BLOOMSPOT TERMS OF SERVICE & CERTIFICATE TERMS
July 1, 2013
Welcome to Bloomspot, a marketing service offered through Bloomspot Inc. (together with its affiliates, 'Bloomspot'). Bloomspot provides users with access to promotional offers by merchants ('Merchant') for a variety of goods and services (referred to in the Bloomspot program and these terms as 'Offers'). The promotion of each Offer works as a form of advertisement for the Merchant for which Bloomspot is compensated.
By using any of the Bloomspot services, which include but are not limited to, visiting or using the Bloomspot website, using the Bloomspot mobile app, enrolling to receive Offer e-mails or purchasing an Offer (collectively 'Service'), you accept these terms.
PLEASE READ THIS AGREEMENT CAREFULLY. SECTION 20 CONTAINS AN ARBITRATION AGREEMENT, WHICH STATES THAT ARBITRATION REPLACES THE RIGHT TO GO TO COURT BEFORE A JUDGE AND JURY. YOU WILL NOT BE ABLE TO BRING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT. YOU WILL NOT BE ABLE TO BRING ANY CLAIM IN ARBITRATION AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. YOU WILL NOT BE ABLE TO BE REPRESENTED AS PART OF ANY CLASS ACTION OR OTHER REPRESENTATIVE ACTION. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION MIGHT BE MORE LIMITED OR MIGHT NOT EXIST. EXCEPT AS PROVIDED IN SECTION 20 BELOW, THOSE RIGHTS ARE WAIVED.
1. Eligibility and Registration
You must be at least 18 years old (or the legal age of majority in your state, whichever is older) and able to form legally binding contracts via online agreements to be eligible to use the Service.
You must create a Bloomspot account in order to purchase an Offer.
You agree that: (1) all information you submit in registering for and using the Service will be your own, and will be true, accurate, and up to date; (2) you will select a secure and confidential password for your account and take all appropriate measures to keep your account login information secure and confidential; (3) you will notify Bloomspot immediately of any unauthorized use of your account; and (4) Bloomspot and its service providers will not be held liable for any loss or damage incurred as a result of your use of the Service.
Bloomspot reserves the right to cancel, suspend, or temporarily deactivate Bloomspot accounts for any reason, including but not limited to cases where fraud or abuse of the Service is suspected or you are found to be violating any of these Terms of Service.
2. Purchasing Offers
When you purchase an Offer, you will obtain a certificate ('Certificate') that is issued by the Merchant. The Certificate is redeemable for goods or services sold by the Merchant. The Merchant is the holder of funds related to your purchase of the Certificate. The Merchant, and not Bloomspot shall be responsible: (i) for honoring each Certificate and providing you with the applicable goods or services and (ii) for any injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Merchant, as well as for any unclaimed property liability arising from unredeemed Certificates. All warranties for any goods and services are the responsibility of the Merchant and not Bloomspot.
Bloomspot will send you e-mail confirmation for each Offer that you purchase containing a link to a printable copy of your Certificate. To redeem your Certificate, unless noted otherwise, you must bring a printed copy of the Certificate to the applicable Merchant. Specific or different redemption instructions may be described on the Certificate (such as entering the Certificate's code into a website or displaying the Certificate to a Merchant via a mobile device). Your Certificates will be available on the "My Account" page of the Service.
By purchasing an Offer you authorize Bloomspot to charge the account associated with the payment method that you have selected to pay for your Offer ('Payment Account'). Bloomspot purchases will appear as 'Bloomspot' on your Payment Account statement.
3. IMPORTANT – CERTIFICATE REDEMPTION POLICIES
Offers by Merchants will specify the amount that you have to pay for the Certificate (the "Paid Value") and an amount in excess of the amount you paid (the "Promotional Value") that the Merchant has agreed to provide if the Certificate is redeemed by a certain date, meaning Merchants may specify that the Promotional Value is redeemable only until the date specified on the Certificate. The Paid Value of the Certificate does not expire, unless otherwise specified. For example, an Offer for a ticketed event or an Offer where you select a specific day to stay at a hotel may have an expiration date for both the Paid and Promotional Value. Merchants may also have cancellation policies associated with their Offers that could result in loss of Paid Value for failure to abide by any such policy.
For more information on Certificate redemption policies, please visit the Bloomspot FAQs page at http://bloomspot.desk.com and also carefully review the 'Offer Details' section of each Offer before you purchase.
4. Certificate Terms
You will always receive a Certificate when you purchase an Offer. Certificates are subject to the terms below and any additional terms that are displayed in the 'Offer Details' section of each Offer that is presented to you before you purchase the Certificate or which may be printed on the Certificate ("Certificate Terms"). When you buy a Certificate, the Certificate Terms form a contract between you and the Merchant, so please read them carefully. Bloomspot is not a party to any of these terms between you and the Merchant.
The Bloomspot Service provides for three types of Offers: 1) Standard, 2) Event and 3) Prepaid Travel, each of which is described below. From time to time you may also receive special Offers that may contain additional or different terms than those described below. When you receive special Offers we will explain how they work and what terms apply.
Unless otherwise stated on a Certificate or permitted by the Merchant, the following rules apply to all Standard Offer Certificates:
a. Certificates have two components – the Paid Value amount you paid for the Offer, which does not expire, and a separate Promotional Value that represents the balance of the value of the Offer that can be redeemed if the Certificate is used by the deadline stated on the Certificate.
b. Certificates may be applied only to Merchant's goods and services, and may not be applied to taxes, gratuities, service fees shipping or handling charges.
c. Limit one (1) Certificate per redemption. Only one Certificate can be used per order.
d. Certificates must be redeemed in their entirety.
e. Certificates may not be used to purchase gift certificates or gift cards and may not be combined with other offers.
f. Other eligibility requirements are determined by Merchants, and shall be displayed in the 'Offer Details' section of each Offer presented on the Service and on the Certificate.
g. Issuing a credit to you upon return of a damaged product or a product returned for other reasons is at Merchant's sole discretion. You are encouraged to review the Merchant's policies that apply to your purchase.
h. Neither Bloomspot nor the Merchant is responsible for a lost, damaged or stolen Certificate.
i. Reproduction, sale, trade, or transfer of Certificates is prohibited unless the Certificate Terms state that the Certificate can be given as a gift.
j. Any attempted redemption not consistent with these Terms of Service will render the Certificate null and void.
k. Certificates are subject to these Terms of Service.
Unless otherwise stated on a Certificate or permitted by the Merchant, the following rules apply to all Event Offer Certificates:
a. Standard Offer rules apply to the extent applicable, however, the Paid Value and the Promotional Value will typically expire at the same time.
b. When you purchase an Event Offer you will receive a Certificate redeemable for a ticket or admission to a specific event (collectively 'Ticket').
c. Tickets are non-transferrable, may not be sold, auctioned, or bartered, and have no value once the event date and time has passed.
d. Tickets are only refundable: (i) by request until midnight on day of purchase; (ii) automatically if the event is canceled and not rescheduled, and (iii) upon request if event is rescheduled.
e. Tickets: (i) include all taxes and additional fees; (ii) do not include gratuity; (iii) are ineligible for upgrades, and (iv) may not be used in conjunction with other offers.
f. Opening acts, as well as individual performers, are subject to change or cancellation at any time without notice or recourse by you.
g. Venues may search you as a condition of admission, ban or restrict certain items from being brought to the event and impose other rules on Ticket-holders. You agree to all such rules and conditions and waive any related claims that may arise in conjunction with their imposition or execution.
h. A Ticket is a revocable license and admission may be refused, or continued attendance at the event may be revoked for violation of the venue's rules without refund, or for any or no reason upon refunding the amount paid.
i. You voluntarily assume all risks and danger incidental to the event for which the Ticket or Certificate is issued, whether occurring before, during or after the event, and you waive any claims for personal injury or death against Bloomspot, Merchant, the venue, the issuer of the tickets and all of their respective affiliates, agents, officers, directors, owners and employees on behalf of yourself and any accompanying minor or ward.
j. You agree not to record or transmit, or aid in recording or transmitting, any description, account, picture, or reproduction of any event for which you purchase a Certificate.
k. You agree that the event for which you purchase a Certificate is a public event, that your appearance and actions inside and outside the venue where the event occurs are public in nature, and that you have no expectation of privacy with regard to your actions or conduct at the event.
Prepaid Travel Offer:
Unless otherwise stated on a Certificate or permitted by the Merchant, the following rules apply to all Prepaid Travel Offer Certificates:
a. Standard Offer rules apply to the extent applicable, however, the Paid Value and the Promotional Value will generally expire at the same time.
b. When you purchase a Prepaid Travel Offer you authorize Bloomspot to facilitate the booking of a reservation on your behalf, including making payment arrangements to the Merchant described in the Prepaid Travel Offer on your behalf.
c. Unless otherwise stated in the Offer Details, taxes and fees are not included in the price of the Offer.
d. Prepaid Travel Offers are ineligible for upgrades, cannot be combined with other travel offers, are non-transferrable, may not be sold, auctioned, or bartered, and have no value once the check-in or other use by date has passed.
e. Prepaid Travel Deals may only be canceled as specified in the 'Offer Details' section of each Prepaid Travel Offer. Cancellations to any Prepaid Travel Offer after the cancellation deadline and modifications to the traveler's name are at the discretion of the Merchant. Refunds are available only in cases where the Merchant cancels or changes the dates of travel.
f. You agree to abide by any additional rules and restrictions that the Merchant may require and violation of such additional rules and restrictions may result in additional charges or the cancellation of your Prepaid Travel Offer. Bloomspot does not facilitate and is not liable for any special requests, which may be made directly with the Merchant prior to check-in at the Merchant's discretion.
g. You voluntarily assume all risks and danger incidental to, arising out of, or related to the Prepaid Travel Offer, and you waive any claims for personal injury or death against Bloomspot and Merchant and all of their respective affiliates, agents, officers, directors, owners and employees, on behalf of yourself, and any accompanying minor or ward.
Except as explicitly stated otherwise in the terms of a specific Offer, if you change your mind about purchasing a Offer, please contact us at Bloomspot Inc., 201 North Walnut St. DE1-1116 Wilmington, DE 19801 Fax: 1-855-602-5957 within 30 days of your purchase and Bloomspot will refund the Paid Value of any unredeemed Certificate to your Payment Account. Please note that the 30 day refund period generally will not apply to Event and Prepaid Travel Offers. Refund requests are subject to verification from the Merchant that your Certificate has not been redeemed. In addition, Bloomspot will always honor your request for a refund of the Paid Value of any unredeemed Certificate if the Merchant goes out of business before you have had the opportunity to redeem your Certificate or otherwise take advantage of the Offer you have purchased.
If you have trouble redeeming a Certificate for any reason, please contact us so we can work with the Merchant to resolve the issue.
201 N. Walnut Street
Wilmington, DE 19801-2920
6. Promotional Credits
From time to time, Bloomspot may award various credits related to your use of the Service ('Promotional Credits'). Promotional Credits may be applied as a credit towards future purchases through the Service and may be referred to as Bloom Rewards. Promotional Credits will be subject to additional terms disclosed at the time the credits are provided including, but not limited to, expiration dates. To redeem Promotional Credits you must be logged into the Service and request that the Promotional Credits be applied to your purchase. Promotional Credits have no cash value, cannot be redeemed for cash, and can only be used toward the purchase of Certificates until the expiration date identified for such credits. Sale, barter or exchange of Promotional Credits is strictly prohibited. If you or Bloomspot cancel your participation in the Service or the Service is discontinued, any unused Promotional Credits in your account will be forfeited.
7. Product / Service Descriptions
Bloomspot attempts to be as accurate as possible in its description of each Offer and requires Merchants to provide accurate and complete descriptions for their Offers and Certificates. However, Bloomspot does not warrant that the descriptions of Offers, Certificates or other content of the Service are accurate, complete, reliable, current, or error-free.
8. Modification of these Terms of Service
Bloomspot shall have the right at any time to change or discontinue any aspect or feature of the Service.
Bloomspot may modify or revise these Terms of Service at any time. If you do not wish to accept the new Terms of Service, you must discontinue use of the Service. You agree that your use of the Service after the date on which the Terms of Service changed will constitute your acceptance of the updated Terms of Service, and that you agree to be bound by such modifications or revisions.
You are responsible for obtaining and maintaining all Internet access, telephone, computer hardware and other equipment needed for access to and use of the Service and all charges related thereto. Bloomspot shall not be liable for any damages to equipment resulting from your use of the Service.
10. Use of the Service.
Subject to the restrictions in these Terms of Service, you may use the Service solely for your individual and personal use and as intended by Bloomspot through the normal functionality of the Service. Except for this personal use, you are NOT receiving a license or any other rights from us, including intellectual property or other proprietary rights of Bloomspot or any other person or entity. YOU UNDERSTAND THAT YOU HAVE NO RIGHTS TO THE SERVICE OR ANY OTHER BLOOMSPOT PROPERTY EXCEPT AS WE INDICATE IN THESE TERMS OF SERVICE. We reserve all rights, not expressly granted, in and to the Service and its content.
11. Restrictions on Use
Bloomspot reserves the right to modify, suspend, or discontinue access to the Service or any related services for any reason, including but not limited to a violation of any of the restrictions below.
You agree that you will not:
a. Use the Service or any related service for any phishing, spoofing, illegal or fraudulent activity; to violate any laws; or to access or attempt to access unauthorized information;
b. Use the Service for any commercial or promotional activities or sales efforts without prior written consent from Bloomspot;
c. Use the Service or any related service to attack, threaten violence, stalk, harass, incite, harm, or intimidate any other user, person or organization, or to engage in any other threatening behavior;
d. Transmit or post any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, fraudulent, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable, for example, any materials containing slurs, hate speech or that attack an individual or group on the basis of race, color, religion, national origin, or sexual preferences;
e. Transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
f. Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
g. Interfere with or disrupt or attempt to disrupt the Service or servers or networks connected to the Service, or cause excessive traffic demands on the Service's technology infrastructure, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service or our services;
h. Engage in the unauthorized use, copying, reverse engineering, or distribution of any of the Service's content; or
i. Process, collect or record user information or Service content, or otherwise access the Service without Bloomspot's permission, including through automated means, such as robots, spiders, scrapers, or Service search/retrieval applications.
12. Links and Third Party Content
The Service contains content that is provided by third parties. You acknowledge that by using the Service, you may be exposed to content that you find objectionable, or that is inaccurate, misleading or incomplete. Bloomspot is not responsible for the accuracy, completeness or usefulness of any content, nor do we make any endorsement for the Service's third party content. You use the Service and the content at your own risk.
The Service provides links to other Internet sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that Bloomspot is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials contained in or available from such sites or resources. You further acknowledge and agree that Bloomspot shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any third party site or resource.
13. Copyright and Trademarks
You acknowledge that you do not acquire any ownership rights in any material available on the Service.
ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THE SERVICE OR ANY OF ITS ELEMENTS WITHOUT BLOOMSPOT'S EXPRESS WRITTEN PERMISSION IS STRICTLY PROHIBITED. Violations of this policy may subject you to civil and/or criminal penalties.
Bloomspot, and the Bloomspot logos, and other names, logos, icons and marks identifying Bloomspot and its products and services are trademarks of Bloomspot. All rights in respect of these marks are hereby expressly reserved. You may not use any such marks without prior written permission. Unless otherwise indicated, all other trademarks appearing on the Service are the property of their respective owners.
14. DMCA Notice
Bloomspot respects the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting through any application or website offered by us any materials that violate another party's intellectual property rights. When we receive proper Notification of Alleged Copyright Infringement as described below, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers in accordance with the Digital Millennium Copyright Act.
A. Notification of Alleged Copyright Infringement
If you believe that your own copyrighted work is accessible through any website or application provided by us in violation of your copyright, you may provide our Designated Agent with a written communication as set forth in the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. ¤ 512(c)(3) that contains substantially the following:
1. Identify in sufficient detail the copyrighted work or intellectual property that you claim has been infringed so that we can locate the material. For example, "The copyrighted work is my content that appears at http://www.mycontentpage.com/item1_qjofkrns123." If multiple copyrighted works at a single online site are covered by your Notification, you may provide a representative list of such works at that site.
2. Identify the URL or other specific location on the application or website provided by us that contains the material that you claim infringes your copyright described in Item 1 above. You must provide us with reasonably sufficient information to locate the alleged infringing material. For example, "The content at the following URL infringes on my copyright http://www.anothercontent.com/item2_hjdsi899"
3. Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.
4. Include 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.
5. Include a statement by you that the information contained in your Notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the owner's behalf.
6. Include your name, mailing address, telephone number and email address. You may submit your Notification of Alleged Copyright Infringement to our Designated Agent by fax, mail, or E-Mail as set forth below:
Designated Copyright Agent: Amy Scalise, JPMC Legal Department, Mail Code NY1-A425, One Chase Manhattan Plaza, 25th Floor, New York, New York, 10081, Attn: Workflow Manager Phone: 312-732-6910 Fax: 312-732-4172 E-Mail: firstname.lastname@example.org
Please note that you may be liable for damages, including court costs and attorneys' fees, if you materially misrepresent that content on our website and/or application is copyright infringing.
Upon receiving a proper Notification of Alleged Copyright Infringement as described in this Section A, we will expeditiously remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of your claim. We also will advise the alleged infringer of the DMCA statutory Counter Notification procedure described below in Section B by which the alleged infringer may respond to your claim and request that we restore this material. If we receive a Notification of Alleged Copyright Infringement that does not contain all of the information described above, but provides a way for us to contact you, we will promptly follow up with you to request that you provide any information not previously provided.
B. Counter Notification
If you believe your own copyrighted material has been removed from our website or application as a result of mistake or misidentification, you may submit a written Counter Notification to our Designated Agent pursuant to 17 U.S.C. ¤ 512(g)(2) and (3). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following:
1. Identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled.
2. A statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which the service provider may be found.
3. A statement that you will accept service of process from the party that filed the Notification of Alleged Copyright Infringement or the party's agent.
4. Your name, address and telephone number.
5. A statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
6. Your physical or electronic signature. You may submit your Counter Notification to our Designated Agent by fax, mail, or E-Mail as set forth below:
Designated Copyright Agent: Amy Scalise, JPMC Legal Department, Mail Code NY1-A425, One Chase Manhattan Plaza, 25th Floor, New York, New York, 10081, Attn: Workflow Manager Phone: 312-732-6910 Fax: 312-732-4172 E-Mail: email@example.com
If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material after 10 business days but no later than 14 business days from the date we receive your Counter Notification, unless our Designated Agent first receives notice from the party filing the original Notification of Alleged Copyright Infringement informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question.
Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney's fees.
C. Repeat Infringer Policy
In accordance with the DMCA and other applicable law, we will terminate access to our website or application by users who are repeat infringers. We may also at our sole discretion limit access to our application and/or website and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Bloomspot shall have the right, but not the obligation, to monitor the content of the Service at all times to determine compliance with these Terms of Service and any operating rules established by Bloomspot, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, Bloomspot shall have the right to remove any material that it finds, in its sole discretion, to be in violation of these Terms of Service or otherwise objectionable.
You understand that you are personally responsible for your activity in connection with the Service and your use of the services we provide. You agree to indemnify and hold Bloomspot, and its affiliates, business partners, and all of their respective agents, officers, directors, owners, and employees, harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys' fees) arising from: your use of the Service or access to the Service; any fraud or manipulation by you; your violation of any of these Terms of Service; your violation of any applicable law or the rights of any third party, including without limitation any copyright, property, or privacy right; or any claim that one of your submissions or any of your content caused damage to a third party. This indemnification obligation will survive these terms and your use of the Service.
17. Termination and Survival
Bloomspot may terminate this agreement at any time. Without limiting the foregoing, Bloomspot reserves the right to cancel, suspend, or temporarily deactivate Bloomspot accounts or passwords for any reason, including but not limited to cases where fraud or abuse of the Service is suspected or you are found to be violating any of these Terms of Service. The provisions of Sections 1, 2, 3, 4, 5, 6, 13, 14, and 16 through 21, as well as any other provision that by its terms, is intended to survive, will survive termination of this Agreement.
18. Data and Privacy
19. Governing Law
These Terms of Service and your use of the Service will be governed by federal and Delaware law, without giving effect to the conflict of laws provisions thereof, and will apply no matter where you live or use the Service.
20. Disputes / Arbitration / Class Action Waiver / Jury Waiver
Bloomspot hopes to meet your expectations and deliver value to you. However, there may be instances when you have a problem or dispute that needs special attention. In those instances, Bloomspot is committed to working with you to reach a reasonable resolution; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with the Service or any Offer or Certificate purchased, you agree that you will first give Bloomspot an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute to Bloomspot Inc., 201 North Walnut St. DE1-1116 Wilmington, DE 19801 Fax: 1-855-602-5957. You then agree to negotiate with Bloomspot in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after Bloomspot's receipt of your written description of it, you agree to the further dispute resolution provisions below.
Binding Arbitration. The arbitration provisions of these Terms of Service are governed by and enforceable under the Federal Arbitration Act (the "FAA"), 9 U.S.C. ¤1-16 as amended (this Section 20 may be referred to as the 'Arbitration Agreement.'). This Arbitration Agreement states the circumstances and procedures under which Claims (as defined below) will be resolved instead of being litigated in court. All Claims are subject to arbitration on an individual basis as set forth in this Section 20.
Parties Covered. Any Claim by either you or us is subject to binding arbitration. In addition, any Claim by anyone related to or who works for either you or us is subject to arbitration. This includes employees, agents, independent contractors, parents or affiliated companies and/or related or affiliated individuals, as well any of their successors and predecessors. Any third party providing benefits, services or products in connection with the Service is also subject to arbitration if the third party is a co-defendant in any Claim against us.
Claims Covered. Upon the demand of either party, all Claims are subject to binding arbitration, no matter the theory on which they are based or what remedy is sought, except that issues of validity, scope, enforceability or unconscionability of this Arbitration Agreement (this Section 20) shall not be subject to arbitration. The term Claim is to be given the broadest possible meaning. This includes any and all claims that arise in whole or in part out of or relate in any way to your use of the Service, your attempted use of the Service, your purchase or redemption of any Offer or Certificate, and any act or omission by Bloomspot related to your use of the Service or any product or service purchased in connection with the Service and any and all claims arising under (in whole or in part) or relating in any way to the Bloomspot End User License Agreement for the Bloomspot mobile app or any other related agreement or activity ("Claim").
Preservation of Individual Small Claims Procedures. As an exception to this Arbitration Agreement, you retain the right to pursue in a small claims court any Claim that is within that court's jurisdiction and proceeds on an individual basis, and we will not demand arbitration in connection with any individual Claim that you properly file and pursue in a small claims court of your state or municipality, so long as the Claim is pending only in that court.
Waiver of Class Action and Similar Procedures. If a party elects to arbitrate a Claim, the arbitration will be conducted solely on an individual basis, and not as a class action or any procedure similar to a class action. This means that even if a class action lawsuit or other representative action, such as that in the form of a private attorney general action, is filed, any Claim between us related to the issues raised in such lawsuits will be subject to an individual arbitration claim if either you or we so elect. You do not have the right to an arbitration or court action on a class action, representative or private attorney general basis. No arbitration will be consolidated or joined with any other arbitration proceeding without the consent of all parties.
Initiation of Arbitration. The party filing a Claim must choose one of the following two arbitration administrators: American Arbitration Association or JAMS. Should the case arise that both the American Arbitration Association and JAMS are unable or unwilling to hear the arbitrations, the parties will select a mutually agreeable alternative and failing that, the court may appoint an arbitrator in accordance with section 5 of the FAA. The administrator does not conduct the arbitration. Arbitration is conducted under the rules of the selected arbitration administrator by an impartial third party. Any arbitration hearing shall be held at a place chosen by the arbitrator or arbitration administrator in the federal judicial district where you reside. You may obtain copies of the current rules of each of the two arbitration administrators, information about arbitration and arbitration fees, and instructions for initiating arbitration by contacting the arbitration administrators as follows:
American Arbitration Association, 335 Madison Avenue, Floor 10, New York, NY 10017-4605, Web site: www.adr.org, 800-778-7879; or
JAMS, 1920 Main Street, Suite 300, Irvine, CA 92614, Web site: www.jamsadr.com, 800-352-5267.
Procedures and law applicable in arbitration.
A single, neutral arbitrator will resolve Claims. The arbitrator will either be a lawyer with at least ten years of experience or a former judge. The arbitration will be conducted under the applicable procedures and rules of the arbitration administrator that are in effect on the date the arbitration is filed. If the rules are inconsistent with this Arbitration Agreement, then this Agreement will prevail. The arbitrator will apply Federal law and to the extent that State law applies, the applicable substantive law of the State of Delaware, but not Delaware choice of law rules, consistent with the FAA and applicable statutes of limitations, and will honor claims of privilege recognized at law. The arbitrator will take reasonable steps to protect customer Account information and other confidential information. The arbitrator will have the power to award to a party any damages or other relief provided for under applicable law, but will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding. If the law authorizes such relief, the arbitrator may award punitive damages or attorney fees. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.
Costs. We will reimburse you for reimbursement of all fees or costs charged by either the arbitrator or arbitration administrator up to a cap of $500. The payment of any such fees by us will be made directly to the arbitration administrator selected by you or us. All other fees will be allocated in keeping with the rules of the arbitration administrator and applicable law. However, we will advance or reimburse filing fees and other fees if the arbitration administrator or arbitrator determines there is good reason for requiring us to do so or you ask us and we determine there is good cause for doing so. Each party will bear the expense of the fees and costs of that party's attorneys, experts, witnesses, documents and other expenses, but for good cause, the arbitrator may require Bloomspot to pay the reasonable costs and fees of any neutral expert appointed by the arbitrator. This is true regardless of which party prevails except that the arbitrator shall apply any applicable law in determining whether a party should recover any or all fees and costs from another party.
Enforcement and finality. Failure or any delay in enforcing this Arbitration Agreement in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. Any decision rendered in such arbitration proceeding will be final and binding on the parties. An arbitration award will be enforceable as provided by the FAA or other applicable law by any court having jurisdiction.
Severability, Survival. This Arbitration Agreement shall survive: (i) termination or changes in these Terms of Service, your Service account, and the relationship between you and Bloomspot concerning the Service; (ii) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf; and (iii) payment of the debt in full. If the class action waiver in this Arbitration Agreement is not enforced, then the entire Arbitration Agreement shall not apply. If any other portion of this Arbitration Agreement is not enforced, the remaining portions shall remain in force.
a. These Terms of Service (including their referenced policies such as the Certificate Terms and any operating rules for the Service) constitute the entire agreement of the parties with respect to the subject matter hereof.
b. If any part of these Terms of Service is held invalid or unenforceable, then that part will be modified or construed to reflect the parties' original intention. All remaining provisions will remain enforceable and in full force and effect.
c. A waiver by either party of any term or condition, or a failure to act on any breach thereof, in any one instance, will not waive such term or condition or the right to act on any subsequent breach thereof, or of any other provision.
d. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service, and you do not have any authority of any kind to bind Bloomspot in any respect whatsoever.
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