PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING, DOWNLOADING OR USING THE SERVICE. BY ACCESSING, DOWNLOADING OR USING THE SERVICE, YOU AND/OR ANY ENTITY FOR WHICH YOU ACT ON BEHALF OF Will BE BOUND BY THE TERMS OF THIS AGREEMENT. IF THE USER IS AN ENTITY, THEN THE TERMS OF THIS AGREEMENT SHALL APPLY TO THE ENTITY, AND ALL OF ITS AFFILIATES, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, AND OTHER USERS OF THE SERVICE. THE AGREEMENT BY AN EMPLOYEE, CONSULTANT OR CONTRACTOR ACTING ON BEHALF OF AN ENTITY TO THIS AGREEMENT WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY. ANY SUCH EMPLOYEE, CONSULTANT OR CONTRACTOR HEREBY REPRESENTS AND WARRANTS THAT HE, SHE, OR IT HAS AUTHORITY, OR HAS BEEN PROVIDED AUTHORITY, TO BIND THE ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY SELECTING THE “YES” OR “DOWNLOAND” OR “SUBSCRIBE” OR “SIGNUP” BUTTON, Subscriber CONSENTs TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT AND YOU DO NOT AGREE TO ALL OF ITS TERM AND CONDITIONS, THEN SELECT THE “NO” BUTTON OR DO NOT ACCESS THE SERVICE.
Subscriber MAY NOT USE THE SERVICE IF: (A) Subscriber CANNOT ENTER INTO A BINDING CONTRACT WITH BloomAPI; (B) Subscriber is UNDER 18 YEARS OF AGE, IN WHICH CASE Subscriber MUST NOT CREATE AN ACCOUNT, USE ANY PART OF THE SERVICE, OR SUBMIT PERSONAL INFORMATION THROUGH THE SERVICE OR TO BloomAPI; (C) Subscriber is NOT ALLOWED TO RECEIVE PRODUCTS, INCLUDING SERVICES OR SOFTWARE, FROM THE UNITED STATES; OR (D) Subscriber HAs PREVIOUSLY BEEN BANNED FROM USING THE SERVICE.
USES AND LIMITATIONS
Subject to the terms and conditions of this Agreement, during the Term (as defined below), BloomAPI grants Subscriber a non-exclusive, non-transferable and non-sublicensable right to access, download and use the Service in accordance with: (i) applicable law, (ii) Subscriber’s legitimate business purposes, and (iii) BloomAPI’s applicable documentation.
In connection with the Service, Subscriber shall:
- Not share account information, including username and password, with any other user at the Service and/or permit any other individual or entity to use Subscriber’s account;
- Not use the Service for any illegal or unauthorized purpose or beyond the scope of expected use for the Service;
- Not intentionally interfere with the operation of the Service or with any other person or entity’s use of the Service;
- Not intentionally gain or grant unauthorized access to the Service;
- Be solely liable for Subscriber’s, including, if Subscriber is an entity, without limitation all of its employees, affiliates, consultants, service providers, and users, conduct, acts and omissions;
- Not alter, modify, adapt, reverse engineer, decompile, disassemble or hack the Service, or create derivative works from the Service;
- Not merge the Service with other software;
- Not resell, sell, lease, lend, redistribute, sublicense, assign or otherwise transfer the Service to any third party;
- Not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service;
- Not remove or alter any copyright notices or other notices included in the Service;
- Not alter or modify another website so as to falsely imply that it is associated with BloomAPI and/or the Service;
- Not use the Service to create or transmit unwanted messages, promotions, spam or content that includes any advertising;
- Not intentionally transmit any viruses, bugs, worms, or any other computer code of a destructive nature or that may harm a network, computer, server, hardware, software or telephone equipment using the Service;
- Not violate any individiaul’s or entity’s legal rights (e.g. privacy rights) or any applicable laws (e.g. HIPAA or copyright laws) in Subscriber’s jurisdiction while using the Service;
- Remain solely responsible for any message data sent from Subscriber’s account;
- Not use any data mining, robots, or similar data gathering and extraction methods in connection with the Service;
- Not use any robot, spider, scraper, or other automated means (other than in accordance with this Agreement) to access the Service for any purpose without BloomAPI’s express written permission or bypass measures BloomAPI may use to prevent or restrict access to the Service;
- Not impose an unreasonable burden on the Service or network;
- Not breach, or attempt to breach, the security of the Service;
- Not attempt to get a user ID, password, or other user information, or any other primary information from another user or subscriber. BloomAPI’s employees will NEVER ask for Subscriber’s password. DO NOT give your password, secret answers, or billing information out to anyone.
- Not use the Service or export the Service in violation of U.S. export laws and regulations;
- Not solicit any activity, unlawful or otherwise, that infringes BloomAPI’s rights or the rights of any other party;
- Not enable others to violate any of the terms and conditions of this Agreement; and
- Ensure that the Subscriber is at least 18 years of age or older.
A violation of any of the terms in this Agreement by Subscriber may result in the immediate termination of Subscriber’s BloomAPI account and Subscriber’s ability to access or use the Service, which decision shall be made by BloomAPI, in its sole and absolute discretion, with or without notice.
The Service, and the respective structures, organization, documentation, software and source code continued in the Service constitute valuable intellectual property of BloomAPI and are owned solely by BloomAPI. BloomAPI does not grant and Subscriber acknowledges that it shall have no right, license or interest in any patent, copyright, trademark, or trade secret owned, used or claimed now or in the future by BloomAPI. No title to or ownership of the intellectual property contained in the Service, the software, or any part of the Service or the software, as well as all enhancements, updates, modifications, local versions or any derivatives of the Service or the software, or any and all intellectual property and proprietary rights therein, or BloomAPI’s confidential information is transferred, licensed or otherwise granted to Subscriber.
The Service does not include the provision of medical advice by BloomAPI. BloomAPI does not offer medical advice or diagnoses or engage in the practice of medicine. Information and materials provided through the Service are provided by Subscriber and other users in their sole discretion. Subscriber must determine the validity and accuracy of any Data received or transmitted through the Service.
The Service is provided for access and use only by persons or entities located in the United States. Subscriber acknowledges that it may not be able to access the Application outside of the United States and that access to the Service outside the United States may not be legal by certain persons or in certain countries. If Subscriber access the Service form outside the United States, Subscriber is responsible for compliance with any and all local laws.
SUBSCRIBER REPRESENATIONS AND WARRANTIES
Subscriber represents and warrants that Subscriber fully understands and acknowledges that:
i. the Service is intended to be a non-critical, non-emergency communication tool between users; ii. the Service is dependent upon a number of factors outside the control of BloomAPI, including but not limited to, the operation of third party provided hardware and network Service; iii. the Service is not a substitute for any of Subscriber’s current systems of administering medical treatment and/or medicine and safeguarding such information or services; iv. there may be occasional communication failures or delays in the delivery or receipt of properly sent messages through the Service; v. the Service is not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care environments; and vi. no patient identifiable information may be transmitted unless Subscriber has executed a business associate agreement with BloomAPI or is linked to a Subscriber’s account that has done so.
By using the Service, Subscriber grants BloomAPI permission to send Subscriber messages regarding the Service, its features, service alerts, and network activity. Notwithstanding the foregoing, it is Subscriber’s responsibility to register for updates from, and/or regularly check, BloomAPI’s webpages for updates with respect to the Service. Subscriber’s continued use of the Service after such updates will constitute Subscriber’s acceptance of any such changes.
PAID SUBSCRIPTION SERVICES
BloomAPI offers certain premium subscription services (the “Paid Services”) that Subscriber may choose to receive for a monthly access fee (the “Fee”). If Subscriber elects to receive the Paid Services by submitting an appropriate enrollment request, the terms of this Section shall govern the payment of any and all Fees associated with the Paid Services. The total Fee will be determined based upon the specific Paid Services selected by Subscriber. The pricing for individual or bundles of Paid Services will be noted when Subscriber selects the Paid Services that Subscriber will receive. BloomAPI reserves the right to adjust the Fee at any time and in its sole discretion. Any adjusted Fee will apply to the next immediately following month. If Subscriber continues to utilize the Paid Service, Subscriber will be deemed to have accepted the modified Fee.
The Fee shall be payable monthly, in advance, on the first day of each month. Subscriber shall be required to provide a valid credit card when signing up for the Paid Services. BloomAPI shall automatically charge Subscriber’s credit card on the first day of each month in payment for use of the Paid Services. If Subscriber begins receiving and/or terminates access to the Paid Services other than on the first day of the month, the Fee for that month shall be prorated. At BloomAPI’s sole discretion, Subscriber may be eligible for a free trial period for which time Subscriber shall not be charged the Fee. Subscriber may be required to provide a credit card even if receiving a free trial and Subscriber authorizes BloomAPI to charge such credit card, without further notice, for the Fee if access to the Paid Services continues beyond the end of any free trial period.
In the event any Fee is not received by BloomAPI when due, then BloomAPI may (i) charge interest on past due balances at the lesser of one and half percent (1.5%) per month or the highest rate allowed by law, (ii) without limiting any of its other rights and remedies, suspend Subscriber’s access to and use of the Paid Services, and (iii) revise the payment terms for subsequent billing periods. In the event that Subscriber defaults in its payment obligations, BloomAPI may recover its costs of collection, including attorneys’ fees.
Unless expressly provided otherwise, the Fees do not include taxes. Subscriber will pay any taxes, other than those based on BloomAPI’s net income, arising out of this Agreement. If Subscriber is tax-exempt, Subscriber will send BloomAPI a copy of Subscriber’s tax-exempt certificate upon request. Subscriber shall be responsible for any liability or expense incurred by BloomAPI as a result of Subscriber’s failure or delay in paying taxes due.
TERM AND TERMINATION
This Agreement shall be effective as of the date Subscriber accepts this Agreement or first accesses, downloads or uses any of the Service (the “Effective Date”) and shall remain in effect for so long as Subscriber uses or accesses any of the Service or until Subscriber is terminated by BloomAPI as provided in this Agreement (the “Term”). Upon termination of this Agreement, Subscriber shall no longer be permitted to use or access the Service. The terms in this Agreement that contemplate obligations after the Term, including but not limited to Indemnification, Disclaimer, Limitation of Liability, Controlling Law and Severability, and Confidentiality, shall survive termination of this Agreement.
“Confidential Information” means any non-public data, information and other materials regarding the products, software, services, prices and discounts, or business of a party (and/or of third parties, to the extent a Party is bound to protect the confidentiality of any third “parties” information) provided by a Party, its employees, contractors or affiliates (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The Parties agree, without limiting the foregoing, that any performance and security data, product roadmaps, source code, benchmark results, and technical information relating to the Service, including pricing information, shall be deemed the Confidential Information of BloomAPI. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party without the obligations of confidentiality prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information. If Confidential Information is required to be disclosed by law or governmental regulation, the Receiving Party shall provide reasonable notice to Disclosing Party of such required disclosure to the extent allowed by applicable law, and reasonably cooperate with the Disclosing Party in limiting such disclosure. Except as expressly authorized in this Agreement, the Receiving Party shall: (i) use the Confidential Information of the Disclosing Party only to perform under this Agreement or exercise rights granted to it under this Agreement; and (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care.
Compliance with Laws
Subscriber will not use the Service: (a) other than as permitted by the Health Insurance Portability and Accountability Act and its implementing regulations (“HIPAA”), as each may be amended from time to time; (b) to violate any local, state, national or international law; (c) to access any account other than Subscriber’s own; or (d) to impersonate any person or entity, or otherwise misrepresent Subscriber’s affiliation with a person or entity. Subscriber will only access, use, and/or disclose the minimum necessary information needed to perform Subscriber’s professional duties. Subscriber will not access any information or chat logs for any patients that are not under Subscriber’s care and/or treatment. In the event BloomAPI becomes aware of use of the Service other than as permitted by this Agreement, BloomAPI may, in its sole discretion, terminate Subscriber’s account. To the extent Subscriber is an entity and is engaging BloomAPI to provide the Service on the entity’s behalf, Subscriber agrees to the terms of the Business Associate Addendum attached to and incorporated into this Agreement.
Subscriber will defend, indemnify, hold BloomAPI and its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers harmless from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees and expert fees) due to, arising out of or relating in any way to Subscriber’s use of, or access to, the Service.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH SUBSCRIBER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BLOOMAPI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BLOOMAPI DOES NOT WARRANT AGAINST INTERFERENCE WITH SUBSCRIBER’S ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICE WILL BE CORRECTED, OR THAT THE SERVICE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICE. INSTALLATION OF THE SERVICE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICE. THE SERVICE ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, FINANCIAL OR ENVIRONMENTAL DAMAGE. USING THE SERVICE FOR TRADING SECURITIES IS NOT PERMITED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BLOOMAPI OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICE PROVE DEFECTIVE, SUBSCRIBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, IF APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO CASE SHALL BloomAPI OR ANY BLOOMAPI AFFILIATE’S LIABILITY TO YOU IN RESPECT TO ANY ACT OR FAILURE TO ACT IN RELATION TO THE SERVICE EXCEED US$100. FURTHERMORE, IN NO CASE SHALL BLOOMAPI AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF PROFITS, DATA, USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER COMPARABLE LOSS) ARISING FROM Subscriber’s ACCESS AND USE OF THE Service, WHETHER BASED ON WARRANTY, PRODUCT LIABILITY, PERSONAL INJURY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT BLOOMAPI OR ANY BLOOMAPI AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSION OR THE LIMITATIONS OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH JURISDICTIONS, BLOOMAPI’S AND BloomAPI AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW. BloomAPI DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH THE Service AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN Subscriber AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICE. SPECIFICALLY, BloomAPI IS NOT LIABLE TO YOU FOR ANY DAMAGE CAUSED BY THE ACTIONS OF ANY MEDICAL PROFESSIONAL OR ANY OTHER THIRD PARTY.
In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall recover its reasonable attorneys’ fees and court costs.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
The parties agree that a material breach of this Agreement adversely affecting BloomAPI’s intellectual property rights in the Service or the Confidential Information may cause irreparable injury to BloomAPI for which monetary damages would not be an adequate remedy and BloomAPI shall be entitled to obtain equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
For the convenience of Subscriber, the Service may provide links to other applications, services and websites provided by third parties. BloomAPI is not responsible for the content of any other applications, services or websites linked to or from the Service. If Subscriber follows any such links, Subscriber leaves the Service and Subscriber does so entirely at its own risk. BloomAPI provides links from the Service solely as a convenience to Subscriber and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other applications, services and/or websites. BloomAPI DISCLAIMS ALL WARRANTIES, RESPONSIBILITIES, LIABILILITES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED APPLICATIONS, SERVICE OR WEBSITES, AND FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY ANY SUCH THIRD PARTIES.
This Agreement may not be assigned or transferred, in whole or in part, by Subscriber. BloomAPI may assign this Agreement in its entirety to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. BloomAPI may delegate any of its obligations hereunder, provided that it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.
CONTROLLING LAW AND SEVERABILITY
This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard to any conflict of law provisions. Each party irrevocably agrees that any claim brought by it in any way arising out of this Agreement must be brought solely and exclusively in state or federal court located in King County, Washington, and each party irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party.
In the event any one or more of the terms or provisions contained in this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement or any application thereof shall not in any way be affected or impaired, except that, in such an event, this Agreement shall be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted.
BloomAPI shall not be liable to the other for failure to perform if said failure results, directly or indirectly, from government action or inaction, mechanical or electrical breakdown, or natural disaster. In the event BloomAPI excuses its performance of any of its requirements or otherwise invokes the Force Majeure, the payment provisions in any Subscriber Agreement shall be suspended for an equal period of time. If either party is affected by an interruption or delay contemplated by this section, it will: (a) promptly provide notice to the other party, explaining the full particulars and the expected duration of the such delay and (b) use its best efforts to remedy the interruption or delay if it is reasonably capable of being remedied.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Nothing in the foregoing sentence shall exclude or restrict the liability of Subscriber arising out of fraud or fraudulent misrepresentation. Any waiver of any provision of this Agreement will be effective only if in writing and signed by BloomAPI. The failure of either party to assert any right under this Agreement shall not be considered a waiver of that party’s right will remain in full force and effect. In addition, this Agreement, including BloomAPI’s enforcement of those policies, is not intended to confer, and does not confer, any rights or remedies upon any person. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail. There are no other third party beneficiaries to this Agreement.
Last Updated: May 3, 2018