Terms of Service
TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. These Terms and Conditions (“Terms”) govern your use of the BloomTrak LLC (“BloomTrak”) platform (the “BloomTrak Platform”) as further defined herein. The BloomTrak Platform is that certain online BloomTrak Platform developed and owned by BloomTrak as currently provided or which will be provided to the User through any means whatsoever.
These Terms sets out the basis on which BLOOMTRAK makes the BloomTrak Platform available to you (“User” or ”You”) and on which You may use them. By installing or using the BloomTrak Platform, You agree to accept and to be bound by these Terms. If You do not agree with this, do not install or use the BloomTrak Platform.
BLOOMTRAK reserves the right to change, modify, add or delete articles in these Terms at any time, in accordance with the procedures described below in Section 8.
1. GRANT OF LICENSE.
1.1 BLOOMTRAK (or its licensors) grants You a non-exclusive, non-transferable, non-sublicensed, non-commercial and personal license to install and/or use the BloomTrak Platform (in whole or in part) (the “License”), for such time until either You or BLOOMTRAK terminates these Terms. You must in no event use, nor allow others to use, the BloomTrak Platform or this License for commercial purposes without obtaining a license to do so from BLOOMTRAK. Updates, upgrades, patches and modifications may be necessary in order to be able to continue to use the BloomTrak Platform on certain hardware. THIS BLOOMTRAK PLATFORM IS LICENSED TO YOU, NOT SOLD.
As applicable, certain parts of the BloomTrak Platform may be using third party features, some of which are managed by third-party providers for which additional terms and/or costs may apply. You must comply with such additional terms.
1.3 While using the BloomTrak Platform, You agree to comply will all applicable laws, rules and regulations. In all cases, You may only use the BloomTrak Platform according to anticipated use of the BloomTrak Platform.
For example purposes, and without limiting BLOOMTRAK’s rights to take action against You, You may not:
a. create, use, share and/or publish by any means in relation to the BloomTrak Platform any material which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act (in particular, piracy, cracking or circulation of counterfeit software);
b. modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the BloomTrak Platform, or its accessibility to other users, or the functioning of the partner networks of the BloomTrak Platform, or attempt to do any of the above;
c. transmit or propagate any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the BloomTrak Platform, and/or organise, participate in or be involved in any way in an attack on BLOOMTRAK’s servers and/or the BloomTrak Platform and/or those of its service providers and partners;
d. create, supply or use alternative methods of using the BloomTrak Platform;
e. spamming chat, whether for personal or commercial purposes, by disrupting the flow of conversation with repeated postings of a similar nature;
f. transmitting or communicating any material or content which, in the sole and exclusive discretion of BLOOMTRAK, is believed or deemed offensive, including, but not limited to, language that is harmful, threatening, unlawful, abusive, harassing, defamatory, disparaging, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
g. harassing or threatening any other users in the BloomTrak Platform;
h. make inappropriate use of the help service or the claim buttons or send untruthful reports to members of BLOOMTRAK’s personnel;
i. falsely claim to be an employee or representative of BLOOMTRAK or its partners and/or agents;
j. falsely claim an endorsement in connection with the BloomTrak Platform or with BLOOMTRAK.
All title, ownership rights and intellectual property rights in and to the BloomTrak Platform (including, without limitation, all text, graphics, music or sounds, all messages or items of information, fictional characters, names, themes, objects, scenery, costumes, effects, dialogues, slogans, places, characters, diagrams, concepts, choreographies, videos, audio-visual effects, domain names and any other elements which are part of the BloomTrak Platform, individually or in combination) and any and all copies thereof are owned by BLOOMTRAK or its licensors. The BloomTrak Platform is protected by national and international laws, copyright treaties and conventions and other laws. This BloomTrak Platform may contain certain licensed materials and, in that event, BLOOMTRAK’s licensors may protect their rights in the event of any violation of this Agreement. Any reproduction or representation of these licensed materials in any way and for any reason is prohibited without BLOOMTRAK’s prior permission and, if applicable, BLOOMTRAK’s licensors and representatives. Except as expressly set forth in these Terms, all rights not granted hereunder to You are expressly reserved by BLOOMTRAK.
This License confers no title or ownership in the BloomTrak Platform and should not be construed as a sale of any rights in the BloomTrak Platform.
3. ACCESS TO THE BLOOMTRAK PLATFORM
BLOOMTRAK or its licensors may collect and store data about You in relation to Your use of the BloomTrak Platform or Your connection information. Certain data is recorded, archived, analyzed and used to create user statistics. BloomTrak shall be entitled to use all information collected by you of whatever nature in accordance with federal and state law. By agreeing to these Terms, You hereby grant to BloomTrak the right to collect, store, and use data about You.
4. CONSENT TO MONITOR.
When You are using the BloomTrak Platform, the BloomTrak Platform may monitor Your hardware random access memory (RAM) for unauthorized third party programs prohibited by Section 1 that interact with the BloomTrak Platform. In the event that the BloomTrak Platform detects such an unauthorized third party program, information may be communicated back to BLOOMTRAK, including the name of your account, your internet protocol (IP) address, details about the unauthorized third party program detected, and the time and date that the unauthorized third party program was detected, along with the hardware specifications and performance characteristics of Your hardware, with or without additional notice to You. If the BloomTrak Platform detects the use of an unauthorized third party program, this License and Your access to the BloomTrak Platform may be terminated with or without additional notice to You.
5. WARRANTY DISCLAIMER, LIMITATION OF LIABILITY.
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE BLOOMTRAK PLATFORM IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE BLOOMTRAK PLATFORM IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE“ BASIS. BLOOMTRAK BLOOMTRAK’S LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS DO NOT MAKE AND HEREBY DISCLAIM ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY OR OTHER TERMS INCLUDING AS TO: (A) ITS CONFORMITY, ACCURACY, CURRENTNESS, COMPLETENESS, RELIABILITY OR SECURITY (B) ITS SUITABILITY FOR A PARTICULAR USE; (C) IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT; (D) ITS MARKET VALUE; OR (E) YOUR SATISFACTION. BLOOMTRAK DOES NOT WARRANT THAT THE BLOOMTRAK PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE BLOOMTRAK PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE BLOOMTRAK PLATFORM TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE BLOOMTRAK PLATFORM.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL BLOOMTRAK, BLOOMTRAK’S LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THE BLOOMTRAK PLATFORM OR ANY RELATED THIRD-PARTY SERVICE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.
NOTWITHSTANDING THE AFOREMENTIONED LIMITATIONS OF LIABILITY, YOUR SOLE REMEDY IN THE EVENT OF A DISPUTE WITH BLOOMTRAK OR ITS LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS IS TO CEASE TO USE THE BLOOMTRAK PLATFORM; AND IF APPLICABLE, SEEK DAMAGES FOR YOUR LOSSES. FOR ANY BLOOMTRAK PLATFORM PURCHASED FOR USE ON A COMPATIBLE MOBILE TERMINAL THAT WOULD NOT MEET THE APPLICABLE LEGAL WARRANTIES, BLOOMTRAK’S LIABILITY IS LIMITED TO THE REFUND (DIRECTLY OR INDIRECTLY THROUGH ITS CHANNEL PARTNERS OR ASSOCIATED SERVICE PROVIDERS) OF THE PURCHASE PRICE OF THE BLOOMTRAK PLATFORM. IN NO EVENT BLOOMTRAK, ITS AFFILIATES, LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID FOR THE BLOOMTRAK PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
NOTHING IN THIS SECTION 5 SHALL AFFECT BLOOMTRAK’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM BLOOMTRAK’S NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION, NOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
FOR PURPOSES OF THIS SECTION 5, BLOOMTRAK’S LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THESE TERMS AGAINST YOU.
You are solely responsible for any damage caused to BLOOMTRAK, its licensors, channel partners and associated service providers and subcontractors, other users of the BloomTrak Platform or any other individual or legal entity as a result of Your violation of these Terms.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED BLOOMTRAK AND ITS AFFILIATES, THEIR LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS AND THEIR SUBCONTRACTORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES AND ALL COSTS (INCLUDING LAWYERS’ FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO YOUR FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THESE TERMS OR (B) YOUR USE OR MISUSE OF THE BLOOMTRAK PLATFORM. BLOOMTRAK reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which You agreed to indemnify BLOOMTRAK. The provisions of this Section 6 shall remain in force after termination of these Terms.
The TERM is effective from the earlier of the date You install or use the BloomTrak Platform, until terminated according to its terms. You and BLOOMTRAK (or its licensors) may terminate these Terms, at any time, for any reason. Termination by BLOOMTRAK will be effective upon (a) notice to You or (b) termination of Your BLOOMTRAK Account (if any) or (c) at the time of BLOOMTRAK’s decision to discontinue offering and/or supporting the BloomTrak Platform. These Terms will terminate automatically if You fail to comply with any of the terms and conditions of these Terms.
8. CHANGES TO THESE TERMS OR TO THE BLOOMTRAK PLATFORM.
BLOOMTRAK reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of these Terms for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to You. You are responsible for checking these Terms periodically for changes. Your continued use of the BloomTrak Platform following any revision to these Terms constitutes Your complete and irrevocable acceptance of any and all such changes. BLOOMTRAK may modify the BloomTrak Platform for any reason or without any specific reason, at any time and at its entire discretion, for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the BloomTrak Platform. You agree that the BloomTrak Platform may install or download the modifications automatically. You agree that BLOOMTRAK may stop to support previous versions of the BloomTrak Platform upon availability of an updated version. BLOOMTRAK’s channel partners and associated service providers shall have no obligation to furnish any maintenance or customer support with respect to the BloomTrak Platform.
9.1 Severance. If any court of competent jurisdiction or competent authority finds that any provision of these Terms is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Term shall not be affected. If any invalid, unenforceable or illegal provision of these Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect BLOOMTRAK’s initial intentions.
9.2 No Waiver. No failure or delay by BLOOMTRAK (or its licensors) to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by BLOOMTRAK or by the User.
9.3 Law, Jurisdiction and Dispute Resolution.
9.3.1 These Terms, and any disputes or claims arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any principles of conflicts of laws. These Terms shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of these Terms.
9.3.2 It is hereby agreed that any action at law or in equity arising under these Terms shall be finally adjudicated or determined exclusively in the courts of the Commonwealth of Virginia located in Charlottesville, Virginia, or the courts of the United States of America located in Charlottesville, Virginia, and the parties hereto hereby submit generally and unconditionally to the personal and exclusive jurisdiction and venue of these courts in respect to any such matter and consent to service of process by any means authorized by Virginia law.
9.3.2 The prevailing party in any action brought under these Terms shall be entitled to an award of its reasonable attorneys’ fees and costs.
THESE TERMS IS APPLICABLE ONLY TO THE EXTENT AUTHORIZED BY LAW.