Luminello Terms of Service
Section 1 – Binding Agreement
Important Information Regarding your use of this Site
These terms of service, including any additional guidelines and policies referenced herein, posted on the Site (defined below) and/or available by hyperlink and any future modifications hereof and thereof (collectively, the “terms”), comprise a binding legal agreement between you and Luminello, Inc. (“Company”) and you agree that these terms apply to you when you view, access, signup for an account or otherwise use this Site with a home page located at www.luminello.com (the “Site”). This Site is owned and operated by the Company. Company hereby grants you a nonexclusive, nontransferable, limited right to access, use and display the Site and the materials provided herein, provided that you comply fully with these terms. Please review these terms carefully.
Consent and Authorization to these Terms
By viewing, accessing, signing up for a Luminello, Inc. account, or by otherwise using this Site or the services provided therein you hereby agree to be bound by these terms and you acknowledge that you have read and understood them. To sign up for a Luminello, Inc. account simply click on the “create account” button. If these terms are considered an offer, acceptance is expressly limited to these terms.
The words “we”, “us” and “our” refer to the Company. By visiting, accessing, signing up for an account or using our Site and/or purchasing a subscription from us, you engage in our “Service”. The words you, your, user or customer and any plural versions thereof refer to the individual or entity (including without limitation merchants, patients, clients, clinicians, therapists, medical or other professionals and/ or contributors of content) visiting, accessing, viewing or otherwise using this Site or the Services provided herein.
No Doctor/Therapist/Provider-Client/Patient Relationship
Company provides this Site for general informational and services purposes only. You acknowledge and agree that Company is not providing therapy or any other medical or clinical or professional services of any kind whatsoever. As such, while some of the information on the Site may relate to therapy, clinical or medical topics, the information on this Site does not constitute therapy, medical, clinical or other professional advice or guidance and no professional, medical, clinical or other relationship is created between you and Company when you access, view or otherwise use the Site or Services provider by Luminello or its third-party partners. Furthermore, you agree that creating an account and using the Services does not and never will create a client/patient relationship or any other privileged or confidential client relationship between you and the Company. Be advised that sending email or other correspondence to Company or any of its officers, agents, employees, consultants, or contractors will not create such a relationship. Licensed clinicians are solely responsible for the care given to their clients/patients, and must use their professional judgment in the provision of care; Luminello expressly disclaims any liability, cause of action, or claim related to any and all care rendered in the course of treatment; this includes relying on the completeness or lack thereof of information regarding prescription benefit or medication history. In addition, please be advised that any email or other correspondence you send to Company will be handled in a manner consistent with these terms and may not be privileged or confidential and may be disclosed to other persons. PLEASE DO NOT SEND TO THE COMPANY ANY CONFIDENTIAL INFORMATION OR ANY INFORMATION THAT YOU WOULD EXPECT TO BE MAINTAINED IN CONFIDENCE. Do not consider the Site to be a substitute for obtaining professional, clinical or medical advice from a qualified licensed professional in your state. If you communicate with Company by email, or any other electronic manner, you should note that the security of the Internet is uncertain. By sending electronic messages, you accept the risks of such uncertainty and possible lack of confidentiality.
New Site Features and Modifications to these Terms
Any new features or tools which are added to the Site shall also be subject to these terms. Company may, in its sole discretion and without prior notice, (a) revise these terms; (b) modify the Site (as further described below); and (c) discontinue the Site (as further described below) at any time. Company shall post any revision to these terms to the Site, and the revision shall be effective immediately upon such posting. You agree to review these terms and other online policies posted on the Site periodically to be aware of any revisions. It is your responsibility to check the Site periodically for changes. You agree that your continued use of or access to the Site or the Services following the posting of any changes constitutes acceptance of those changes.
Right to Modify, Suspend or Discontinue Services
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
You agree that from time to time we may remove the Service for indefinite periods of time or cancel the service at any time, without notice to you.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these terms.
Section 2 – Use of This Website
Purpose of Site and Use
This Site provides web-based communication between patients/clients and prospective providers, between patients/clients and a provider’s office, and a record for providers to keep about care they have provided, will provide or are providing. Certain features are available only if the provider’s office uses the Site and authorizes the use of the specific feature. We do not recommend or endorse any specific professionals, tests, products, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by us, our employees, others appearing on Site at our invitation (such as bloggers or guest writers), or other visitors to the Site is solely at your own risk.
Must be an Adult and Comply with Law
Customer represents and warrants that: (i) Customer is at least eighteen (18) years of age (except in the specific instance of being a patient/client, invited by a clinician, for sole purposes of communication about care within the portal, at least age thirteen (13)); (ii) Customer possesses the legal right and ability to enter into this agreement and be bound by these terms; and (iii) the performance of your obligations and use of the Services (by Customer, your customers and users) will not violate any applicable laws, regulations or the Acceptable Use Policy or cause a breach of any agreements with any third parties or unreasonably interfere with other Company customers’ use of the Services.
Termination of the Services and the Terms for Cause
A breach or violation of any of the terms by you will result in an immediate termination of the Services being provided to you and termination of these terms as between you and the Company.
Section 3 – General Conditions
Right to Refuse Service
We reserve the right to refuse service to anyone for any reason at any time.
Transmission of Information over the Internet
You understand that certain content provided by you or other users of the Site and Services may involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Intellectual Property Rights
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the Site through which the Service is provided, without express written permission by us.
Company retains all worldwide rights and ownership in the intellectual property in and on the Site, the “look and feel” of the Site, its color combinations, layout, and all other graphical elements, and the copyrights in and to its original content. The Site is copyrighted, trademarked, or otherwise protected, and owned or licensed by Company. Nothing in this Agreement grants you an express or implied right to use any Company intellectual property except as set forth herein.
Limited permission is granted to you to temporarily use the materials, including without limitation comments, messages, data, documents, graphics, photographs, images, webpages or any other information or materials (regardless of form) (the “Materials”), on the Site for non-exclusive, transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
- modify or copy the Materials;
- use the Materials for any commercial purpose, or for any public display (commercial or non-commercial);
- attempt to decompile or reverse engineer any software contained on the Site;
- remove any copyright or other proprietary notations from the Materials; or
- transfer the Materials to another person or “mirror” the Materials on any other server.
In addition to the termination rights granted in Section 2 above, this license shall automatically terminate if you violate any of these restrictions and this license may be terminated by the Company at any time for any reason whatsoever in Company’s sole discretion. Upon terminating your viewing of these Materials or upon the termination of this license, you must destroy any downloaded Materials in your possession whether in electronic or printed format.
Section 4 – Accuracy, Completeness and Timeliness of Information
We are not responsible if information made available on this Site is not accurate, complete or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Site is at your own risk.
Historical Information and Materials
This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.
Section 5 –Client/Patient Accounts
Prospective or current patients and/or client accounts are always free and provide access to a patient/client portal. They do not provide access to the provider’s chart. Patient requests for their chart must always be directed to the provider; Luminello will never release a chart to a patient except upon court order.
Patient/Client Account Cancellation
Cancellation requests may be made at any time by patients/clients and Company reserves the right to seek verification from the account holder of any account closure requests for security reasons. Note that a patient/client account comprises access to the patient/client portal; this is separate from and independent of a provider’s chart of that patient/client. Patient/clients therefore do not own their chart; instead a request to delete a patient/client chart must be administered by the clinician who has created that chart.
Section 6 – Products or Services Limitations
Right to Limit Product or Service Offerings
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
Section 7 – Professional Clinician Accounts
Professional Clinician Subscription Accounts
Professional clinicians have the option of purchasing a premium (non-free) subscription account as further detailed herein. A subscription account has additional features and tools that are not available on the free account. A trial account gives temporary access to the features of a subscription account for free; upon expiration of the trial account, access to subscription features is no longer available unless a user upgrades to a subscription account and pays the corresponding account fee.
Right to Limitations on Orders
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed fraudulently or otherwise violate these terms of service.
Establishing an Account
When providers use the Site to establish an account, they will be asked to submit professional licensure and practice information in order to have public-facing features (such as a public profile), and establish a password. You may not share an account with anyone else, except an administrative assistant who you authorize and who you establish a separate account for. You assent that you are the rightful owner of the name and identity under which you are establishing your account. We verify the professional licensure and practice information you submit to us, but we may request additional information from you to establish, maintain, or reverify an account, at our discretion. If you do not provide this information, we may at our sole discretion not establish, or cancel, your account.
Maintaining Account Security – Your Responsibilities
You are solely responsible for maintaining the confidentiality of your account and passwords and for restricting access to your computer and/or account, and you agree to accept responsibility for all activities that occur under your account or passwords. You agree that the information you provide to Company during the account creation process and at all other times thereafter will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify Company. You may be liable for the losses incurred by Company or others due to any unauthorized use of your account.
Payment of Fees
Customer is responsible for and will pay in full all fees due and payable hereunder. Except as otherwise stated herein, (i) fees are based on Services purchased and not usage; (ii) payment obligations are non-cancellable and fees paid are non-refundable; and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
You are responsible for complying with the following payment policies:
- A) You will provide to us valid and updated credit card information; If you provide credit card information to us, you authorize us to charge such credit card for all purchased Services selected by you through the Site for the initial Subscription Term (as further defined below) and any renewal Subscription Term(s). See Subscription Term and Renewals The customer is responsible for keeping credit card information valid and up to date, including expiration date; and to update credit card info when necessary. To protect the security of accounts, Company will not enter credit card information on the customer’s behalf on the Site, nor will it handle credit card information via email, phone, or in written form.
- B) If you initially sign up for a premium (non-free) account, and you do not cancel that account within the specified free trial period, you will be billed monthly at the date and time that your free trial period ends. Note that the “days” of the free trial correspond to 24-hour periods beginning at the date and time that you sign up.
- C) Payment is due monthly, in advance, for use of Services the following month (unless a yearly contract option is selected).
- D) Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases made hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this section, we will notify you and you hereby authorize us to charge your credit card for that amount of Taxes that you are responsible to pay under this section unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.;
- E) For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle;
- F) Downgrading your Service may cause the loss of Content, features, or capacity of your Account. You agree that Company does not accept and is not liable for any such loss to you.
Prices for our Services are subject to change without notice. Unless you give notice to the Company that you do not wish to renew the Services, then you are deemed to have accepted the increased fee for subsequent renewal terms.
Subscription Term and Renewals
The term for each Service will commence on the date when the customer’s fully paid account is activated and will continue according to the Subscription Term selected. Payment is made in advance either monthly for each following month or yearly if paying annually (the “Subscription Term”). If payment is not made at the expiration of the Subscription Term, access to the account is suspended completely and your account will revert solely to the features available on the free plan, unless and until the payment is received for a new Subscription Term. Upon expiration of the then current Subscription Term, the Subscription Term shall be extended automatically on a month-to-month (or year-to-year for those customers electing and paying for this option) basis to ensure a continuation of the customer’s Services.
Professional Clinician Account Cancellation
Cancellation requests may be made at any time by the primary administrator of a provider’s account and Company reserves the right to seek verification from the account holder of any account closure requests for security reasons. Company has no obligation or liability to cancel an account with unpaid charges and Company will not cancel such accounts until said balances are paid in full.
If any charged amount is not received by us by the due date, or is otherwise rejected or declined, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future subscription renewals on payment terms shorter than those specified in this section.
Section 8 – Optional Tools
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. Such third-party tools are subject to third party terms and conditions governing their use by you. These terms and conditions will not apply or govern your use of such third-party tools.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement thereof. You agree that we are not liable and shall have no liability whatsoever arising from or relating to your use of optional third-party tools and you will seek relief or resolution of any issues or claims arising thereof with such third party.
You must have a valid, signed Business Associate Agreement with any third-party provider that offers one (even if you must be on a paid/upgraded plan to be eligible), and it must be in effect before use in conjunction with Luminello. See “Disclaimer – Third-Party Services” below for additional conditions.
Any use by you of optional tools offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these terms unless such tools are third-party tools as described herein.
Section 9 – Third-Party Links
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this Site may direct you to third-party websites that are not affiliated with us. You acknowledge and agree that we are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
You acknowledge and agree that we are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. You are responsible for reading and understanding the third-party’s policies and practices. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
Section 10 – User Comments, Feedback and Other Submissions
Solicited and Unsolicited Comments and Feedback
Whether requested or not by us, if you send us certain specific submissions, creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “comments”), you agree that these comments become our property and that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation: (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
No Obligation to Monitor or Remove Content
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion is unlawful, offensive, threatening, abusive, libelous, defamatory, pornographic, obscene, sexually explicit, harassing, hateful or otherwise objectionable or violates any party’s intellectual property, trade secrets, privacy or publicity rights of or embarrassing to others, or these terms. We are not required to make any such investigation or to remove any user materials, and we will not be liable to any user for taking or not taking such actions. Any materials we find in our discretion to violate these terms may be removed. If we are notified by a user that any user materials on the Site violate these rules, we may investigate and determine in good faith whether we agree with such allegation, in which case we may remove or request the removal of user materials.
Acceptable Use Policy Regarding Comments, Feedback, and other Standards
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You may not advertise or solicit any commercial business or anything requiring a monetary investment, other than the information limited to your private professional practice. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, post false or inaccurate information or otherwise mislead us or third-parties as to the origin or truthfulness of any material. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
Interpretation of Site and Terms Rules, Polices and Standards
We are the sole interpreter of the Site rules of conduct, policies, and any other standards described in these terms. Users who violate these rules, policies, and standards may have their access and use of the Site suspended or terminated at our discretion. We may at any time take any action with regard to user materials that we deem in our sole discretion to be necessary or appropriate.
How to Report Conduct
Report any concerns about illegal, injurious, or inappropriate postings or conduct to firstname.lastname@example.org.
Section 11 – Privacy of Personal Information
Additionally, by using the Service, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Service may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.
While Luminello actively adheres to security best practices when handling sensitive data such as Personal Data, our users also need to follow common sense practices when using our Service. Thus, users should not post sensitive data in any part of the Service that can be seen by others.
Section 12 – Errors, Inaccuracies, and Omissions
Occasionally there may be information on our Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
Section 13 – Prohibited Conduct and Uses
WE RESERVE THE RIGHT TO REFUSE OR DENY ACCESS (INCLUDING TERMINATING ANY ASSOCIATED ACCOUNTS) TO THE SITE OR SERVICE TO ANYONE FOR ANY REASON INCLUDING BUT NOT LIMITED TO ANYONE WHO FAILS TO COMPLY WITH ANY OT THESE TERMS OR ANYONE WHO HAS COMMITTED A FELONY OR A CRIME OF MORAL TURPITUDE.
In addition to other prohibitions as set forth in these terms, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, flood, mailbomb, crash, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Site or Service or any related website, other websites, or the Internet; (l); accessing data not intended for such user or logging into a server or account which the user is not authorized to access; (m) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (n) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (o) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
Right to Terminate
We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
License and Warranty for Submitted Material
By submitting material to any area of the Site, you automatically grant, or warrant that the owner of such material has expressly granted, to us the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material.
Restricted Uses for Company Products and Services
You may not sell, transfer or assign any products or services or your rights to any products or services provided by us to any third party without our express written authorization. You may not copy, modify, alter, or excerpt (or encourage or help others to copy, modify, alter, or excerpt) the Site materials. You may not use (or encourage or help others to use) the Site for any purpose or in any manner that is prohibited by these terms or by applicable law. You acknowledge and agree that these terms in no way convey any right, title or interest to you in any materials on the Site, including, without limitation, any statutory or common law copyright, patent or other intellectual property right in such materials.
Copyrights and Trademarks
The trademarks, names, logos and service marks (collectively “Trademark(s)”) displayed on this website are registered and unregistered trademarks of the website owner. Nothing contained on this website should be construed as granting any license or right to use any Trademark without the prior written permission of the website owner. The written content displayed on the Site is owned by its respective author and may not be reproduced in whole, or in part, without the express written permission of the author.
You are responsible for reporting to Company if your professional license is suspended or put in abeyance for any reason. You must report this information to the Company within 10 business days of your license being suspended. Failure to report a suspension of your license within this time period will result in the automatic termination of these terms and your account as further described in these terms. A suspended license should be reported to the Company at email@example.com.
If your license is suspended for any reason you must immediately stop communicating with clients or potential clients through the Site and Service. Failure to comply will result in the automatic termination of these terms and your account as further described in below. Violations of this policy should be reported to the Company at firstname.lastname@example.org.
If your account is part of a group account, then you may not use that account for a secondary practice (such as, using an employer sponsored account for a private practice).
You will abide by all applicable laws and regulations regarding use of the Service. Luminello and its licensors make no representation that the Service is appropriate or available for use in any location. The Service is controlled and operated from within the United States. Luminello makes no representations that materials contained within the Service are appropriate or available for use in other locations, and access to the Service from locations where that activity is illegal is prohibited. Those who choose to use the Service from other locations do so on their own initiative and are solely responsible for compliance with all applicable laws.
Various partner services, such as e-prescribing, may not be available if you are outside the United States. At its discretion, and for security purposes only, Luminello may also black access to those logging in from any location outside the United States.
By accessing the Service, you agree that you are responsible for complying with all applicable laws export and trade and economic sanctions regulations, including the U.S. Export Administration Regulations (“EAR”), 15 CFR Parts 730-799, and economic sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls (“OFAC”), 15 CFR Parts 500-599. As such you agree that you will not download or use the Service without all required approvals in any proscribed destination (including Cuba, Iran, North Korea, Sudan, and Syria), on behalf of any proscribed entity or person, including those listed on the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons and/or Entity List, for any proscribed end use, including weapons of mass destruction or any proliferation related activity, or in any other manner contrary to these export regulations and sanctions programs. For further information on these restrictions, see http://www.bis.doc.gov/ and http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx. You further certify that you are not a proscribed end-user or the Service for a proscribed end use or other unauthorized end use under the regulations, as described above.
Section 14 – Disclaimer for Warranties; Limitation of Liability
Disclaimer – Service Availability, Responsiveness, Monitoring and Quality
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure, successful or error-free.
Company does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the services or any information that may be obtained therefrom is at customer’s own risk
Company does not and cannot control the flow of information to or from Company’s network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the internet (or portions thereof). Company cannot guarantee that such events will not occur; accordingly, Company disclaims any and all liability resulting from or related to such events.
Disclaimer – Delays and Interruptions
Company shall not be liable for any loss of data resulting from delays, corruption of data, nondeliveries, misdeliveries or service interruptions. Customer shall be solely responsible for the selection, use and suitability of the Services, and Company shall have no liability therefor. except to the extent of Company’s gross negligence or willful misconduct, neither Company nor its network services supplier will be liable for unauthorized access to Company’s or customer’s transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of customer’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of Company’s or its network service supplier’s negligence.
Disclaimer – Service Use Results
We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
Disclaimer – Third-Party Services
Company provides features and functionality provided by third-party service providers on the Site and Services. Company does not own or operate any services by third-party service providers, even if those services are integrated within Luminello and/or have a similar “look and feel.” Company is not responsible for any act or omission of any third-party service providers, including failure to adequately protect patient health information. You agree to assume all risks and liabilities associated with the use of any third-party services on the Site and Services. Company may cease providing such features or functionality of third-party services providers at any time. You understand that the Business Associate Agreement does not apply to third-party service providers unless Luminello, Inc. has entered into a Sub-Business Associate Agreement with a third party, and that you are responsible for obtaining a Business Associate Agreement directly from third-party service providers should you desire one, as well as explicit permission from your patients/clients, after having provided informed consent, for use of any unencrypted communication (eg. SMS or emails with protected health information as defined by HIPAA). Company expressly disclaims any and all liability resulting from your use of any third-party services that leads to a breach of HIPAA or other state laws protecting privacy, or your electing to send PHI via unencrypted means without having obtained explicit informed consent. You hereby agree to hold Company free and clear from any and all claims and liability regarding your use of the third-party services or electing to send PHI via unencrypted means without having obtained explicit informed consent.
SITE AND SERVICES PROVIDED AS-IS AND NO WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT OR THOSE ARISING FROM COURSE OF DEALING, PERFORMANCE, TRADE PRACTICE OR USAGE.
LIMITATIONS OF LIABILITY
IN NO CASE SHALL COMPANY, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS OR GOODS, LOSS TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT OR ANY SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SITE, SERVICE OR ANY PRODUCTS PROCURED USING THE SERVICE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE, SERVICE OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
EXCEPT FOR YOUR INDEMNITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL YOU BE LIABLE OR RESPONSIBLE TO THE COMPANY FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
CAP ON DAMAGES
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY CONTAINED IN THESE TERMS, COMPANY’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIM RELATED TO, OR IN CONNECTION WITH, THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY YOU.
Section 15 – Indemnification, Mediation and Arbitration
You agree to indemnify, defend and hold harmless Company and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these terms or the documents they incorporate by reference, or your violation of any law or the rights of a third-party. Customer will reimburse Company and its affiliates for all legal expenses, including reasonable attorneys’ fees, incurred by Company and its affiliates in connection with any such Losses.
You acknowledge that COMPANY possess valuable confidential and proprietary information, including trade-marks, trade secrets and business practices, which would be damaging to COMPANY if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes between COMPANY and you confidentially, individually and in an expeditious and inexpensive manner. COMPANY and you accordingly acknowledge and agree that private dispute resolution is preferable to court actions. Notwithstanding any other provisions of these terms, before commencing any arbitration in the manner set out in this section, COMPANY and you shall first attempt to resolve any dispute or differences between COMPANY and you by way of good faith negotiation. The good faith negotiation shall commence by both COMPANY and you communicating each other’s respective position regarding the complaint, claim, dispute or controversy to the other party, and how COMPANY and you propose to resolve the dispute in compliance with these terms. COMPANY and you shall then make good faith efforts to negotiate a resolution of the claim, dispute or controversy in compliance with these terms. Neither COMPANY nor you shall commence any arbitration proceedings as described herein unless and until the good faith negotiation fails.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST COMPANY and COMPANY’s agents, employees, officers, directors, successors, assigns or affiliates (collectively, for purposes of this paragraph, the “Group”) arising from or relating to these terms, its interpretation or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future (including, to the full extent permitted by applicable law, relationships with third parties who are not a party to these terms), the Group’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS in each instance in San Francisco County, California, under the JAMS’s procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet at “http://www.jamsadr.com/”, or via telephone at 1-800-352-5267 or email at “email@example.com”). The arbitration will be limited solely to the dispute or controversy between you and the Group. Any award of the arbitrator(s) shall be final and binding on COMPANY and you, and may be entered as a judgment in any court of competent jurisdiction. Information may be obtained, and claims may be filed online at “http://www.jamsadr.com/electronic-filing/”.
Section 16 – Severability
In the event that any provision of these terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
Section 17 – Account removal and Termination
Survivability of Terms
The obligations and liabilities of the parties incurred prior to the cancellation or termination of these terms shall survive the cancellation or termination of these terms for all purposes.
Termination for Cause
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these terms, we also may terminate these terms at any time without notice to you and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
Termination or Cancellation
These terms are effective unless and until cancelled or terminated by either you or us as otherwise detailed herein (including automatic termination of terms and/or the license granted herein).
As stipulated in the sections “Professional Clinician Account Cancellation” and “Patient/Client Account Cancellation” above, you may request to cancel your use of the Services, delete your account and terminate these terms with or without cause at any time only by emailing firstname.lastname@example.org; provided, however, that 1) a deleted account may continue to exist for a reasonable period of time before such cancellation takes effect in order for Company to process the removal request, 2) for patient/client requests, the clinician who owns the patient/client chart has consented to the patient/client chart deletion request, 3) there are no legal or regulatory requirements that prevent us from taking action on your request. The Company will always keep a record of when you created your account, your consent to the terms of service, communication between the Company and you, your length of use of service and your request to cancel, and to maintain data integrity, may anonymize personally identifiable data instead of deleting it. Furthermore, due to the inherent nature of messages being two-way communication, parties with whom you messaged will still have a copy of those messages.
Section 18 – Waivers, Entire Agreement and Ambiguity
The failure of us to exercise or enforce any right or provision of these terms shall not constitute a waiver of such right or provision.
These terms and any policies or operating rules posted by us on this Site or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, negotiations, or understandings, between you and us (including, but not limited to, any prior versions of the terms).
Any ambiguities in the interpretation of these terms shall not be construed against the drafting party.
Section 19 – Governing Law
WAIVER OF TRIAL BY JURY
These terms shall be governed in all respects by the laws of the United States of America and by the laws of the State of California without regard to the choice of law rules and regulations thereof appertaining. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in California, as applicable, for any matter arising out of or relating to these terms, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in California, such personal jurisdiction shall be nonexclusive.
Section 20 – System Requirements
– Firefox, two latest releases only (Windows and Mac)
– Safari, two latest releases only (Mac only)
– Google Chrome, current release only (Windows and Mac)
Internet Explorer is not supported.
Section 21 – Notices and Contact Information
Consent to Electronic Notices
You specifically agree to receive and/or obtain any and all notices related to these terms, the Site and the Services via electronic notices such as email or communications through the Site or Services. This includes, but is not limited to, any and all current and future notices and/or disclosures that various federal and/or state laws or regulations require that we provide to you, as well as such other documents, statements, data, records and any other communications regarding your account. You acknowledge that, for your records, you are able to use your account, computer, tablet, mobile device or email account to retain any such electronic communications or notices by printing and/or downloading and saving these terms and any electronic communications or notices or other agreements, documents, materials, polices, records, etc. You accept electronic communications and notices provided via the Site, Service and email or other electronic means as reasonable and proper notice, for the purpose of any and all laws, rules, and regulations, and agree that such electronic form fully satisfies any requirement that such communications be provided to you in writing or in a form that you may keep.
Questions about these terms and any other inquiries should be sent to us at email@example.com.