BloomSky Terms of Service <p>Last Updated: July 21<sup>st</sup>, 2015</p>
<p>Welcome to the BloomSky, Inc.
(“<b>BloomSky</b>”) website located at www.bloomsky.com (the “<b>Site</b>”).
Please read these Terms of Service (the “<b>Terms</b>”) carefully because they govern your use of our Site, of all our other website properties, including, without limitation www.weatherlution.com, our indoor and outdoor weather station (the "<b>Weather Station</b>"), our Weather Station accessories (the "<b>Accessories</b>"), our weather widget (the “<b>Widget</b>”) and our weather monitoring and forecasting services accessible via our mobile device application (“<b>App</b>”).
To make these Terms easier to read, the Site, the Weather Station, the Accessories, the Widget and our services and the App are collectively called the “<b>Services</b>.”</p> Click to jump directly to the section: <ul>
<li>Agreement to Terms</li>
<li>Changes to Terms or Services</li>
<li>Who May Use the Services</li>
<li>Content and Content Rights</li>
<li>Content Ownership, Responsibility and Removal</li>
<li>Rights and Terms for App</li>
<li>General Prohibitions and BloomSky’s Enforcement Rights</li>
<li>Links to Third Party Websites or Resources</li>
<li>Limitation of Liability</li>
If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications.
It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms.
If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore.
Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.</p> Who May Use the Services <u>Eligibility</u>
<p>You may use the Services only if you are 18 years or older and capable of forming a binding contract with BloomSky and are not barred from using the Services under applicable law.
You may allow others to use the Services on your behalf and under your supervision for non-commercial purposes (such as for educational purposes), but you remain responsible for ensuring all such users comply with these Terms.</p>
<u>Registration and Your Information</u>
<p>If you want to use certain features of the Services you will have to create an account (“<b>Account</b>”) by entering an email address and selecting a password.
You can do this via the App or through your account with certain third-party social networking services such as Facebook (an “<b>SNS Account</b>”).
If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.</p>
<p>It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date.
If you don’t, we might have to suspend or terminate your Account.
You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account.
You’re responsible for all activities that occur under your Account, whether or not you know about them.</p>
<u>Using the Services</u>
<p>Via the Services, you will be able to: (i) have access to your own personal weather station, which will provide the following information: temperature, barometric pressure, humidity, UV light, rain detection and take pictures of the sky and the surrounding environment (collectively, the “<b>Weather Data</b>”), (ii) connect your Weather Station to the BloomSky network, (iii) if you choose to make your Weather Station publicly available on the BloomSky network, share your Weather Data with other App users and (iv) if you use the Widget, display the Weather Data on a website that you own or operate (“<b>Your Website</b>”).
If you choose to make your Weather Station private, you will still have access to your own Weather Data but it will not be accessible to other App users.</p> Feedback <p>We welcome feedback, comments and suggestions for improvements to the Services (“<b>Feedback</b>”).
You can submit Feedback by emailing us at email@example.com.
and (ii) “<b>User Content</b>” means any Content that Account holders (including you) provide to be made available through the Services.
Content includes without limitation User Content.</p> Content Ownership, Responsibility and Removal <p>BloomSky does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content.
Subject to the foregoing, BloomSky and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights.
You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries.
You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.</p>
<u>Rights in User Content Granted by You</u>
<p>By making any User Content available through the Services and connecting your Weather Station to a Wi-Fi network you hereby grant to BloomSky a perpetual, irrevocable, non-exclusive, transferable, sublicensable, worldwide, fully paid-up, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders and for any other purpose in BloomSky’s sole discretion.</p>
<p>You are solely responsible for all your User Content.
You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms.
You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by BloomSky on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.</p>
<p>You can remove your User Content (other than User Content incorporated in the Weather Data) by emailing us at firstname.lastname@example.org and specifically asking us to delete it.
However, in certain instances, some of your User Content may not be completely removed and copies of your User Content, including User Content incorporated in the Weather Data, may continue to exist on the Services.
We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
We cannot remove User Content from your SNS Account once you have shared such Content with your friends.</p>
<u>Rights in Content Granted by BloomSky</u>
<p>Subject to your compliance with these Terms, BloomSky grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.</p> Rights and Terms for App <u>Rights in App Granted by BloomSky</u>
<p>Subject to your compliance with these Terms, BloomSky grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on a mobile device that you own or control and to run such copy of the App for your own personal non-commercial purposes.
You may not copy the App, except for making a reasonable number of copies for backup or archival purposes.
Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App.
(ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party.
(iii) reverse engineer, decompile or disassemble the App.
or (iv) make the functionality of the App available to multiple users through any means.
BloomSky reserves all rights in and to the App not expressly granted to you under these Terms.</p>
<u>Additional Terms for App Store Apps</u>
<p>If you accessed or downloaded the App from the Apple Store, then you agree to use the App only: (i) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software).
and (ii) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service.</p>
<p>If you accessed or downloaded the App from any app store or distribution platform (like the Apple Store, Google Play or the Amazon Appstore) (each, an “<b>App Provider</b>”), then you acknowledge and agree that:</p>
<li>These Terms are concluded between you and BloomSky, and not with App Provider, and that, as between BloomSky and the App Provider, BloomSky, is solely responsible for the App.</li>
<li>App Provider has no obligation to furnish any maintenance and support services with respect to the App.</li>
<li>In the event of any failure of the App to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App.
Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of an App to conform to any warranty will be the sole responsibility of BloomSky.</li>
<li>App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims.
(ii) any claim that the App fails to conform to any applicable legal or regulatory requirement.
and (iii) claims arising under consumer protection or similar legislation.</li>
<li>In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, BloomSky will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.</li>
<li>App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.</li>
<li>You must also comply with all applicable third-party terms of service when using the App.</li>
<li>You agree to comply with all U.S.
and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S.
Government embargo, or that has been designated by the U.S.
Government as a “terrorist supporting” country.
and (ii) you are not listed on any U.S.
Government list of prohibited or restricted parties.</li>
</ul> General Prohibitions and BloomSky’s Enforcement Rights <p>You agree not to do any of the following:</p>
<li>Use functionalities of the Weather Station or Accessories for purposes other than to collect, analyze and share Weather Data as specifically permitted under these Terms, or in a manner contrary to the instructions in the user manual accompanying the Weather Station or Accessories;</li>
<li>Use the Weather Station or Accessories to infringe, misappropriate or violate a third party’s rights of publicity or privacy, by for example, recording or taking pictures of such third party with the Weather Station without such third party’s consent;</li>
<li>Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy.
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
(iii) is fraudulent, false, misleading or deceptive.
(iv) is defamatory, obscene, pornographic, vulgar or offensive.
(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group.
(vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity.
or (vii) promotes illegal or harmful activities or substances.</li>
<li>Use, display, mirror or frame the Services or any individual element within the Services, BloomSky’s name, any BloomSky trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without BloomSky’s express written consent;</li>
<li>Access, tamper with, or use non-public areas of the Services, BloomSky’s computer systems, or the technical delivery systems of BloomSky’s providers;</li>
<li>Attempt to probe, scan or test the vulnerability of any BloomSky system or network or breach any security or authentication measures;</li>
<li>Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by BloomSky or any of BloomSky’s providers or any other third party (including another user) to protect the Services or Content;</li>
<li>Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by BloomSky or other generally available third-party web browsers;</li>
<li>Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;</li>
<li>Use any meta tags or other hidden text or metadata utilizing a BloomSky trademark, logo URL or product name without BloomSky’s express written consent;</li>
<li>Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;</li>
<li>Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;</li>
<li>Attempt to disassemble or reverse engineer the Weather Station or its Accessories;</li>
<li>Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;</li>
<li>Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;</li>
<li>Impersonate or misrepresent your affiliation with any person or entity;</li>
<li>Violate any applicable law or regulation, including any state, local or federal laws relating to real estate.
<li>Encourage or enable any other individual to do any of the foregoing.</li>
<p>Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements.
We reserve the right, but are not obligated, to remove or disable access to the Services or any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms.
We have the right to investigate violations of these Terms or conduct that affects the Services.
We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.</p> DMCA/Copyright Policy <p>BloomSky respects copyright law and expects its users to do the same.
It is BloomSky’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
Please see BloomSky’s Copyright and IP Policy located at www.bloomsky.com/legal/copyright for further information.</p> Links to Third Party Websites or Resources <p>The Services may contain links to third-party websites or resources, including to National Weather Service websites or data feeds.
We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites.
You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.</p> Termination <p>We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you.
You may cancel your Account at any time by sending an email to us at email@example.com.
Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.</p> Warranty Disclaimers <p>THE SERVICES (EXCEPT FOR THE WEATHER STATION DEVICE AND ACCESSORIES), THE APP AND THE CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND.
WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, RELATING TO THE SERVICES, THE APP, AND THE CONTENT.
We make no warranty that the Services and the App will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.</p>
<p>For warranty information regarding the Weather Station and the Accessories, please refer to our Warranty Policy located at www.bloomsky.com/legal/warranty.</p> Indemnity <p>You will indemnify and hold harmless BloomSky and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.</p> Limitation of Liability <p>NEITHER BLOOMSKY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLOOMSKY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.</p>
<p>IN NO EVENT WILL BLOOMSKY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE GREATER OF THE AMOUNT YOU HAVE PAID TO BLOOMSKY FOR USE OF THE SERVICES OR content OR FIFTY DOLLARS ($50).</p> Dispute Resolution <u>Governing Law</u>
<p>These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.</p>
<u>Agreement to Arbitrate</u>
<p>You and BloomSky agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “<b>Disputes</b>”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “<b>IP Protection Action</b>”).
The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
<b>You acknowledge and agree that you and BloomSky are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding</b>.
Further, unless both you and BloomSky otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding.
If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.
Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.</p>
<p>The arbitration will be administered by the American Arbitration Association (“<b>AAA</b>”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “<b>AAA Rules</b>”) then in effect, except as modified by this “Dispute Resolution” section.
(The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.</p>
<p>A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules.
(The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators.
If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.</p>
<u>Arbitration Location and Procedure</u>
<p>Unless you and BloomSky otherwise agree, the arbitration will be conducted in the county where you reside.
If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and BloomSky submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary.
If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules.
Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.</p>
<p>The arbitrator will render an award within the time frame specified in the AAA Rules.
The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award.
Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable.
The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
BloomSky will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.</p>
<p>Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
However, if your claim for damages does not exceed $75,000, BloomSky will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).</p>
<p>Notwithstanding the provisions of the “Modification” section above, if BloomSky changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of BloomSky’s email to you notifying you of such change.
By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and BloomSky in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).</p> General Terms <p>These Terms constitute the entire and exclusive understanding and agreement between BloomSky and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between BloomSky and you regarding the Services and Content.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.</p>
<p>You may not assign or transfer these Terms, by operation of law or otherwise, without BloomSky’s prior written consent.
Any attempt by you to assign or transfer these Terms, without such consent, will be null.
BloomSky may freely assign or transfer these Terms without restriction.
Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.</p>
<p>Any notices or other communications provided by BloomSky under these Terms, including those regarding modifications to these Terms, will be given: (i) via email.
or (ii) by posting to the Services.
For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.</p>
<p>BloomSky’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision.
The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of BloomSky.
Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.</p> Contact Information <p>If you have any questions about these Terms or the Services, please contact BloomSky at email@example.com or via mail at BloomSky, Inc., c/o BloomSky, 1600 Seaport Blvd, Suite 550, Redwood City, California 94063.</p>