Bloomeffects, Inc.

TERMS OF USE 

Thank you for using our services! Please read the following Terms of Use (these “Terms”) carefully before using the Bloomeffects, Inc. (“Bloomeffects”, “we,” “our,” or “us”) website, located at https://www.bloomeffects.com/ (the “Website”) or participating in our Web Properties (defined below). The Web Properties enable Bloomeffects to offer cosmetics, moisturizers, cleansing products, serums, scrubs, masks and other beauty and healthcare products (the “Products”) to users of the Web Properties.

These Terms are in effect for your use of, and our collection and management in connection with:

  • Our Website.
  • Any Bloomeffects-owned online or mobile application, social media site, online features, Products, services, contests, sweepstakes, newsletters, promotions and/or programs we offer or which are accessed through the Bloomeffects Website (collectively, with the Website, the “Web Properties”).
  • Any email message that we send to you or receive from you, whether or not the email is sent using the Web Properties
  • Any account online or user profile you create when you set up a user account to use the Web Properties and/or to participate in our loyalty program (a “User Account”)

 These Terms are not applicable to any other web page operated and/or owned by any entity other than Bloomeffects and its affiliates, including, but not limited to, any website, mobile application, blog, forum, or other material operated by any third party identified on the Web Properties. When visiting these third party websites, you should refer to the terms and conditions in effect for the applicable owner.

PLEASE READ THESE TERMS CAREFULLY, WHICH INCLUDE IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS, INCLUDING A WAIVER OF YOUR RIGHT TO BRING A CLASS ACTION AGAINST BLOOMEFFECTS. BY ACCESSING OR USING THE WEB PROPERTIES, YOU ARE ENTERING INTO A LEGAL CONTRACT WITH US REGARDING YOUR USE OF THE WEB PROPERTIES AND YOU AGREE TO BE BOUND BY THESE TERMS AND ALL ADDITIONAL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ANY PORTION OF THESE TERMS, YOU SHOULD NOT ACCESS OR OTHERWISE USE THE WEB PROPERTIES. 

  • CONVENIENCE AND INFORMATION ONLY
    The Web Properties are provided to you as a convenience and for your information only. By merely providing access to the Web Properties, we do not warrant or represent that: (a) any materials, documents, images, graphics, logos, design, audio, video, and any other information provided from or on the Web Properties (collectively, the “Content”) is accurate or complete; (b) the Content is up-to-date or current; (c) we have any obligation to update any Content; (d) the Content is free from technical inaccuracies or programming or typographical errors; (e) the Content is free from changes caused by a third party; (f) your access to the Web Properties will be free from interruptions, errors, computer viruses or other harmful components; and/or (g) any information obtained in response to questions asked through the Web Properties is accurate or complete.

 

  • WEB PROPERTIES USE AND CONTENT
    You may view, copy or print a single copy of any page from the Web Properties for personal, non-commercial purposes if you do not remove, modify, or alter any copyright and proprietary rights notices that may be present. You may not otherwise use, modify, copy, print, display, distribute, publish, or sell any information from the Web Properties without our express, prior, written consent. YOU MAY NOT USE THE WEB PROPERTIES FOR ANY COMMERCIAL USE. Any special rules for the software, audio files, downloads, and other items accessible through the Web Properties may be included elsewhere in the Web Properties and are incorporated into these Terms by reference.

 

  • UPDATES
    We may make changes to the Web Properties, the Content or these Terms or stop providing any of the Web Properties and/or the Content at any time and without notice to you. We will make an effort to update the Web Properties with any changes to these Terms, and you are encouraged to review these Terms frequently (the date of the most recent revision to these Terms appears at the end of these Terms). 
  • PRIVACY
    We know that privacy is very important to you, and it is very important to us as well. By using the Web Properties, you consent to receive electronic communications from us unless you follow applicable opt out procedures. We will communicate with you by email or by posting notices on our Web Properties. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing. Personal data that you provide regarding yourself will be handled in accordance with our Privacy Notice located at https:///www.bloomeffects.com/pages/privacy-policy/. 
    • USER ACCOUNT, PASSWORD AND SECURITY
      To the extent that a User Account is created by you to access and use the Web Properties, the following shall apply:

    (a) USER ACCOUNT. To access certain features and/or Content available through the Web Properties, we may require that you sign up using your email address and a password to create a User Account. We use reasonable precautions to protect the privacy of your username, password, and User Account information. You, however, are ultimately responsible for protecting your username, password, and User Account information from disclosure to third parties, and you are not permitted to circumvent the use of required encryption technologies, if any. You agree to: (i) immediately notify us of any unauthorized use of your username, password, or User Account, or any other breach of security; (ii) ensure that you exit from your User Account at the end of each session; and (iii) use a security passcode to secure your device where your User Account information is stored. While we provide certain encryption technologies and use other reasonable precautions to protect your confidential information and provide suitable security, we do not and cannot guarantee or warrant that information transmitted through the Internet is secure, or that such transmissions are free from delay, interruption, interception or error. 

    (b) ACCURATE INFORMATION. In creating and using your User Account, you agree to: (i) provide true, accurate, current, and complete information about yourself on any registration form required for the Web Properties, including, but not limited to, your full name and email address (such information being the “Registration Data”); and (ii) 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 if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, then we have the right to suspend or terminate your User Account and refuse any and all current or future use of your User Account. Moreover, Bloomeffects cannot be responsible if the information is not correctly updated.

    (c) NON-TRANSFERABILITY OF USER ACCOUNT. User Accounts and usernames are non-transferable, and all users are obligated to take preventative measures to prohibit unauthorized users from accessing the Web Properties with his or her username and password. We will treat anyone who uses your username and password as you and we are entitled to act on all instructions received by anyone using your User Account without      liability to Bloomeffects     .  You must notify Bloomeffects immediately if you suspect someone is using your User Account without authorization.

    (d) ACCOUNT DEACTIVATION. We reserve the right to deactivate or cancel a User Account in our sole discretion, including for the following reasons: (i) you request such deactivation; (ii) you are deceased; (iii) you do not respond to repeated communication attempts regarding the status of your User Account; (iv) you reside in or relocate to a country where use of a User Account is prohibited under applicable law; or (v) you act in a fraudulent or an inappropriate manner while using the User Account. 

    (e) DATA RETENTION POLICY, MANAGING YOUR INFORMATION. We may retain User Account information and some automatically collected information for as long as you use your User Account and for a reasonable time thereafter, and we may store it in the aggregate. If you would like us to delete your User Account information that you have provided, please contact us at info@bloomeffects.com and we will respond in a reasonable time.  

    • USER CONTENT
      The Web Properties may now or in the future permit the submission of various forms of content submitted by you and other users, such as materials, statements, reviews, ratings, opinions, personal accounts, documents, images, graphics, logos, designs, videos, text files, audio files, and comments (collectively, “User Content”) and the hosting, sharing, downloading, publishing and/or republishing of such User Content.

    You shall be solely responsible for your User Content, and the consequences of posting or publishing it. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. You acknowledge that Bloomeffects reserves the right to pre-screen User Content and we have the right (but not the obligation) in our sole discretion to refuse, move, and/or remove User Content that is available on or through the Web Properties. Any of your User Content provided by you remains your property. However, by providing your User Content, you grant Bloomeffects a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit the User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Web Properties and Bloomeffects’ business), without further notice to, or consent from, you, and without the requirement of payment to you or any other person or entity.

    You represent and warrant that: (a) you either are the sole and exclusive owner of all of your User Content or you have all rights, licenses, consents and releases necessary to grant Bloomeffects the license to use your User Content as set forth above; and (b) neither your User Content nor your submission, uploading, publishing or otherwise making available of your User Content nor Bloomeffects’ use of your User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Bloomeffects in its sole discretion. 

    • OBJECTIONABLE MATERIAL
      You acknowledge that in using the Web Properties and accessing the Content, you may encounter material that you deem to be offensive or objectionable. You agree to use the Web Properties at your sole risk and that we shall have no liability to you for material that may be objectionable or offensive to you. 
    • NOT INTENDED FOR CHILDREN
      The Web Properties are not intended or designed to attract children under the age of thirteen (13). You will need to affirm that you are more than eighteen (18) years of age, or an emancipated minor, or possess parental or legal guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. If any minor uses any goods or Products from Bloomeffects it should be only after the legal or parental guardian has discussed the Product with the minor’s doctor.
    • PURCHASING PRODUCTS USING THE WEB PROPERTIES

    Supplemental terms regarding purchasing our Products, shipping procedures, returns, and other sales terms may apply to certain Web Properties and Products purchased using the Web Properties, and such supplemental terms will be disclosed to you in connection with the applicable Web Properties and/or will be disclosed on the Website. Supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Web Properties.

     (a) PRODUCTS. The Products offered for sale by Bloomeffects are those shown on the Website on the day and date on which you visit the Website and are available while supplies last. Photographs posted on the Website are meant to assist you and are meant for information purposes only. While Bloomeffects has tried to accurately display the colors of Products, the actual colors you see will depend on your monitor and may not be accurate. The photograph illustrating the Products shall not be deemed to constitute part of any contract between you and Bloomeffects, and Bloomeffects shall not be responsible for any errors contained in such photographs. The Products displayed on the Web Properties can be ordered and delivered only within the U.S.. We may sell similar products to the Products listed on our Web Properties in other countries, and such products may be sold at different prices or under different names than those listed in the US. Additional information about our Products, including information about our ingredients and use of preservatives can be found on our FAQ page of our Website at https://bloomeffects.com/pages/faqs. Bloomeffects is not required to share exact formulas or percentage of certain ingredients within our products.

     (b) PRICES. The prices for the Products are shown in U.S. dollars (USD). They are exclusive of sales tax. Bloomeffects reserves the right to modify its prices at any time. The Products will be invoiced on the basis of the prices in effect at the time the order is accepted by Bloomeffects, subject to availability of the Products. Tax is applied to the subtotal of the order are calculated based on destination of delivery. For more details regarding Alaska, Hawaii, US Territories, US Military Addresses please refer to section D & the FAQ section of our website. 

    (c) PURCHASING AND CONFIRMING ORDERS. Please note that your payment information may be stored by our third party service provider while your payment is being processed. By providing your payment information, you authorize Bloomeffects and its vendor to process the payment for Products you order using such payment information.  You may see the payment as “pending” on your credit card statement or banking information while we process your order. You may see funds “pending” or removed on your debit card statement while processing your “pending” order. Once payment has been confirmed, an electronic receipt summarizing your order will be sent to the email address you provided when completing the order using the Web Properties.

    (d) DELIVERY. We make every effort to fulfil your order no later than thirty (30) days from the following day after we receive your order. Shipments can be made within the U.S. including Alaska, Hawaii, Puerto Rico, Guam and U.S. Virgin Islands, depending on availability. Most Products may be shipped via expedited shipping to Alaska and Hawaii, but some restrictions may apply. Bloomeffects is unable to accept responsibility for failure to deliver or late delivery resulting from cases of force majeure, the actions of a third party or any error on your part, for example if you provide an incorrect postal address. In the event of any delivery delays or concerns, you should inform Bloomeffects’ customer services as promptly as possible, by emailing info@bloomeffects.com or by telephone to 1-877-969-1788 (toll free) Monday through Friday, from 9 am to 6 pm (EST).

    (e) RETURNS. We hope that you are completely satisfied with the Products. If you are not completely satisfied and wish to return or exchange an item purchased using the Web Properties, please return the unopened item within fourteen (30) days of receipt. All items marked FINAL SALE will not be eligible for return or exchange. To return your new or gently used online purchase, please email us at info@bloomeffects.com. Please include your order number, name, email address, reason for return and phone number. We recommend that you send your return via an insured method, which can be tracked in the case of loss. We regret that we do not refund original shipping costs or cover return costs. A credit or refund will be issued to the original credit card used to place the order within thirty (30) business days of receipt. Please allow for up to two (2) billing cycles for the credit adjustment to appear on your credit card statement.

    For more information about our shipping and delivery policies, please visit the FAQ page of our Website at https://bloomeffects.com/pages/faqs

    • DISCLAIMERS 

    (a) NO WARRANTIES FOR WEB PROPERTIES. When using the Web Properties, information will be transmitted in such a way that may be beyond our control. As such, we make no warranty concerning the delay, failure, interruption, or corruption of any data, the Content or other information transmitted in connection with the use of the Web Properties. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEB PROPERTIES IS AT YOUR SOLE RISK. THE WEB PROPERTIES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE WEB PROPERTIES AND THE CONTENT, OR ANY SERVICES OFFERED IN CONNECTION WITH THE WEB PROPERTIES ARE OR WILL REMAIN UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEB PAGES ON OR THROUGH THE WEB PROPERTIES, OR THE SERVERS USED IN CONNECTION WITH THE WEB PROPERTIES, ARE OR WILL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEB PROPERTIES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT WE WILL HAVE ADEQUATE CAPACITY FOR THE WEB PROPERTIES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING GOVERNMENT COMPLIANCE OF ANY SOFTWARE USED IN RUNNING THE WEB PROPERTIES. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SERVICE OR PRODUCT PROVIDED ON OR THROUGH THE WEB PROPERTIES WILL BE THE REFUND OF THE PURCHASE PRICE FOR ANY CONTENT, PRODUCTS, OR SERVICES FOUND TO BE INADEQUATE.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BLOOMEFFECTS OR THROUGH THE WEB PROPERTIES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

    NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES FROM COMPANY INTENTIONAL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE THAT ARE INCAPABLE OF EXCLUSION.

    (b)INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Bloomeffects and our directors, officers, employees, and agents from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) assessed or incurred by us, directly or indirectly, with respect to or arising out of: (i) your failure to comply with these Terms; (ii) your breach of your obligations under these Terms; and/or (iii) your use of the rights granted hereunder, including, but not limited to, any claims made by any third parties.

    (c)YOUR RESPONSIBILITIES. You are responsible for establishing such procedures as you deem appropriate to verify the accuracy of data transmitted hereunder (and we will have no obligation to verify the accuracy of such data). You acknowledge and agree that by providing the Web Properties hereunder, we are not rendering medical or other health care services, we are not engaged in the practice of medicine, and WE shall not be liable to any party for any act or failure to act relating thereto, in addition to any limitation of liability provisions contained in these Terms. You also acknowledge that the information presented on the Web Properties is in no way intended as a substitute for professional medical advice, diagnosis or treatment from a qualified healthcare provider familiar with your unique facts. Never ignore, or fail to seek, professional medical advice because of something you have learned on the Web Properties. Always seek advice of your doctor or other qualified healthcare provider regarding any medical condition and before starting any new treatment. No prescription medications or medical treatments are intentionally provided on the Web Properties. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY. Your use of the Web Properties is subject to the additional disclaimers and caveats that may appear throughout the Website.

    (d)PRODUCT INFORMATION. All material and information presented by Bloomeffects is intended to be used for personal, educational or informational purposes only. Some of the statements made about the Products may not have been evaluated by the U.S. Food and Drug Administration and the results reported, if any, may not necessarily occur in all individuals. The statements and Products sold by Bloomeffects are not intended to diagnose, treat, cure or prevent any condition or disease. All products should be used strictly in accordance with their instructions, precautions and guidelines. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or Products to be provided to you that may result in a violation of these Term, as determined by Bloomeffects in its sole discretion. Except where prohibited by law, we may limit the number of products available for purchase. 

    • LIMITATION OF LIABILITY
      IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE WEB PROPERTIES AND/OR CONTENT PROVIDED IN CONNECTION WITH THE WEB PROPERTIES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE WEB PROPERTIES AND/OR ANY CONTENT PROVIDED THROUGH THE WEB PROPERTIES. ADDITIONALLY, WE SHALL NOT BE LIABLE FOR NEGATIVE REPERCUSSIONS TO ANY PARTY BASED ON THE USE OF OR INABILITY TO USE THE WEB PROPERTIES, INCLUDING, BUT NOT LIMITED TO, LOST GOODWILL OR LOST PROFITS. WE ARE NOT LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, OR PROPERTY DAMAGE CAUSED BY YOUR USE OR MISUSE OF THE WEB PROPERTIES, THE CONTENT AND/OR THE PRODUCTS. REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS. Because some states or jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states or jurisdictions our liability will be limited to the greatest extent permitted by applicable law. These Terms give you specific legal rights. You may also have other rights that may vary from one jurisdiction to another.
    • THIRD PARTY CONTENT AND THIRD PARTY APPLICATIONS
      We may provide hyperlinks to other websites maintained by third parties, or may provide third party content on the Web Properties by framing or other methods (collectively, “Third Party Content”). In addition, the Web Properties may include certain applications, features, programs and services provided by third parties (collectively, the “Third Party Applications”). We do not monitor Third Party Content or Third Party Applications and can make no guarantee as to the accuracy or completeness of such Third Party Content or Third Party Applications. The links to third party websites, any Third Party Content, and any Third Party Applications may be provided for your convenience and information only. The content on any linked website or in any Third Party Application is not under our control and, just as with the Web Properties, we are not responsible for the content of linked websites and/or Third Party Applications, including any further links contained in a third party website. We make no representation or warranty in connection with any Third Party Content or Third Party Applications, which at all times and in each instance is provided “as is.” If you decide to access any of the third party websites linked to the Web Properties, any Third Party Content, and/or any Third Party Application, you do so entirely at your own risk. 

    If a third party links or refers to the Web Properties, it is not necessarily an indication of an endorsement, authorization, sponsorship, affiliation, joint venture, or partnership by or with us. In most cases, we are not even aware that a third party has linked to or refers to the Web Properties.

    • INTELLECTUAL PROPERTY
      The Content of the Web Properties is intellectual property owned, controlled and/or licensed by us and/or our subsidiaries and affiliates, or intellectual property that we are legally permitted to access and use. All applicable intellectual property laws, including copyright laws, protect our rights in and to the Content. No portion of the Content may be reproduced in any form or by any means, except as provided in Section 2 (Web Properties Use and Content) and elsewhere in these Terms.

    We are the copyright owner or authorized licensee of, or are otherwise permitted to use, all trademarks, service marks, and logos used and displayed on the Web Properties. All trademarks and service marks of Bloomeffects that may be referred to on the Web Properties are the property of Bloomeffects, or one of our subsidiaries or affiliates. Other parties’ trademarks and service marks that may be referred to on the Web Properties are the property of their respective owners. Nothing on the Web Properties should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of our, or our subsidiaries’ or affiliates’, trademarks, service marks, or copyrights without our prior written permission. Neither the name of Bloomeffects, Inc., nor any of our other trademarks, service marks, or copyrighted materials may be used in any way, including in any advertising, hyperlink, publicity, or promotional materials of any kind, whether relating to the Web Properties or otherwise, without our prior, written permission, except that a third party website that desires to link to the Web Properties and that complies with the requirements of Section 12 (Third Party Content and Third Party Applications) above may use the name “Bloomeffects” or the title of any Content in or as part of that link.

    • COPYRIGHT COMPLAINTS
      We own, protect and enforce copyright and other rights in our own intellectual property, and respect the intellectual property rights of others. We will respond to alleged copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”). Under the DMCA, a copyright owner may give notification to an online service provider of an alleged copyright infringement. During this process, the service provider responds by taking down the alleged infringing content, and takes reasonable steps to contact the contributor of the removed content so that a counter-notification may be filed. If a valid counter-notification is filed, we typically will restore the content in question, unless we receive notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity. We may provide copies of such notices to the affected parties or to any other third parties, at our discretion and as required by law. Our Privacy Notice, located here, does not protect information provided in these notices.

    When notifying us of potential infringement, you must include the following:

    • identification of the copyrighted work(s) claimed to have been infringed. If multiple copyrighted works, then a representative list of such works on the Web Properties;
    • identification of the supposedly infringing material that is to be removed;
    • information reasonably sufficient to permit us to locate the material on the Web Properties;
    • contact information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, or email address;
    • a statement that the complaining party has a good faith belief that use of the material is in fact infringing and/or not authorized by the copyright owner, its agent, or the law;
    • a statement that, under penalty of perjury, the information in the notification is accurate and where relevant that the complaining party is authorized to act on behalf of the copyright owner; and
    • the signature, physical or electronic, of the copyright owner or a person authorized to act on his or her behalf.

    A provider of content subject to a claim of infringement may make a counter notification. To file a counter notification with us, please provide the DMCA Agent a written communication containing the following:

    • identification of the supposedly infringing material that is to be removed;
    • a statement that, under penalty of perjury, you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
    • your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your postal address is located, and that you will accept service of process from the party who submitted the infringement notification or his, her, or its principal or agent; and
    • the signature, physical or electronic, of you or a person authorized to act on your behalf.

    We will promptly provide the party that provided the notice of claimed infringement with a copy of the counter notification, and inform the complaining party that we restore the removed or disabled content within ten (10) business days. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of the counter-notification, we will restore the removed or disabled materials. Until that time, your materials will remain removed or disabled.

    Notice of alleged infringement must be sent by electronic mail to our DMCA Agent or by certified mail and marked “Copyright Infringement”, Attn: DMCA AGENT at the address set forth at the end of these Terms.

    Before filing such a notification, make a careful determination as to whether or not the use of the material at issue is or may be protected by the “fair use” doctrine. You could potentially be held liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether there is infringement, it may be advisable to seek legal counsel. 

    • CONTESTS AND SWEEPSTAKES
      Any sweepstakes, contests, and/or promotional offers accessible on the Web Properties are governed by specific rules and/or terms and conditions. By entering a sweepstakes or contest or participating in such promotional offers available on the Web Properties, you will be subject to those rules and/or terms and conditions. It is critical that you read the applicable rules and/or terms and conditions, which are linked from the particular page or activity. To the extent of any conflict between those rules and/or terms and conditions and these Terms, the rules and/or terms and conditions for the sweepstakes, contests or promotional offer will govern for that program, but only to the extent of the conflict. Any sweepstakes, contests and/or promotional offers made available or advertised on third party sites accessible from the Web Properties (such as those of social media partners like Facebook and Twitter), in addition to being subject to the specific rules and/or terms and conditions applicable to your participation in such feature(s) on the Web Properties, will also be subject to the rules and/or terms and conditions applicable to your participation in such feature(s) on those third party sites.
    • TERMINATION OF SERVICE
      We may terminate your right to access secured portions of the Web Properties at any time, without notice, for conduct that we believe violates these Terms and/or is harmful to other users of the Web Properties, to us, to our partners, to the contributors, to the business of our Internet service provider, or to other information providers. 
    • ADDITIONAL REMEDIES
      You acknowledge that your conduct that is inconsistent with the provisions of these Terms may cause us irreparable damage for which remedies other than monetary relief may be inadequate. In such instances, you agree that we may seek injunctive or other equitable relief seeking to restrain such conduct without the necessity of proving actual harm or posting a bond.
    • NO CLASS ACTIONS
      You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
    • GOVERNING LAW AND JURISDICTION
      You agree that all matters relating to your access to, or use of, the Website or the other Web Properties shall be governed by the laws of the State of New York. You agree and hereby submit to the exclusive personal jurisdiction and venue of the state and federal courts in the State of New York, with respect to such matters.
    • LOCAL LAWS
      We make no representation that Content or materials on the Web Properties are appropriate or available for use in jurisdictions outside the United States. Access to the Web Properties from jurisdictions where such access is illegal is prohibited. If you choose to access the Web Properties from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable local laws. 
    • EXPORT RESTRICTIONS
      Any software and all underlying information and technology downloaded or viewed from any of the Web Properties or in connection with the services (collectively, the “Software or Technical Data”) by you may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are solely responsible for complying with all trade regulations and laws, both foreign and domestic, in your use and viewing of the Web Properties, the Content, and any of our Products or services, including, but not limited to, the Software or Technical Data. Except as authorized by law, you agree and warrant not to export or re-export the Software or Technical Data to any county, or to any person, entity, or end-user subject to U.S. export controls, including, but not limited to, persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals. You further represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.
    • CUSTOMER COMMENTS
      By submitting comments, information or feedback to us through email and/or the Web Properties, you agree that the information submitted will be subject to our Privacy Notice located here,

     

    SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

    Bloomeffects (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy [Insert URL Link to your Privacy Policy] (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

    1. User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.

    2. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Bloomeffects and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

    3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of [Describe company’s goods/service offerings - this should be broad and general to encompass any type of message you may send. Messages outside of this scope may not be allowed under the TCPA]. Messages may include checkout reminders.

    4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

    5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at nic@bushy.com.au. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

    6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

    7. Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

    8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

    9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

    10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes: - Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity; - Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age; - Pirated computer programs, viruses, worms, Trojan horses, or other harmful code; - Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; - Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and - Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

    11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in New York, New York before one arbitrator. The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Bloomeffects’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

    12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

    13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

    Your Consent To This Agreement

    By accessing and using the Web Properties, you consent to and agree to be bound by these Terms. If we decide to change these Terms or some part of them, we will make an effort to post those changes on this web page so that you will always be able to understand and agree to the terms and conditions governing your use of the Web Properties. Your use of the Web Properties following your acceptance of any amendment of these Terms will signify your assent to and acceptance of its revised terms for all previously collected information and information collected from you in the future. If you have additional questions or comments of any kind, or if you see anything on the Web Properties that you think is inappropriate, please let us know by sending your comments or requests to:

    info@bloomeffects.com

    Phone: 1-877-969-1788

    Copyright © 2019. Bloomeffects, Inc. All Rights Reserved.

    Effective as of: September 1, 2019

    Last updated: September 1, 2019

    Personal data should only be retained for as long as it is needed.  Bloomeffects should establish a policy of deletion for dormant accounts.

    This is accurate.  You will need to register your DMCA agent if you want to benefit from the safe harbor provisions in the DMCA.