Terms & Conditions
Last revised on: June 19, 2021
The Site and all related material comprising our Services is a copyrighted work belonging to goLOTUS, Inc. (“Company”, “ us”, “our”, and “we”). Certain features of the Site and Services may be subject to additional guidelines, terms, or rules, which will be posted in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
PLEASE REVIEW SECTION 16.2 CLOSELY, AS IT CONTAINS the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute .
1.1 Account Creation. In order to use certain features of the Site and Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your Account in accordance with Section 8.4. The deletion, suspension, or termination of your account will result in a prohibition on the use of our Services.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Access to the Site
2.1 License. Subject to these Terms , Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and Services solely for your own personal, noncommercial use.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services, whether in whole or in part, or any content displayed on therein; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive website, product, or service; (d) use the Site or Services in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act and any spam laws (for example, CAN SPAN); and (e) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. All copyright and other proprietary notices on the Site or Services (or on any content displayed on the Site or Services) must be retained on all copies thereof.
2.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or Services or any part thereof.
2.6 Copyrights/Patents/Trademarks/Trade Secretes. Copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
2.7 “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in the user’s profile or postings). You are solely responsible for your User Content and remains the sole property of you. You may grant the right of shared access to portions your content another user only if it does not violate HIPAA regulations. You grant goLOTUS a non-exclusive, royalty -free license to modify, store, transmit and otherwise use your information for purposes of goLOTUS performing under this agreement and providing the Services. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 31). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.
2.8 “Customer Information” means all data, information, images and files entered or uploaded by Customer to the Site or Services, which shall remain the sole property of Customer, as between goLOTUS and Customer (“Customer Information”), subject to the other terms of this Agreement.
2.9 Sharing of Health Information . goLOTUS only shares your Personally Identifiable Information or Protected Health Information when required to complete your transaction or to facilitate a consensual interaction between you and a provider through the Services. We do not otherwise share Personally Identifiable Information or Protected Health Information with any third parties [other than our service providers who are under strict confidentiality obligations]. We may aggregate certain information to develop statistics related to the use of the Services and, in doing so, we might combine information that we have about you with information we obtain from business partners or other companies. When we publish statistics based on aggregated information, those statistics will not contain any Personally Identifiable Information about you.
2.10 Customer grants goLOTUS a non-exclusive, royalty-free license to modify, store, transmit and otherwise use the Customer Information for purposes of goLOTUS performing under this Terms Agreement. Notwithstanding the foregoing, Customer expressly agrees that if Customer’s access to the Service is suspended for non-payment of fees in accordance with Section 4(d), goLOTUS will have no obligation to provide Customer Information to Customer until Customer remedies such non-payment as provided in this Agreement. Go Lotus will have no obligation to continue providing access to any Customer Information or User Content stored by goLOTUS and available through use of the Services until Customer remedies such non-payment as provided in this Agreement .
2.11 Accuracy of Information Provided by Customer. Customer represents and warrants to goLOTUS that all Customer Information, User Content and other material provided under Customer’s account, by Customer or on its behalf, is true, correct and accurate. If Customer learns that any Customer Information or User Content provided to goLOTUS as part of the Services is not true, correct or accurate, Customer must immediately notify goLOTUS by phone and in writing of this fact, and shall provide the true, correct and accurate information to goLOTUS. goLOTUS relies on Customer’s representations regarding the truth, accuracy and compliance with laws of Customer Information and Content. CUSTOMER SPECIFICALLY AGREES THAT goLOTUS SHALLNOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF GO LOTUS.
2.12 Meaningful Use. Customer intending to attest for Meaningful Use agree to follow the processes and procedures recommended in aggregate Meaningful Use training such that goLOTUS tracking and reports function appropriately.
2.13 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content and Customer Information, and to grant sublicenses of the foregoing rights, solely for the purposes of providing this Site and/or Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content or Customer Information.
3.1 The following terms constitute our “Acceptable Use Policy”
(a) You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortuous, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable;(iii)you will not submit any Content that is untrue, defamatory, harmful to any person, or violates HIPAA Privacy Rules, State or Federal laws on patient privacy, and All patient testimonials submitted by Customer are accurate and are submitted with the patient's consent, (iv) that is harmful to minors in any way; or (v) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
3.2 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person . Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 15 , and/or reporting you to law enforcement authorities.
3.3 Feedback . If you provide Company with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
3.4 De-identified Data. Company may use protected health information to provide data aggregation services relating to the health care operations of the covered entity(as that term is defined by45 C.F.R. 164.504) and to create de-identified data in accordance with 45 CFR 164.514(a)-(c) retaining any and all ownership claims related to the de-identified data it creates from protected health information. Company may use, during and after this agreement, all aggregate anonymized information and de-identified data for purposes of enhancing the Services, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.
4. Reminders and SMS Messages.
4.1 You agree that by registering for the Service, including any request forms or use of communications features, constitutes a request for Company to send email, fax, phone call, or SMS reminders about upcoming appointments, special offers, and upcoming events. Company is not responsible for any text messaging or data transmission fees. If Customer provides a cellular phone number and agrees to receive communications from Company, you specifically authorizes Company to send text messages or calls to such number . Customer represents and warrants it has the authority to grant such authorization. You are not required to consent to receive text messages or calls as a condition of using the Service and may opt out of such messages through the Services.
5.1 You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site and/or Services, (b) your violation of any Terms in this agreement, (c) your violation of applicable laws or regulations,(d) your User Content, (e) any unauthorized use, access or distribution of the Service by you, or (f) your violation of any individual's privacy rights related to information submitted under your account, or fraudulent, invalid, duplicated, incomplete, unauthorized, or misleading information submitted under your account or by you. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. Mutual Confidentiality
6.1 Definition of Confidential Information
(a) Confidential Information means all non-public information disclosed by goLOTUS (“Discloser”) to Customer or its employees or contractors (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). goLOTUS's Confidential Information includes without limitation the non-public portions of the Service.
(a) The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors and clients (as the case may be) who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Terms Agreement. The Recipient may disclose Confidential Information (i) to the extent required by law or legal process; (ii) to its legal or financial advisors, provided that such advisors are bound by a duty of confidentiality that includes use and disclosure restrictions; and (iii) as required under applicable securities regulations. Prior to disclosing any Confidential Information, Recipient agrees to provide Discloser five (5) days written notice of its intent to disclose said Confidential Information. In addition, each Party may disclose the terms and conditions of this Agreement on a confidential basis to current and prospective investors, acquirers and lenders and their respective legal and financial advisors in connection with due diligence activities without providing advanced notice.
(a) Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Discloser; was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; is received from a third party without breach of any obligation owed to Discloser; or was independently developed by the Recipient without use or access to the Confidential Information.
7. Third Party Intellectual Property
7.1 Infringement. Customer agrees that it shall not utilize goLOTUS’s Service or Software to infringe on any third party’s intellectual property rights.
7.2 AMA Restrictions. Customer may not use outside the United States, publish, distribute or create any derivate work (including without limitation translation), transfer, sell, lease, license or otherwise make available the AMA Content or Licensed Documentation, or a portion or copy of such content and documentation, except as expressly provided in this Terms Agreement. This sublicense is limited to one (1) user for each active provider associated with Customer’s account. Customer is responsible for seeking additional user licenses directly from the American Medical Association if it requires more than one (1) user license per active provider. CPT is a copyright and a registered trademark, of the American Medical Association.
8. Payment Terms
8.1 Subscriptions . Services are provided on a subscription basis. You agree to pay the applicable fees for the Services in accordance with the applicable fee schedules. Unless otherwise stated in writing, fees for the Services are based on monthly cycles starting at the time you accept the Services. You are required to pay all fees regardless of whether you use the Services during the subscription period. goLOTUS may charge additional fees for setup, special processing, or other add-on features not part of the standard Services, and these fees will be explicitly communicated during the registration process.
8.2 RENEWALS . IN ORDER TO PROVIDE CONTINUOUS SERVICE, goLOTUS AUTOMATICALLY RENEWS ALL PAID SUBSCRIPTIONS FOR THE SERVICES ON THE DATE SUCH SUBSCRIPTIONS EXPIRE. WE ALWAYS COMMUNICATE RENEWAL PERIODS TO YOU IN THE SUBSCRIPTION PLAN PAGE, BEFORE YOU FINALIZE THE PURCHASE OF YOUR SUBSCRIPTION, AND UPON CONFIRMATION OF PURCHASE. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOUR ACCOUNT WILL BE SUBJECT TO THE ABOVE-DESCRIBED AUTOMATIC RENEWALS. IN ALL CASES, IF YOU DO NOT WISH YOUR ACCOUNT TO RENEW AUTOMATICALLY, PLEASE FOLLOW THE DIRECTIONS SET OUT UNDER "CANCELLATION " SECTION.
8.3 Cancellation . Except as otherwise stated in this policy, you may cancel your subscription to any Services at any time during the term of such subscription or any renewal period by accessing the “Account Settings” page and clicking on “Cancel My Subscription” and providing the information requested. In such case, your subscription will terminate at the end of the subscription term for which you have paid, and you will not receive any refund for any unused days of the remaining term.
8.4 Payment. You are responsible for all fees and charges for related services as outlined in your contract with the Company . You are responsible for providing complete and accurate billing and contact information to Company and notify Company of any changes, as well as any changes to your contract that you have agreed to additional charges or fees agreed to and payable. All invoiced fees and charges are due upon receipt.
8.5 Credit Card . You must pay all fees in US Dollars (US$) via credit card upon receipt of any invoice from Company. If the credit card is not valid or the payment is not otherwise made, you must pay the amount owed upon receipt of an invoice. You hereby authorize Company to charge you credit card for all purchased Services and related services, and any renewals.
8.6 Auto-Renewal. Customer shall have thirty (30) days from the date of sign up to cancel Services. Account terms are for 12 months and auto-renew on the 13th month. Custmer may cancel auto-renewal at anytime. Services maybe canceled at anytime, hwoever no refunds will be provided after the first 30 days.
8.7 Suspension of Service for Non Payment. Company may suspend or terminate the Service or both, if you have not paid amounts owed to Company when due. In advance of suspension or termination, Company will make commercially reasonable efforts to send a minimum7-day notice of payment default to you prior to suspension or termination (You are responsible for updating your contact information with Company and notify company of any changes to such information).
8.8 Refund of Credits for Cancellation . goLOTUS will not refund or credit subscriptions for partial monthly use, employee deactivation or organization account cancellation.
8.9 Fee Changes All fees may be changed with 30 days' advance email notice to you. You are responsible for keeping your updated email address on file with Company.
9. Third-Party Links & Ads; Other Users
9.1 Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “ Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
9.2 Other Users. Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
9.3 Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
10.1 THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
10.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. No Medical Advice Provided by goLOTUS
11.1 Company does not provide medical advice, provide medical or diagnostic services, or prescribe medication. Use of the Service is not a substitute for the professional judgment of health care providers in diagnosing and treating patients. You agrees that it is solely responsible for verifying the accuracy of patient information, and for all of its decisions or actions with respect to the medical care, treatment, and well-being of your patients, including without limitation, all of Customer’s acts or omissions. Any use or reliance by you upon the Service will not diminish that responsibility. You assumes all risks associated with your clinical use of the Service for the treatment of patients. Neither goLOTUS nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer, a patient, other person, or tangible property arising from any use of the Services.
12. Compliance with Medical Retention Laws and Patient Records Access
12.1 You are responsible for understanding and complying with all state and federal laws related to retention of medical records, patient access to information and patient authorization to release data. You agree that you will obtain any necessary patient consent prior to using the service (including without limitation the Patient Portal part of the Services) and will apply settings to exclude information from availability in the Patient Portal as necessary to comply with state or federal law.
13. Mutual Compliance with Laws
13.1 Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this agreement .
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE ONE YEAR PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
15.1 Term Subject to this Section, these Terms will remain in full force and effect while you use the Site and Services. We may suspend or terminate your rights to use the Site and Services(including your Account) at any time for any reason at our sole discretion, including for violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site and/or Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through Error! Reference source not found., Section Error and Sections 4 through10.
15.2 Termination for Material Breach Either party may terminate this agreement and the applicable Contract if the other party material breaches any term of the agreement..
15.3 Return of Data. goLOTUS will have no obligation to provide Customer Information or USER Content to Customer upon termination of this Agreement. Notwithstanding the foregoing, goLOTUS may retain Customer Information and User Content for sixty (60) days from such termination in accordance with section d. below. The Customer is solely responsible for exporting all client and employee data prior to the termination of this Agreement (or last billing cycle). Exported data is provided to the Customer in an Excel (.XLS), Microsoft Word (.DOC), or Comma Separated Values File (.CSV) depending on the module. Customer can seek support for data export prior to termination from Go Lotus support staff, subject to any assessable support costs.
15.4 Data Retention Period Post Termination. goLOTUS will retain all data for a minimum of sixty (60) days after the termination of this Agreement as a safeguard in case the Customer requires more information, including those accounts terminated due to non-payment or inactivity. This sixty (60) days is known as the Data Retention Period. Customers will be responsible during this post termination period to make all requests for additional data exports in writing to goLOTUS as account access may be restricted. After the sixty (60) day post termination period expires, goLOTUS may appropriately remove or delete any Customer data that contains Protected Health Information (PHI) and shall not be responsible any damage caused by said removal. It is the Customer’s responsibility to comply with all state and HIPAA regulatory medical records requirements, which may be up to ten (10) years depending on the state.
15.5 Customer Actions upon Termination. Upon termination, Customer must pay any unpaid fees and destroy all Go Lotus property in Customer’s possession. Customer, upon goLOTUS’s request, will confirm in writing within ten (10) days of said request that it has complied with this requirement.
16.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
16.2 Dispute Resolution . Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to:PO Box 642745, Los Angeles, CA 90064 After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
16.3 Export. The site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
16.4 Disclosures.. If you have concerns related to HIPAA compliance you can contract the US Department of Health & Human services at www.hhs.gov/hipaa or call the Office for Civil Rights Headquarters 800-368-1019.
16.5 Copyright/Trademark Information . Copyright © 2018goLOTUS, Inc.. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
17. Other Terms
17.1 Consent to Electronic Notice, Communications and Transactions .
(a) The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. For purposes of messages and notices about the Service (including without limitation, collections and payments issues), goLOTUS may send email notices to the email address associated with your account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), goLOTUS may send notices to the postal address provided by you. You express agrees that notice via email or postal service to the contact information provided by you in the Order shall be sufficient to satisfy any notice requirements found in the Service Agreement. goLOTUS has no liability associated with your failure to maintain accurate contact information within the Service or its failure to review any emails or in Service notices. You will have the ability to enter into agreements, authorizations, consents and applications; make referrals; order lab tests; prescribe medications; or engage in others transactions electronically. YOU AGREE THAT ITS ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE ITS AGREEMENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS, AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. You represent and warrants that you have the authority to take such actions.
(b) For purposes of messages and notices about the Service (including without limitation, collections and payments issues), goLOTUS may send email notices to the email address associated with your account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), goLOTUS may send notices to the postal address provided by you. You express agrees that notice via email or postal service to the contact information provided by you in the Order shall be sufficient to satisfy any notice requirements found in the Service Agreement. goLOTUS has no liability associated with your failure to maintain accurate contact information within the Service or its failure to review any emails or in Service notices. You will have the ability to enter into agreements, authorizations, consents and applications; make referrals; order lab tests; prescribe medications; or engage in others transactions electronically. YOU AGREE THAT ITS ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE ITS AGREEMENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS, AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. You represent and warrants that you have the authority to take such actions.
17.2 Miscellaneous Terms.
17.3 Beta Features
. If you are invited to access any beta features of the Service or you
accesses any beta features of the Service, You acknowledges that:
(a) such features have not been made commercially available by goLOTUS;
(b) such features may not operate properly, be in final form or fully functional;
(c) such features may contain errors, design flaws or other problems;
(d) it may not be possible to make such features fully functional;
(e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss;
(f) such features may change and may not become generally available; and
(g) goLOTUS is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service.
These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data.
In the event that any one (1) or more provisions of the Service Agreement
is held invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions contained in this
Agreement shall not in any way be affected or impaired thereof.
17.5 Survival of Terms. All terms survive termination of the Service Agreement that by their nature survive for a Party to assert its rights and receive the protections of this Terms Agreement. The Convention on Contracts for the International Sale of Goods does not apply.
17.6 Waiver. goLOTUS’s failure or delay in exercising any power or right under the Service Agreement shall not operate as a waiver thereof, nor will any single or partial exercise of any such power or right preclude any other exercise of a right or power. No waiver will be effective against goLOTUS unless in writing and signed by goLOTUS.
17.7 Force Majeure. If goLOTUS is prevented or delayed from timely completing its obligations under this Terms Agreement due to accidents, riots, strikes, epidemics, Acts of God, acts of war or terrorism, or any other condition beyond Go Lotus’s control (each a “Force Majeure Event”), goLOTUS will notify the Customer in writing as soon as practicable following the commencement of such Force Majeure Event and shall be alleviated of its obligations to perform until the Force Majeure Event is alleviated and shall not be breach of the Service Agreement.
19. Copyright Complaints.
goLOTUS respects the intellectual property of others, and we ask our Customers to do the same. goLOTUS may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Customers who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide goLOTUS’s Copyright Agent the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
goLOTUS’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
20. Effect of Headings.
The paragraph and section headings of this Terms Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any paragraph or section of this Terms Agreement and in no way affect this Terms Agreement.