i. “Subscriber” means the individual or entity that subscribes to the Bloomfire Service to establish a Membership Community.
ii. “Membership Community” means the website created by the Subscriber and provided through the Bloomfire Service.
iii. “Member” means any individual that has access to the Membership Community.
iv. “Item” means an element of your Membership Community subscription that is limited by the terms of the subscription, including but not limited to, number of Members, types of Members, number of Membership Communities, number of groups, amounts of storage, amounts of bandwidth utilized, number of posts, number of e-mails, amounts of User Content, and other features and functionality of the Bloomfire Service.
2. The Bloomfire Service
3. Use of the Bloomfire Service
a. By using the Bloomfire Service, Members expressly agree to the following:
i. You are 18 years old or older.
iii. Your user account will be accessed through a user ID and password that you will create (your “ID”). You are responsible for maintaining the confidentiality of your ID, and you are fully and solely responsible for all activities that occur under your ID. It is up to you to take adequate precautions with your ID, and to immediately notify Bloomfire of any unauthorized use of your ID.
iv. You shall provide accurate, true and current information as prompted during the user account registration process and shall keep it current at all times.
v. Your ID is unique to you and may not be shared with any other Member or person. You shall not share your ID or any other login credentials with any other person or publicly disclose it.
vi. You shall notify Bloomfire immediately of any breach of security or unauthorized use of your user account.
vii. Although Bloomfire will not be liable for any losses experienced by you or others which are caused by unauthorized use of your user account, you may be liable for any losses incurred by Bloomfire due to such unauthorized use.
viii. You represent and warrant that all posted data, text, links, video files, photos, or any other content (collectively, the “User Content”) that you post to the Bloomfire Service shall be your wholly original material (except for material that you are using with the permission of its owner), and does not infringe, misappropriate or violate any copyright, trademark or other rights of any third party including any rights of privacy or publicity.
ix. You shall be solely responsible for keeping a duplicate copy of all User Content; we do not accept any responsibility or liability for the loss of your User Content.
x. You shall not post User Content that is hateful, threatening, pornographic, obscene, abusive, unlawful, harassing, racially or ethnically offensive, libelous or defamatory, or any content that encourages unlawful conduct.
xi. You shall not submit material that is copyrighted, protected by trade secret or otherwise subject to intellectual property rights or third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to post the material and to grant Bloomfire all of the license rights granted herein.
xii. You shall not use the Bloomfire Service for any illegal or unauthorized purpose.
xiii. You shall not attempt to hack, destabilize or adapt the Bloomfire Service or its source code nor will. you attempt to defeat or circumvent any security features of the Bloomfire Service.
xiv. You shall not use the Bloomfire Service to transmit worms, viruses or any code of a destructive nature.
xv. You shall not, without our prior express written permission, use any high volume automated means (including robots, spiders and scripts) to access the Bloomfire Service.
xvi. You agree not to collect or harvest any personal information, including account names, from the Bloomfire Service.
xvii. You are solely responsible for obtaining and maintaining all equipment and services needed for your access to and use of the Bloomfire Service and for paying all charges related thereto.
xviii. Any comments, suggestions, or feedback relating to the Bloomfire Service (collectively, “Feedback”) submitted to Bloomfire shall become the property of Bloomfire. We will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future services or operations. Without limitation, we will have exclusive ownership of all present and future existing rights to Feedback. We will be entitled to use Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending Feedback.
xix. You shall not abuse, harass, threaten, harm or impersonate other Bloomfire users or Members or employees of Bloomfire or any of its partners, at any time or for any reason.
xx. You understand that when using the Bloomfire Service, you will be exposed to User Content provided by other users or Members and you agree that Bloomfire is not responsible for the accuracy, safety, appropriateness or intellectual property rights of or related to such content.
xxi. You shall not use the Bloomfire Service to send spam or commercial or other messages, including e-mails, to any third-party if those messages are not solicited, authorized or welcomed by the third-party, and in your use of the Bloomfire Service you must comply with all applicable laws and regulations, including (a) laws that apply in any jurisdiction to cookies, other tracking technologies, and spam and marketing practices, and (b) any applicable marketing association guidelines on ethical marketing practices.
xxii. You shall not use the Bloomfire Service for any competitive or benchmarking purposes, including monitoring the availability or functionality of the Bloomfire Service.
b. By using the Bloomfire Service, Subscribers expressly agree to the following:
i. You shall be solely responsible for all activity associated with the Membership Community, including any User Content and all activities of your Members.
ii. You represent and warrant that all User Content that your Members post to the Bloomfire Service shall be their wholly original material (except for material that is being used with the permission of its owner), and does not infringe any copyright, trademark or other rights of any third party including any rights of privacy or publicity.
iii. You agree not to collect or harvest any personally identifiable information of your Members, including account names, from the Bloomfire Service.
iv. You are solely responsible for obtaining and maintaining all equipment and services needed for your Members’ access and use of the Bloomfire Service and for paying all charges related thereto.
4. User Content
5. License Grant
b. By submitting User Content to the Bloomfire Service, you hereby grant Bloomfire a worldwide, non-exclusive, royalty-free, and sub-licensable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content for the sole purpose of operating and performing the Bloomfire Service for the Subscriber. You also grant each Member you authorize a non-exclusive license to access your User Content through the Bloomfire Service and to use, reproduce, distribute, display and perform such User Content.
6. Our Proprietary Rights
7. Dependence on Subscription; Designated Users
a. Your access to the Bloomfire Service may be dependent on your subscription to the Bloomfire Service or on the subscription of the Subscriber who pays certain fees to Bloomfire. As such, the services offered by Bloomfire depend on the terms of that subscription. If the Subscriber (including you, if applicable) ceases to pay the fees due to Bloomfire, Bloomfire may cease to provide you access to the Bloomfire Service and/or terminate your Membership Community. Similarly, if the terms of the subscription to the Bloomfire Service change, you may experience changes to the features or capacity of your account.
b. Subscriptions must be paid for in advance unless agreed to otherwise in writing. Payments for subscriptions are non-refundable. There will be no refunds or credits for any time period where the Membership Community is not used or accessed or when any Member or prospective Member fails to use or access the Membership Community.
c. Subscriber’s subscription specifies the limits on Subscriber’s use of the Bloomfire Service. Subject to the payment of additional fees specified below, Subscriber may at its option and at any time exceed such limits regarding the number of Items in using the Bloomfire Service, including without limitation the number of Members using the Bloomfire Service. In the event that Subscriber exceeds the limits to the Items set forth in the applicable subscription, Bloomfire shall charge Subscriber for the Subscriber’s additional usage of each Item in excess of these limits calculated on the per unit fee specified in accordance with the applicable subscription for each Item or the then-current list price as determined by Bloomfire if such Item is currently not specified in the relevant subscription. Such additional usage fees shall be prorated for the remainder of the subscription term in effect at the time the excess Items are added. The expiration date of the term for these additional Items will be the same as the expiration date of the term of the pre-existing subscription. Notwithstanding the foregoing, in the event that Subscriber elects to exceed the Subscription limits regarding the number of Members using the Bloomfire Service, Bloomfire shall charge Subscriber in increments of twenty-five (25) Members prorated for the remainder of the subscription term in effect at the time the number of Members is exceeded. For example, if Subscriber exceeds the Subscription limits by 6 Members, Subscriber will be charged for 25 additional Members. If Subscriber exceeds the Subscription limits by 54 Members, Subscriber will be charged for 75 additional Members.
8. Cancellation and Termination
a. Membership Community
b. Member’s User Account
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information and User Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will not be able to defeat those measures or use your personal information and User Content for improper purposes. You acknowledge that you provide your personal information at your own risk.
11. Copyright Policy
a. As set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”), if you believe that your copyrighted work is accessible via the Bloomfire Service in a manner that infringes your copyright, please notify Bloomfire’s copyright agent:
b. For your complaint to be valid under the DMCA, you must provide the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
ii. Identification of the copyrighted work that you claim has been infringed;
iii. Identification of the material that is claimed to be infringing and where it is located on the Bloomfire Service;
iv. Information reasonably sufficient to permit Bloomfire to contact you, such as your address, telephone number, and e-mail address;
v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
c. UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
d. Bloomfire has adopted a policy of terminating, in appropriate circumstances, Subscribers and Members who are repeat infringers. Bloomfire may also, at its sole discretion, limit access to the Bloomfire Service and/or terminate the user accounts of any Members who infringe or misappropriate any intellectual property rights of others, whether or not there is any repeat infringement or misappropriation.
12. Third Party Websites, Advertisers, or Services
13. Indemnification; Remedies
c. THE INDEMNIFICATION OBLIGATIONS IN THIS SECTION 13 APPLY EVEN IF DUE TO ANY BLOOMFIRE INDEMNITEE’S NEGLIGENCE OR OTHER FAULT, BREACH OF CONTRACT OR WARRANTY, OR STRICT LIABILITY WITHOUT REGARD TO FAULT.
14. No Warranty
THE BLOOMFIRE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO COMMITMENT TO ANY FUTURE FUNCTIONALITY OR FEATURES. USE OF THE BLOOMFIRE SERVICE IS AT YOUR OWN RISK. THE BLOOMFIRE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BLOOMFIRE, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE BLOOMFIRE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE BLOOMFIRE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE BLOOMFIRE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BLOOMFIRE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. BLOOMFIRE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU OR A THIRD PARTY THROUGH THE BLOOMFIRE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND BLOOMFIRE WILL NOT BE A PARTY TO AND IS NOT RESPONSIBLE IN ANY WAY FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
15. Limitation of Liability
a. ALL MEMBERS:
i. BLOOMFIRE AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER BASED IN TORT, CONTRACT, OR OTHERWISE, INCLUDING LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM OR IN ANY WAY RELATED TO (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE BLOOMFIRE SERVICE; (B) ANY CONDUCT OR CONTENT OF YOU, ANY MEMBER, OR ANY THIRD PARTY ON THE BLOOMFIRE SERVICE, INCLUDING ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER MEMBERS OR THIRD PARTIES; (C) ANY CONTENT OBTAINED FROM THE BLOOMFIRE SERVICE; AND (D) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT BLOOMFIRE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. SUBSCRIBERS: BLOOMFIRE AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER BASED IN TORT, CONTRACT, OR OTHERWISE, INCLUDING LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM OR IN ANY WAY RELATED TO (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE BLOOMFIRE SERVICE; (ii) ANY MEMBER’S ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE BLOOMFIRE SERVICE (iii) ANY CONDUCT OR CONTENT OF YOU, ANY MEMBER, OR ANY THIRD PARTY ON THE BLOOMFIRE SERVICE, INCLUDING ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY MEMBERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE BLOOMFIRE SERVICE; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR, OR ANY OF YOUR MEMBERS’ TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT BLOOMFIRE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
16. Controlling Law Jurisdiction; Deadline to Bring Claims
18. Electronic Communication and Electronic Signatures; Notices
For Bloomfire: Bloomfire Inc. P.O. Box 270388 Littleton, CO 80127 Attn: Chief Financial Officer.
For you: At the address and/or email you provided during registration or as updated by you.
Notices will be deemed to have been received (i) five business days after mailing if given by mail, (ii) upon receipt if hand delivered, and (iii) one business day after sending if given otherwise.
19. Payments; Taxes
20. Export Compliance; Anti-Corruption
a. You acknowledge that the laws and regulations of the United States restrict the export and re-export of certain materials, which may include the Bloomfire Service or materials derived from the Bloomfire Service. Accordingly, Subscribers shall not permit Members to access or use the Bloomfire Service or any User Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
b. Subscriber agrees that Bloomfire may use Subscriber’s name and logo on Bloomfire’s website, sales literature, and advertising materials, and for any other commercial purpose related to Bloomfire’s business.
22. Headings; Construction.