General Uses and Restrictions
By accessing and using the Lotus Sites, you (the “User”) agree to be bound and to abide by the Terms. Lotus permits User to use and access the Lotus Sites for lawful purposes only, and only in a manner consistent with the Terms. User’s agreement to the Terms is a condition of User’s being granted access to and use of the Lotus Sites. If User does not agree with the Terms, User may not access the Lotus Sites and must exit the Lotus Sites immediately. The Terms apply to all visits and use of the Lotus Sites, as well as to the content, information, recommendations or services provided or transmitted on or through the Lotus Sites. By using and accessing the Lotus Sites, User represents that User is at least 18 years of age, has the authority to enter these Terms on User’s own behalf and on behalf of the organization or entity on whose behalf User are using or accessing the Lotus Sites, and all information provided by User, including, but not limited to User’s identity, contact information, experience, qualifications, available positions, and facility details, is accurate and current. User shall be responsible for any violation by User, User’s agents, or User’s employees of the Terms.
Restricted Sites; Registered Users
Lotus has restricted access to certain portions of the Lotus Sites, including its Lotus Connect portal found at Lotusconnect.com or other sites powered or operated by Lotus Connect (collectively the “Restricted Sites”), to users with legitimate Lotus-related or Affiliates-related business reasons for using such Restricted Sites who have registered with Lotus or to whom Lotus has otherwise provided an account, log-in name or password (the “Registered Users”). User agrees that the entirety of the Restricted Sites, including, but not limited to their design, source code, databases, content, and data or materials stored on, generated by, created using, or transmitted through them shall be considered Confidential Information, as defined below. User agrees that User’s use of and access to the Restricted Sites shall be limited only to the extent such access and use directly relates to or is necessary for an existing or prospective business relationship or agreement between User and Lotus or its Affiliates (the “Permitted Uses”).
User agrees any log-in name or password issued to User by Lotus is Confidential Information, as defined below. User agrees not to use another Registered User’s log-in name and password nor to allow any other person, other than User’s employees or agents, to use the log-in name or password issued to User. User is solely responsible for all activity conducted using User’s log-in name or password. User will immediately notify Lotus if User becomes aware of any loss or theft of User’s log-in name or password or any unauthorized use of User’s log-in name and password. Lotus and the Affiliates are not liable for any loss or damage arising from User’s failure to comply with these obligations. Lotus reserves the right to delete or change a log-in name or password at any time and for any reason. User shall be responsible for notifying Lotus if User’s relationship with any employee or agent who had access to the Restricted Sites is severed so passwords may be updated, or accounts disabled as appropriate in Lotus’s sole discretion.
When accessing or using the Restricted Sites, you may be able to upload, download, receive, transmit, view, create, enter, access, post, share, display, or otherwise use or access information, documents, or other material that is confidential in nature (collectively “Confidential Information”). Confidential Information includes, but is not limited to: (i) marketing, job orders, personal identifying information, and other information relating to Lotus’s or the Affiliates’ business, customers, agents, employees, or subcontractors or (ii) private or sensitive information relating to healthcare professionals and other workers provided by Lotus, its affiliates, agents, or subcontractors, such as personnel, medical, financial, credentialing, or other compliance documentation or records. User agrees to only use Confidential Information for lawful, Permitted Uses or as otherwise permitted by law. User agrees to limit access to Confidential Information to only those employees or agents of Users who reasonably require access to such information for the Permitted Uses. If User provides any Confidential Information to User’s employees or agents, User shall require all such employees or agents abide by these Terms as well as any applicable laws or agreements relating such information. User shall take all necessary precautions to protect the confidential nature of the Confidential Information, including, without limitation, all precautions User use with respect to User’s own confidential information.
In the event User or any of User’s representatives are requested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or otherwise) to disclose any of the Confidential Information, User will notify Lotus promptly in writing so that Lotus or the Affiliates may seek a protective order or other appropriate remedy or, in Lotus or the Affiliates’ sole discretion, waive compliance with the confidentiality terms. User agrees not to oppose any action by Lotus or the Affiliates to obtain a protective order or other appropriate remedy. If no protective order or other remedy is obtained, or Lotus or the Affiliates waives compliance with the terms of this Agreement, User agrees to furnish only that portion of the Confidential Information, which User is advised is legally required.
If User discovers or is notified of a breach or potential breach of security with respect to any Confidential Information provided or made available by Lotus or the Affiliates, User shall immediately: (i) notify Lotus of such breach or such potential breach as the address specified below, (ii) immediately investigate such breach or such potential breach and inform Lotus of the results of such investigation, and (iii) assist Lotus as reasonably necessary to enforce Lotus or the Affiliates’ rights and to enable Lotus or the Affiliates to comply with any state or federal law requiring the provision of notice of any security breach with respect to the breach.
Notwithstanding any other provision of this Agreement, Confidential Information shall not include any information, data, material, document, patent or idea, which: (i) is within the public domain prior to the time of disclosure or thereafter becomes within the public domain other than as a result of disclosure by User or User’s representatives in violation of this Agreement; (ii) was, on or before the date of disclosure in User’s possession, as shown by User, unless it was acquired by User from a third party who was under an obligation of confidentiality to Lotus or the Affiliates; (iii) is acquired by User from a third party not under an obligation of confidentiality to Lotus or the Affiliates; or (iv) was independently developed by the User without the use of Confidential Information or other breach of these Terms.
Lotus’s Retention of Proprietary Rights
Lotus hereby grants User with the limited and revocable license to access and use the Lotus Sites in accordance with these Terms. User expressly acknowledges and agrees that Lotus transfers no ownership, intellectual property interest, or title in or to the Lotus Sites, the Confidential Information, or any information or data contained therein to User or anyone else. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Lotus Sites, unless otherwise indicated, are owned, controlled, or licensed by Lotus. User may not copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the Lotus Sites, Lotus’s name, Lotus’s logo, Lotus’s marks, or any other data or information provided on or through the Lotus Sites in any manner or use the Lotus Sites in any manner not expressly permitted by the Terms.
The Lotus Sites are Copyright © 2018 Lotus Workforce, LLC. All rights reserved. User’s unauthorized use of the Lotus Sites, Confidential Information, Lotus logos, names, or marks, or any other information or data contained therein may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes.
Compliance with Applicable Laws
User agrees to abide by all applicable local, state, national, and international laws and regulations with respect to User’s use of the Lotus Sites or any Confidential or other information obtained using the Lotus Sites. The Terms are also subject to any applicable export laws, orders, restrictions, or regulations. User shall not export the Lotus Sites or access or use thereto without complying with such laws, orders, restrictions, or regulations
Prohibited Uses; User’s Transmissions
User may not use the Lotus Sites to send, upload, share, email, post, publish, edit, modify, or otherwise transmit material or information, or use information obtained through the Lotus Sites, in any manner that: (i) violates any applicable law or regulations; (ii) is false or misleading; (iii) is defamatory, offensive, obscene, harassing, or discriminatory, including on any basis protected by applicable federal, state or local law; (iv) violates or infringes on the intellectual property or privacy rights of any other person, including but not limited to rights arising from copyrights, trademarks, patents, or a person’s likeness; (v) constitutes unsolicited marketing efforts, including “junk email” “spam” or chain letters’; (vi) interferes with or disrupts the performance of the Lotus Sites or servers or systems used to host or operate the Lotus Sites, or of Lotus, or of other users of the Lotus Sites; or (vii) attempts to circumvent or misuse the user authentication or security measures of the Lotus Sites.
By sending, uploading, sharing, emailing, posting, publishing, editing, modifying, or otherwise transmitting content to the Lotus Sites or submitting any content to or through the Lotus Sites or to Lotus or the Affiliates relating to the Lotus Sites (including, documentation, feedback), User automatically grants (or warrant that the owner of such rights has expressly granted), Lotus and the Affiliates a worldwide, perpetual, royalty-free, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, transmit and distribute such content on in any form, medium, or technology now known or later developed, including, but not limited to, the Lotus Sites. In addition, User warrants that all so-called moral rights in the content have been waived. Lotus and its Affiliates assume no responsibility for the deletion of or failure to store any posting, transmission, documents or information stored or submitted on the Lotus Sites. Notwithstanding the foregoing, this section is not intended to and does not supersede any applicable laws or separate written agreements between User and Lotus that are signed by the CEO of Lotus, to the extent such laws or agreements restrict or govern Lotus’s or the Affiliates’ use of confidential information provided by User as part of a business transaction.
Lotus is not responsible for screening, policing, editing, or monitoring User’s or another Registered User’s transmissions, submissions, and postings. Accordingly, Lotus encourages its Registered Users to use reasonable discretion and caution in submitting or reviewing any transmission or posting. Moreover, Lotus does not make any representation with respect to, nor does it endorse the accuracy, completeness, timeliness, or reliability of any advice, opinion, statement, or other material displayed, uploaded, or distributed by User or any other Registered User. Nevertheless, Lotus reserves the right to delete or take other action with respect to transmissions or postings (or parts thereof) that Lotus believes in good faith violate the Terms and/or are, or are potentially, unlawful or harmful to Lotus or its products, services, and goodwill.
Alleged Copyright Violations
It is the policy of Lotus to take appropriate actions under the Digital Millennium Copyright Act under U.S. Copyright Law and other applicable intellectual property laws. If User becomes aware of transmissions or postings that violate these rules or believe User’s copyrighted work has been inappropriately use or made accessible through the Lotus Sites, please notify Lotus in writing, as provided below3.
Links to Other Sites
Lotus may provide links, in its sole discretion, to other sites on the World Wide Web for User’s convenience in locating or accessing related information, products, and services. These sites have not necessarily been reviewed by Lotus and are maintained by third parties over which Lotus exercises no control. Accordingly, Lotus expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party Web sites. Moreover, these links do not imply an endorsement with respect to any third party or any Web site or the products or services provided by any third party.
THE LOTUS SITES AND ALL INFORMATION, SERVICES, PROGRAMS, SOFTWARE, AND MATERIALS AVAILABLE ON OR THROUGH THE LOTUS SITES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. LOTUS MAY MAKE MODIFICATIONS AND/OR CHANGES IN THE LOTUS SITES OR IN THE INFORMATION, SERVICES, PROGRAMS, SOFTWARE, AND MATERIALS AVAILABLE ON THE LOTUS SITES AT ANY TIME AND FOR ANY REASON. USER ASSUMES THE SOLE RISK OF MAKING USE AND/OR RELYING ON THE INFORMATION, SERVICES, PROGRAMS, AND MATERIALS AVAILABLE ON THE LOTUS SITES. LOTUS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE RESULTS THAT CAN BE ACHIEVED FROM OR THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE INFORMATION, SERVICES, PROGRAMS, AND MATERIALS AVAILABLE ON THE LOTUS SITES FOR ANY PURPOSE. LOTUS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY INCLUDING, BUT NOT LIMITED ANY IMPLIED WARRANTIES UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. LOTUS ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THE LOTUS SITES WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY FILES OR INFORMATION THAT USER DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. USER UNDERSTAND AND ACKNOWLEDGE THAT USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE LOTUS SITES OR ANY INFORMATION THEREIN IS TO CEASE USE OF THE LOTUS SITES.
MOREOVER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LOTUS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OF OR ACESS TO THE LOTUS SITES OR WITH THE DELAY OR INABILITY TO USE THE LOTUS SITES WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF LOTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF LOTUS FOR ANY REASON WHATSOEVER RELATED TO USER’S USE THE USE OF OR ACESS TO THE LOTUS SITES AND ALL INFORMATION AND SERVICES THEREIN, OR WITH THE DELAY OR INABILITY TO USE THE LOTUS SITES, INFORMATION OR SERVICES THEREIN SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY/TO USER TO/FROM LOTUS IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE DURING THE THREE MONTHS PRIOR TO THE ACT GIVING RISE TO THE DISPUTE
User agrees to defend, indemnify, and hold harmless Lotus, its affiliates, officers, directors, employees, agents, licensors, clients, subcontractors, and harmless from and against any and all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to or arising from: (i) User’s use of the Lotus Sites, (ii) User’s violation of the Terms; (iii) User’s violation of any third party rights relating to or arising out of User’s use of the Lotus Sites, or (iv) User’s violation of any law or regulation relating to or arising out of User’s use or access to the Lotus Site.
Term and Termination
The Terms shall take effect immediately upon: User’s access to or use of the Lotus Sites after the Terms are posted, or if User has executed a separate agreement incorporating or referencing these Terms, the effective date of such agreement. The Lotus Sites are provided as a convenience to User to assist Lotus and the Affiliates in conducting their business. Lotus reserves the right to modify, change, or disable the Lotus Sites or User’s use of or access to the Lotus sites, at any time with or without notice. Lotus and the Affiliates shall not be liable for damages in connection with such terminations, disabling, modifications, or changes.
User may terminate the Terms at any time by ceasing to use the Lotus Sites, except that if Users are a Registered User, they must notify Lotus of Registered User’s desire to terminate a Registered User’s account as required by the Notices section of this Agreement. Upon termination, User must destroy all copies of Confidential Information in User’s possession, custody or control, except that User may be permitted to obtain a copy of certain Confidential Information to the extent permitted in writing by Lotus or where User are legally required to retain such records.
All notices, requests, demands or other communications to Lotus required under this Agreement shall be made in writing and shall be deemed to have been duly given on the second day after mailing if mailed to the address below by certified mail, postage prepaid or via overnight carrier with delivery confirmation, and properly addressed to:
Lotus Workforces, LLC
Attn: Legal Department
5930 Cornerstone Court West, Suite 300
San Diego, CA 92121
Lotus may provide notice to User by posting on the Lotus Sites or otherwise contacting User at any last known email or mailing address.
1. The Terms and any claims arising out of or relating to the Terms or User’s use of the Lotus Sites shall be construed in accordance with and subject to the laws of the State of California, without reference to its conflict of law principles. User hereby consents to the exclusive personal jurisdiction in any state or federal court or arbitral forum located in San Diego, California. If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions shall remain valid and be enforced and construed as if such invalid provision were never a part of this Agreement. The parties hereto agree that this Agreement will be governed by and construed in accordance with the laws of the State of California without reference to its choice of law rules and as if wholly performed within the State of California. Unless otherwise provided herein, any dispute, controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration before the office of Judicial Arbitration and Mediation Services (“JAMS”) located in San Diego, California, as the exclusive remedy.
2. User acknowledges that any breach, threatened or actual, of the Terms will cause irreparable injury to Lotus, such injury would not be quantifiable in monetary damages, and Lotus would not have an adequate remedy at law. User therefore agrees that Lotus shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of User’s obligations under any provision of the Terms. Accordingly, User hereby waives any requirement that Lotus post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Lotus to enforce any provision of the Terms.
3. User may not assign User’s rights or obligations to any other person or entity without Lotus’s prior written consent.
4. No waiver, delay or failure by Lotus with respect to any right or provision under the Terms shall be deemed a waiver of any other provision or constitute a continuing waiver.
5. If any provision (or part thereof) contained in the Terms is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language.
6. No joint venture, partnership, employment, or agency relationship exists between User and Lotus as result of the Terms or User’s utilization of the Lotus Sites.
7. The heading the Terms are for convenience of reference only and are not to be considered in construing this Agreement.
8. The Terms represent the entire agreement between User and Lotus with respect to use of the Lotus Sites, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between User and Lotus that govern User’s use of or access to the Lotus Sites. No amendments to this Agreement may be made except by a written agreement signed by both the parties. However, in the event User is or was an employee of Lotus, the terms of any employment policies or written agreements signed with the requisite authority from Lotus’s CEO relating to User’s employment with Lotus (including any arbitration agreements) shall control to the extent deemed inconsistent with the Terms.