DOWNLOADING ANY INFORMATION AND CONTENT FROM THIS PLATFORM OR THE MOBILE APPLICATION. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS SET FORTH BELOW, DO NOT USE THIS PLATFORM.
1. Eligibility; Acceptance of Terms
By accessing or linking to this Platform, you assume the risk that this Platform and all of the content it contains, or may in the future contain, including, but not limited to, articles, opinions, other text, directories, guides, photographs, illustrations, images, video and audio clips and advertising copy, as well as the trademarks, logos, domain names, trade names, service marks and any and all copyrightable material (including source and object code) and/or any other form of intellectual property (collectively, the “Content”) on this Platform may be incomplete, inaccurate, out of date, or may not meet your needs and requirements. Further, we may add,
As a User of the Platform and/or App, you agree not to use the Content for any unlawful purposes and not to violate TMS’s rights or the rights of others. TMS reserves the right to object or otherwise take action against any such use. The Platform is to be used solely for your non- exclusive, non-assignable, non-transferable and limited use and for no other purposes.
3. Trademarks and Copyrights
24.1 Any notices shall be sent to TMS at the following:
NAME: Lotus TMS, LLC
ADDRESS: 12022 Blue Valley Pkwy Ste 530
CITY, STATE ZIP CODE Overland Park, KS 66213
24.1 All notices, requests, demands and other communications hereunder must be in
writing and will be deemed given:
(a) if delivered personally, on the date given; or
(b) if delivered by a courier or express delivery service, on the date of delivery; or
(c) if by certified or registered mail, postage prepaid, return receipt requested, three (3) days after mailing to the applicable party.
In addition, the same will be deemed given:
(d) if sent by facsimile transmission, on the date transmitted if the transmission is confirmed as sent by the transmitting machine and a copy is also sent via another manner specified in (a), (b), or (c) above; or
(e) if sent by email, on the date transmitted if the transmission is confirmed as sent or as received by the recipient’s computer or device and a copy is also
sent via another manner specified in (a), (b) or (c) above.
5. Rules of Conduct
Your use of the Platform is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You shall not use, allow, or enable others to use the Platform, or knowingly condone use of this Platform by others, in any manner that is, attempts to, or is likely to: be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing,
intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else, affect us adversely or reflect negatively on us, the Platform, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Platform, or from advertising, linking or becoming a supplier to us in connection with the Platform, send or result in the transmission of junk email, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”, violate TMS’s rights or the rights of others, be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages, transmit,
distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful, disruptive or destructive programs or other material or information, forge any TCP/IP packet header or part of the header information in any email or Posting (as hereinafter defined) for any reason, violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order or any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy or any other rights of ours or of any other person, firm or enterprise; gain unauthorized access to and/or use the Platform, other users’ names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Platform or to use the Platform in any manner which violates or is inconsistent with the terms and conditions of this Agreement, modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Platform or the rights of use and enjoyment of the Platform by any other person, firm or enterprise, or collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of the Platform, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so.
Certain areas of the Platform may require registration or may otherwise ask you to provide information to participate in certain features or access certain Content. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Content or participate in certain features of the Platform. When you provide information to the Platform, you agree to provide only true, accurate, current and complete information on all registration pages. If you register with the Platform, you agree to accept responsibility for all activities that occur under your account or password, if any, and agree you will not sell, transfer or assign your membership or any membership rights. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access the password protected portion of the Platform using your name in whole or in part. TMS reserves the right to terminate membership and/or deny access to the Platform to any User in its sole discretion.
8. Collection and Use of Data
THE PLATFORM, THE CONTENT, AND ALL ASSOCIATED WITH THE PLATFORM ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS PLATFORM, THE CONTENT, AND THE EMAILS MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. TMS AND AFFILIATES MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY FACTS, ADVICE, OPINIONS, VIEWS, STATEMENTS, RECOMMENDATIONS OR OTHER INFORMATION DISPLAYED ON OR DISTRIBUTED THROUGH THE PLATFORM, THE CONTENT, AND/OR THE EMAILS. TMS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SUITABILITY, UNCTIONALITY, AVAILABILITY OR OPERATION OF THIS PLATFORM OR THE CONTENT. THIS PLATFORM MAY BE TEMPORARILY UNAVAILABLE DUE TO MAINTENANCE OR MALFUNCTION OF COMPUTER EQUIPMENT. TMS DOES NOT WARRANT THAT THE CONTENT OR THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE PLATFORM OR THE CONTENT WILL BE CORRECTED, OR THAT THE PLATFORM, THE SERVERS THAT MAKE THE PLATFORM AND/OR THE CONTENT AVAILABLE AND ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
10. Limitations of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL TMS OR AFFILIATES BE LIABLE TO YOU FOR DAMAGES OF ANY KIND
WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM OR IN CONNECTION WITH THIS PLATFORM, THE CONTENT, THE EMAILS, OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE PLATFORM, THE CONTENT, OR THE EMAILS, EVEN IF TMS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO, THE PLATFORM, THE CONTENT, OR THE EMAILS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL TMS OR AFFILIATES BE LIABLE FOR ANY DAMAGES TO ANY COMPUTER EQUIPMENT OR PROPERTY IN CONNECTION WITH ANY SECURITY BREACH, VIRUS, BUG, TAMPERING, UNAUTHORIZED INTERVENTION, FRAUD, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. IN NO EVENT WILL TMS OR AFFILIATES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY.
11. Intellectual Property
limited to copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights related to the Platform.
12. Location/Governing Law
TMS operates the Platform exclusively in the United States. Information contained on the Platform may not be appropriate or available for use in other locations, and access to this Platform from territories where the content of the Platform may be illegal is prohibited. If you access the Platform from other locations, you do so on your own initiative and you are solely responsible for compliance with applicable local laws. You may not use the Platform or export
otherwise applicable. In the event of a dispute, any adjudication of the same shall have venue within the Western District of Missouri. The Parties agree to arbitrate all disputes arising out of this Agreement, except for those disputes whose contested monetary value being less than the maximum jurisdiction of Missouri small claims courts, pursuant to the rules of the American Arbitration Association Commercial Division. The Parties agree that the decision of the Arbitrator or Arbitration Panel shall be binding upon the Parties and that the prevailing Party shall be entitled to costs from the non-prevailing Party including, but not limited to, reasonable attorney fees, interest, and filing fees. In the event of a dispute with a contested monetary value of $4,999 or less,