty Professional form a Service Agreement directly between the two of you as set forth in more detail in Section 4 below. BEAUTY PROFESSIONALS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF BLOOM’D. BLOOM’D DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. USERS HEREBY ACKNOWLEDGE THAT BLOOM’D DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A BEAUTY PROFESSIONAL’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE SERVICES IN ANY MANNER. The Bloom’d Platform only enables connections between Users and Beauty Professionals for the fulfillment of services. Bloom’d is not responsible for the performance of Beauty Professionals, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of the services provided by such Beauty Professionals, the Beauty Professionals, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Bloom’d makes no representations about the suitability, reliability, timeliness, or accuracy of the services requested and services provided by Beauty Professionals identified through the Bloom’d Platform whether in public, private, or offline interactions.
- Licensed Professionals. Bloom’d does not oversee, monitor or supervise the posting, scoping or performance of services by Beauty Professionals and whether such Beauty Professionals are licensed to perform such services. Accordingly, Clients must determine for themselves whether a Beauty Professional is qualified to perform the specific service offered. Clients may wish to consult their state or local requirements to determine whether certain services are required to be performed by a licensed professional.
- Contract between Clients and Beauty Professionals. You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a service with a Beauty Professional. The terms of the Service Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the Bloom’d Platform, and any other contractual terms accepted by both the Beauty Professional and you to the extent such terms do not conflict with the terms in this Agreement and do not expand Bloom’d’s obligations or restrict Bloom’d’s rights under this Agreement. You agree that Bloom’d is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Bloom’d and the Beauty Professional. The Beauty Professional is obligated to personally perform the services unless approved in advance by the Client. Before any services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”) engaged by the Beauty Professional, the Beauty Professional must require any such individuals to become registered Beauty Professionals on the Bloom’d Platform pursuant to Bloom’d policies. The Client shall pay the Beauty Professional for completed services as defined in Section 6 below. Client will pay the Beauty Professional at the rates posted on the Bloom’d Platform. Such rates are incorporated into the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a service under the Service Agreement. Both parties agree to notify Bloom’d of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Bloom’d representatives for at least thirty (30) days before initiating any proceeding between the parties.
- Service Descriptions. Details of the products and services available are set out on the App. All prices are displayed inclusive of all taxes. All features, content, specifications, products and prices of products and services described or depicted on this App are subject to change at any time without notice. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.
- Billing and Payment.
- Beauty Professional Rate: You are entitled to a Pro rate for the Services you perform for Clients, as provided in the Agreement The “Pro rate” for a completed appointment consists of a base fare The applicable base fare amounts are shown in every appointment and the “Income” section in the Bloom’d app account. The Income amounts displayed in your account are personal to you. Income amounts may vary by including but not limited to by factors such as the market where you provide Services, the date you applied or became approved as a Pro. In situations where a Client cancels your ride in violation of Bloom’d’s cancellation policy, we may charge the Client a cancellation fee on your behalf if within the 24 hours of the appointment. In those cases, you will earn the amount for the service selected. Your Income dashboard may not be set or available to you until you are an approved Pro, and you agree Bloom’d makes no representation or warranties concerning the Income amounts. Your Income amounts are subject to change in Bloom’d’s discretion and any changes shall be published on the Income dashboard. By continuing to use the Bloom’d Platform, you are deemed to accept these changes.
- Additional Payments to you: In addition to the Service Rate, you will receive the following payments, if applicable: (i) any tips provided by a Client to you, (ii)bonuses or incentives you earn based on your provision of Services.
- Bloom’d is Not a Party. Bloom’d is not be a party to any Service Agreements or any other services contracted for through the Bloom’d Platform. Payment for services through the Bloom’d Platform is made directly from the Client to the Beauty Professional and not by Bloom’d. If a Client fails to pay a Beauty Professional for services provided through the Bloom’d Platform, Bloom’d may, in its sole discretion, pay the Beauty Professional for such services but Bloom’d is not obligated to do so.
- Payment Obligations. Users of the Bloom’d Platform will be required to provide their credit card and/or bank account details to Bloom’d and the Payment Service Provider retained by Bloom’d (the “PSP”). Beauty Professionals are responsible for invoicing their Clients within 24 hours of the services being performed. Clients will be responsible for paying the invoice for each service (the “Invoice”), which will include (i) the pricing terms of the service agreed with and provided by a Beauty Professional (“Service Payment”), (ii) any out of pocket expenses agreed with and submitted by a Beauty Professional in connection with the service, (iii) the service charge Bloom’d assesses for the Bloom’d Platform, and (iv) cancellation fees, if applicable. When you provide bank card information, account numbers or other information necessary to facilitate payment to us or our vendors, you represent to us that you are the authorized user of the bank card that is used to pay for the products and services. In the event legal action is necessary to collect on balances due, you agree to reimburse Bloom’d and its vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of the App. You understand that we will hold and store such bank card or payment information to facilitate payment and deposit, damage reimbursement, and other liability purposes.
- Payment Processing. To help prevent fraud and safeguard User information from the risk of unauthorized access, Bloom’d and/or the PSP may validate an account before activation. As part of the account validation, a very temporary charge is placed on account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 US to $5000.00 US depending on the estimated value of the service and reimbursements. When Bloom’d receives confirmation through the Bloom’d Platform or via email that a service has been completed, Client automatically authorizes Bloom’d to provide Client’s payment details to the PSP for processing of Service Payment, out of pocket expenses owed to Beauty Professional, and the service charge owed to Bloom’d for the use of the Bloom’d Platform. You may be charged a cancellation fee through the PSP if you book a service, but cancel it before it is completed, as set forth in the service pricing terms. Bloom’d reserves the right, in its sole discretion (but not the obligation), upon request from Client or Beauty Professional or upon notice of any potential fraud, unauthorized charges or other misuse of the Bloom’d Platform, to (i) place on hold any Service Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so. Service Payment and fees must be paid through the PSP as indicated on the Bloom’d Platform. Users of the Bloom’d Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the services provided under the Agreement (other than taxes on Bloom’d’s income). Payment processing services are provided by Stripe and subject to the Stripe Connected Account Agreement (available at https://stripe.com/us/connect-account/legal), which includes the Stripe Services Agreement (available at https://stripe.com/us/legal) (collectively, the “Stripe Terms”). By using the Bloom’d Platform to receive payment proceeds, you agree to be bound by the Stripe Terms, which may be modified from time to time. As a condition of Bloom’d enabling payment processing services through Stripe, you authorize Bloom’d to obtain all necessary access and perform all necessary activity on your Stripe Connected Account to facilitate your provision of Services as contemplated by the Agreement and your relationship with Bloom’d . You further agree to provide accurate and complete information about you and your business, and authorize Bloom’d to share it and transaction information with Stripe for the purposes of facilitating of the payment processing services provided by Stripe. Bloom’d reserves the right to switch payment processing vendors or use alternate or backup vendors in its discretion.
- Membership Fee. Bloom’d may offer additional services and/or enhanced features and functionality for those Beauty Professionals who become members of the Bloom’d Platform. The fees and benefits for such membership are provided in more detail on the Bloom’d Platform. Such membership is not required to use the Bloom’d Platform and each Beauty Professional may enter into such membership as such Beauty Professional determines in his or her discretion.
- Promotions & Coupons. Bloom’d may, at its discretion, offer promotional or other Coupons to Customers, however such discounts shall not impact the Pro rate or any other payments owed to you.
- User Vetting and User Representation and Warranties
- User Vetting. In Bloom’d’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the Bloom’d Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Bloom’d to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act. Although Bloom’d may perform background checks of Users, as outlined above, Bloom’d is not required to do so and cannot confirm that each User is who they claim to be and therefore, Bloom’d cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Bloom’d Platform. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER BLOOM’D NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE BLOOM’D PLATFORM AND YOU HEREBY RELEASE BLOOM’D AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. BLOOM’D AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE BLOOM’D PLATFORM.
- User Representations and Warranties. You represent and warrant that you will fulfill the commitments you make to Beauty Professionals including paying/receiving payment through the Bloom’d Platform, communicating clearly and promptly through the chat thread and/or respond to invitations promptly, being present and/or available at the time you agree upon with your Beauty Professional and only using the third party payment processing system specified or approved by us to make or receive payment for services provided through the Bloom’d Platform. You also represent and warrant that you will act professionally and responsibly in your interactions with Beauty Professionals and other Users. You hereby warrant and represent that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Beauty Professionals and that you will not record (whether video or audio or otherwise) any service or any interaction by or with any Beauty Professional in connection with the Bloom’d Platform without the prior written consent of the Beauty Professional.
- Account Registration and Security. You understand that you will need to create an account to have access to all of the parts of the App. You will: (a) provide true, accurate, current and complete information about yourself as prompted by the App’s registration or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Bloom’d has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bloom’d has the right to suspend or terminate your account and refuse any and all current or future use of the App (or any portion thereof). You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to logon to the App using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the App. We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your account so you should take reasonable steps to protect this information.
- Communications Via Text. By providing your mobile phone number and using the Bloom’d Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the Bloom’d Platform, (b) facilitate the carrying out of services through the Bloom’d Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming services, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming services and/or in follow up to any push notifications delivered through our mobile application. Bloom’d will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings, texting “STOP” in response to any texts, or by emailing email@example.com and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
- Access License. Bloom’d grants you a limited, revocable, non-exclusive, non-transferable license to access and make use of the App or its content. This license does not permit any resale of the services offered through the App; any collection and use of any product listings, descriptions, or prices; any derivative use of the App or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly permitted herein, the App and/or any portion of the App may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without Bloom’d’s express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you.
- Copyright and Ownership. All of the content featured or displayed on the App, including without limitation text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), is owned by Bloom’d, its licensors, vendors, agents and/or its Content providers. All elements of the App, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The App may only be used for the intended purpose for which such App is being made available. Except as permitted by copyright law, you may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the App. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the App. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the App. The App, its Content and all related rights shall remain the exclusive property of Bloom’d or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the App.
- Trademarks/No Endorsement. All trademarks, service marks and trade names of Bloom’d used herein (including but not limited to: Bloom’d name, Bloom’d corporate logo, the App name, the App design, and any logos) (collectively “Marks”) are trademarks or registered trademarks of Bloom’d or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Bloom’d trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the App, without Bloom’d’s prior written consent. You shall not use Bloom’d’s name or any language, pictures or symbols which could, in Bloom’d’s judgment, imply Bloom’d’s endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
- Solicited Submission Policy. Where Bloom’d has specifically invited or requested submissions or comments, Bloom’d encourages you to submit content (e.g. reviews, participation in communities, tips, etc.) to Bloom’d that they have created for consideration in connection with the Site (“User Submissions”). User Submissions remains the intellectual property of the individual user. By posting content on our website or in the App, you expressly grant Bloom’d a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and your name, voice, and/or likeness as contained in your User Submission, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity throughout the universe. Any such User Submissions are deemed non-confidential and Bloom’d shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.
- Inappropriate Material. You are prohibited from using the App to post or send any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or “spam” on or through the App is expressly prohibited by this Agreement. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in these Terms of Service, we may take any action we deem necessary to cure or prevent the violation, including without limitation, banning you from using the App and/or the immediate removal of the related materials from the App at any time without notice. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
- Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the App for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the App; or (iii) bypass any measures we may use to prevent or restrict access to the App.
- Reviews and Feedback. The Bloom’d Platform hosts User Submissions relating to reviews and ratings of specific Beauty Professionals (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Bloom’d, has not been verified or approved by Bloom’d and each user of the Bloom’d Platform should undertake his or her own research to be satisfied that a specific Beauty Professional is the right person for a service. You agree that Bloom’d is not liable for any Feedback or other User Submission. Bloom’d encourages each User to give objective, constructive and honest Feedback about the other Beauty Professionals with whom they have transacted. Bloom’d does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Bloom’d do so. In no event shall you represent or suggest, directly or indirectly, Bloom’d’s endorsement of Feedback. Through your use of the App and Services, you may be exposed to Content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using our App and Services, you assume all associated risks.
- Promotions and Referrals. Bloom’d, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Bloom’d. Bloom’d reserves the right to withhold or deduct credits or benefits obtained through a promotion that Bloom’d determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. All promotions and referral programs are subject to additional terms and conditions which will be posted with the promotion or referral program,
- Contests, Sweepstakes and Games. From time to time Bloom’d may offer contests, sweepstakes and games. Additional terms and conditions will apply to your participation in each contest, sweepstakes or game and will be posted with the contest, sweepstakes or game.
- Advertising Rights. Bloom’d reserves the right to sell, license and/or display any advertising, attribution, links, promotional and/or distribution rights in connection with the App, and Bloom’d and its licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Nothing in these terms obligates or may be deemed to obligate Bloom’d to sell, license or offer to sell or license any advertising, promotion or distribution rights.
- Third Party Links. From time to time, the App may contain links to websites that are not owned, operated or controlled by Bloom’d or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the App. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from this App, you do so entirely at your own risk.
- Transactional Partners. In some cases we partner with another Bloom’d to co-promote their services within our App. In these cases, you are transacting directly with the other party. On those pages or locations, the transactional partners’ brand is clearly visible and their terms of service are posted. When using these partner pages, you are bound by partner terms of service in addition to remaining bound by Bloom’d Terms of Service. When there is a conflict between these Terms of Service and the partner’s terms of service, their terms of service will prevail.
- Accuracy of Information. We attempt to ensure that information on the App is complete, accurate and current. Despite our efforts, the information on the App may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currency of any information on the App. For example, products included on the App may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the App. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
- Termination (Client). You or we may suspend or terminate your account or your use of this App at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We may also block your access to our App in the event that (a) you breach these Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
- Termination (Beauty Professional) You or we may suspend or terminate your account or your use of this App at any time, for any reason or for no reason. We may also block your access to our App in the event that (a) you breach these Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
- Representations and Warranties. You represent that You are fully able and competent to satisfy the terms, conditions, and obligations herein, and Your use of the App is and will be in compliance with all applicable laws. In addition, you represent and warrant that your User Submissions and all elements thereof are (a) owned or controlled solely and exclusively by you, you have prior written permission from the rightful owner of the content included in your User Submissions, or you are otherwise legally entitled to grant Bloom’d all of the rights granted herein; and (b) Bloom’d’s use of your User Submissions as described or contemplated herein do not and will not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity, violate any law, regulation or right of any kind whatsoever, or otherwise give rise to any actionable claim or liability, including without limitation rights of publicity and privacy, and defamation.
- DISCLAIMERS. Your use of the App AND THE BLOOM’D PLATFORM is at your risk. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE APP AND THE BLOOM’D PLATFORM ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER BLOOM’D, NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THE APP OR THE BLOOM’D PLATFORM. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE APP OR THE BLOOM’D PLATFORM MAY BE OUT OF DATE, AND NEITHER BLOOM’D, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES.
BLOOM’D 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 AND USE OF THE BLOOM’D PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. BLOOM’D DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE BLOOM’D PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND BLOOM’D WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN.
WITHOUT LIMITING THE FOREGOING, NEITHER BLOOM’D NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE BLOOM’D PLATFORM WILL BE UNINTERRUPTED OR THAT THE BLOOM’D PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BLOOM’D PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE BLOOM’D PLATFORM. NEITHER BLOOM’D NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE BLOOM’D PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BLOOM’D OR THROUGH THE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
NEITHER BLOOM’D NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR BEAUTY PROFESSIONAL. IN ADDITION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE SERVICE AND SELECTING THEIR BEAUTY PROFESSIONAL AND BLOOM’D DOES NOT WARRANT ANY SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR BEAUTY PROFESSIONAL. BLOOM’D DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY BEAUTY PROFESSIONAL’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
- LIMITATIONS OF LIABILITY. BLOOM’D DOES NOT ASSUME ANY RESPONSIBILITY, OR WILL BE LIABLE, FOR ANY DAMAGES TO, OR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THIS APP, OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THIS APP. IN NO EVENT WILL BLOOM’D, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE APP, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE APP, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THE APP OR ANY MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE APP, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE APP. IN NO EVENT SHALL BLOOM’D’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) TWENTY FIVE DOLLARS (US $25.00) OR (B) THE VALUE OF THE SERVICES PURCHASED OR SUBSCRIBED BY YOU ON THE APP.
- Indemnity. You agree to defend, indemnify and hold Bloom’d and any affiliated entity or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the App or your placement or transmission of any User Submission or other content, message or information on this App by you or your authorized users; (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, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any User Submission that you provide to Bloom’d, including without limitation any claim or damages arising from a defamation or invasion of privacy claim; or (vi) any other party’s access and use of the App with your unique username, password or other appropriate security code.
- Release. The Bloom’d Platform is only a venue for connecting Users and Beauty Professionals. Because Bloom’d is not involved in the actual contact between Users and Beauty Professionals or in the completion of the services, in the event that you have a dispute with one or more Beauty Professionals, you release Bloom’d and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. BLOOM’D EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS BLOOM’D PLATFORM. TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- Worker Classification. The Bloom’d Platform is not an employment service and Bloom’d is not an employer of any Beauty Professional. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Bloom’d. You acknowledge that Bloom’d does not, in any way, supervise, direct, control or monitor a Beauty Professional’s work or services performed in any manner. Bloom’d does not set a Beauty Professional’s work hours or location of work. Bloom’d will not provide any equipment, labor or materials needed for a particular service.
- Force Majeure. Neither Bloom’d nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
- General. Any claim relating to, and the use of, this App and the materials contained herein is governed by the laws of the State of Maryland. You consent to the exclusive jurisdiction of the state and federal courts located in Montgomery County, Maryland. A printed version of these Terms of Service will be admissible in judicial and administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
These Terms of Service set forth the entire understanding and agreement between us with respect to the subject matter hereof. We do not guarantee continuous, uninterrupted or secure access to our App, and operation of the App may be interfered with by numerous factors outside of our control. If any provision of these Terms of Service is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms of Service and all incorporated agreements may be automatically assigned by Bloom’d in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. All sections which by their context ought to survive this agreement shall survive any termination or expiration of this Agreement.
- DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE. In operating the App, we may act as a “services provider” (as defined by DMCA) and offer services as online provider of materials and links to third party web sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the App. Bloom’d has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the App. Bloom’d has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of Bloom’d or of a third party, or that has otherwise violated any intellectual property laws or regulations, or any of the terms and conditions of this Agreement. If you believe any material available via the App infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is email@example.com.
Please provide the following notice:
- Identify the copyrighted work or other intellectual property that you claim has been infringed;
- Identify the material on the App that you claim is infringing, with enough detail so that we may locate it on the App;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
- Your address, telephone number, and email address; and
- Your physical or electronic signature.
We may give notice to our users of any infringement notice by means of a general notice on any of our Apps, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
- Dispute Resolution – Arbitration
- Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Bloom’d (each a “Claim” and collectively “Claims”), you and Bloom’d agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Bloom’d. Bloom’d’s address for such notices is _7901 Queenair Drive STE 109 Gaithersburg, MD 20879, Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Bloom’d may initiate arbitration while engaging in the informal negotiations.
- Binding Arbitration. YOU AND BLOOM’D MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN. This agreement to arbitrate, contained in this Section 36, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Bloom’d. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the Bloom’d Platform, services, your relationship with Bloom’d, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Bloom’d, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Bloom’d and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below. YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND BLOOM’D ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
- Agreement Prohibiting Class Actions and Non-Individualized Relief. You and Bloom’d agree that any arbitration will be limited to the Claim between Bloom’d and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND BLOOM’D ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Bloom’d otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Bloom’d, which are addressed separately in Section 20(d) below. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
- Representative PAGA Waiver. Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Bloom’d agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Bloom’d agree that any such Claim will be resolved in arbitration on an individual basis only (that is, to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA Waiver or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
- Rules and Logistics Governing Arbitration. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. As part of the arbitration, both you and Bloom’d will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based. The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Beauty Professionals or Clients, but is bound by rulings in prior arbitrations involving the same Beauty Professional or Client to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
If Bloom’d initiates arbitration under this Arbitration Agreement, Bloom’d will pay all AAA filing and arbitration fees. If a Client, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 10,000, Bloom’d will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Bloom’d agree otherwise, any arbitration hearings between Bloom’d and a Client will take place in the county in which you received services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
- Exceptions to Arbitration. The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
- Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
- Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
- A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 20(d) is deemed unenforceable by a court of competent jurisdiction; and
- Claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
- Severability. In addition to the severability provisions in Section 20(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
- Right to Opt Out of Arbitration Agreement. You may opt out of the Arbitration Agreement by notifying Bloom’d in writing within thirty (30) days of the date you first registered for the Bloom’d Platform or thirty (30) days from the date this Agreement was last updated. To opt out, you must send a written notification to Bloom’d at _7901 Queenair Drive STE. 109 _Gaithersburg, MD 20874 Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
- Apple Disclaimer. The following paragraph applies to any version of the Services that you acquire from the Apple App Store. This Agreement is entered into between You and Bloom’d. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the App. Bloom’d, not Apple, is solely responsible for the App and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon Your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S Government list of prohibited or restricted parties. This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple, for purposes of which, You are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
- Additional Assistance. If you do not understand any of the foregoing Terms of Service or if you have any questions or comments, we invite you to contact our Customer Service Department by email at firstname.lastname@example.org.
- Copyright Notice. All design, graphics, text selections, arrangements, and all software are Copyright © 2018, Bloom’d Applications LLC and its related companies or its licensors. ALL RIGHTS RESERVED.