Purchase or Registration of any kind of or with GoPHR online personal health record services or uses or accesses this website for any purpose creates a binding contract (sometimes herein referenced as the “Agreement”) between the person or entity purchasing or registering in connection with such services or using or accessing this website, or if applicable, on behalf of the entity or entities for whom that person is purchasing or registering in connection with such services or using or accessing this website, (herein called “You”, “Your” or “Customer”), and GoPHR, the owner and administrator of this Website and all content and functionality contained herein (“GoPHR”, “We”, “Us”, or “Company”). Such binding contract consists of the following Terms and Conditions, together with any information and documentation referenced therein. These Terms and Conditions (“Terms and Conditions”) govern Your use of and access to this Website and any and all of its sub-pages and related websites (collectively, the “Website”), and any of the services offered on the Website.
IT IS STRONGLY RECOMMENDED THAT YOU REVIEW THE TERMS AND CONDITIONS IN ITS ENTIRETY BEFORE ACCESSING, USING OR BUYING ANY PRODUCT OR SERVICE THROUGH THE WEBSITE. THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS IN RELATION TO THE WEBSITE AND ITS CONTENTS AND TO ALL RELATED SERVICES, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
1. ACCEPTANCE OF TERMS AND CONDITIONS.
A. By using this Website or placing an order with GoPHR through the Website, You accept, without limitation or qualification, these Terms and Conditions and agree, without limitation, to the terms of Our Privacy Statement, which is incorporated herein by this reference. If You do not agree to be bound by these Terms and Conditions and the Privacy Statement, You should exit the Website immediately and refrain from any further access to or use of this Website. By accessing, using or ordering products and services through the Website, You affirm that You have read this Agreement and understand, agree, and consent to all Terms contained herein.
C. These Terms and Conditions constitute the entire agreement between GoPHR and You, and supersede to their exclusion all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the Website, the content, products, or services provided by or through the Website, and the subject matter of these Terms and Conditions. This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act. You manifest Your agreement to the Terms in this document by any act demonstrating Your assent thereto, including clicking any button containing the words “Yes”; “I Agree”; “Submit” or similar syntax, or by merely accessing the Website, whether You have read these Terms or not. It is suggested that You print this form for Your personal records.
D. These Terms and Conditions, and any portion thereof, may be modified from time to time without prior notice and in GoPHR’s sole and absolute discretion. Such modifications may include without limitation those related to the price of any Products or Services as provided herein, descriptions and other e-commerce related information and/or functionality. The date of the most recent revisions will appear on this page. Continued access to and/or use of the Website, Products and/or Services by You will constitute Your acceptance of any changes or revisions to these Terms and Conditions, whether or not You have fully reviewed any revisions on this page.
2. HEALTH DISCLAIMER
Any statements on this site or any materials or services distributed or sold by GoPHR or through www.GoPHRit.com have not been evaluated by the Food and Drug Administration, and our Products and Services are not intended to diagnose, treat, cure or prevent any disease. The information on this Website or in emails or materials distributed to You by GoPHR is designed for informational purposes only and is not intended to be a substitute for informed medical advice or care. You hereby acknowledge and understand as such and disclaim any and all claims against and responsibilities and liabilities of GoPHR, or any person or entity related to GoPHR, in any way related to any such diagnosis, treatment, cure or prevention of disease, it being expressly understood that You are advised to consult with an appropriate physician or other professional with respect thereto. YOU KNOWING AND FREELY ASSUME ALL RISKS of participation in any activity or program set forth at the Website and in connection with the use of any Product or Service sold or procured through the Website. YOU AGREE THAT GOPHR AND ITS SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSEES, EMPLOYEES, OFFICERS, DIRECTORS, ASSIGNEES, PRINCIPALS AND AFFILIATES (collectively, the “RELEASED PARTIES”) SHALL NOT BE LIABLE for any claims, demands, injuries, damages, actions or causes of action that arise in whole or in part due to the negligence of the Released Parties or any of them. FURTHERMORE, YOU FOREVER RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY AND HOLD HARMLESS, the Released Parties from and in relation to all claims, demands, injuries, damages, actions or causes of action that arise from or relate in any way to Your participation in any activity or program set forth at the Website or in connection with the use of any Product or Service sold or procured through the Website.
3. ORDERING PRODUCTS THROUGH THE WEBSITE; POLICIES
GoPHR offers various products and services for sale (collectively, the “Products” and “Services”) on the Website. GoPHR reserves the right to modify the prices charged for these Products and Services, or to add or remove any Products or Service from the Website, at any time without prior notice to You. Price quotes provided to You prior to any price modification shall be honored to the extent accepted by You through an order placed prior to any price modification.
A. GoPHR’s Basic Membership. GoPHR offers a Basic membership for the description of services described above in paragraph A. Beginning on the day that You place an order to enroll in GoPHR’s Basic membership, Your credit card will be charged Forty-Nine Dollars ($49.00) for Your one (1) year membership and Thirty-Five Dollars ($35.00) for annual renewal memberships following the first year of service. Such membership shall be automatically renewed annually unless You provide notice to GoPHR otherwise or GoPHR discontinues or cancels such membership. If You are using a special code, coupon or offer that allows a lower price upon purchase, You will be charged the price associated with that offer. Company agrees to make good an offer presented to us as long as the offer has not expired or that the User is subject to and eligible to receive said special offer or if the User did not obtain said offer illegally. In most cases, once membership is purchased, You will be able to begin using the product within 2 minutes; in some rare instances it may take longer; but in every instance it will be less than 24 hours from time of purchase.
B. GoPHR’s additional service offerings. Should You opt to purchase Concierge Service, which allows the Company to seek out, collect and digitize personal health records on Your behalf, Your credit card will be charged a one-time fee of Five Hundred Dollars ($500.00). You will be required to provide adequate information on each service provider and You will be required to personally sign HIPAA approved request forms in advance of Company retrieving any personal health information or medical records on Your behalf. Since the retrieval of personal health information and medical records varies in time from provider to provider, Company does not make any promises as to a time frame of delivery, nor does Company guarantee that service providers will comply with any federal or state regulations in turning over medical records upon request. Company will use reasonable means to follow up on each request with each service provider and will provide a reasonable scope of time and hours spent on each request. Company does not guarantee that providers will cooperate fully and You understand and agree that the results of this Service may vary from User to User based on those issues. You agree that the results from our efforts to secure as much personal health information and medical records from these providers will be sufficient and accepted as delivered in full. In the event of any failure by any service providers to perform as required in connection therewith, You agree to pursue any related claims and recovery from such service providers and not from Company, and You hereby disclaim any related responsibility or liability Company might have and waive any related claims.
C. Payment. GoPHR membership subscriptions must be paid for in full prior to activation and use and, unless otherwise indicated such as in the case of a free trial or offer, are valid for one (1) year. If You choose to pay with a Credit or Debit Card, You agree that GoPHR can charge Your card for the applicable membership amount. Should Your card on file be declined, expired, rejected or otherwise, not allowing GoPHR to collect membership fees as agreed by You, Your membership will be suspended and records collection will cease, and all unpaid Products and Services shall be withheld, until You update Your card information with GoPHR. Should You choose to pay by personal check or money order, You may mail that check to Customer Service at PO Box 69834 Oro Valley, AZ 85737. Customer Service will then contact You when payment has been received to activate Your account.
D. GoPHR Membership Provisions. When You purchase a membership of GoPHR, You will be provided a GoPHR online account as part of Your membership. You will be asked to create a Username, a Password, and may be asked to validate Your identity by answering a personal history question. Once You have successfully registered with those items and they are verified by GoPHR, and once You have successfully paid Your membership fees, You will have full access to Your GoPHR online account. You are required to provide an accurate name, phone number, and e-mail address when placing Your order. Should there be any changes in Your contact information, You must contact our Customer Support Center immediately and notify Us of Your current contact information.
E. Cancellation of Your GoPHR membership. If You wish to cancel Your GoPHR membership, You may do so at any time by calling Our Customer Support Center at (520) 413-5433, Mon-Fri: 9am – 5pm MST. GoPHR will offer a refund of Your membership fee if You decide to cancel within seven days (7) of Your activation. To cancel Your membership and receive a refund, You must contact Customer Service via telephone at the above numbers and during the above business hours within 7 days of activation. There will be no refund available to Users who have participated, prior to purchase, in any length free trial of the product or application. GoPHR will retain personal health information and medical records for a six (6) month period prior to destroying and eliminating those records per our Document Retention Policy. You may obtain an electronic copy of those records from Company by contacting the Customer Service Center and requesting that service. You may also sign Company’s Override of Document Retention Policy form to request that Your personal health information and medical records be destroyed and removed from Company’s database at an earlier time.
4. CREDIT CARD or BILLING ERRORS
By ordering Products and/or Services from GoPHR, You authorize GoPHR to charge Your credit card accordingly. Please be aware that the descriptor (or subject line) that appears on Your credit card statement or entry will appear as GoPHR. If You believe that You have been erroneously billed, please notify Our Customer Support immediately of such error. If GoPHR does not hear from You within thirty (30) days after such billing error first appears on any account or credit card statement, such fee will be deemed accepted by You for all purposes, including resolution of inquiries made by Your credit card issuer. You release GoPHR from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to Us within thirty (30) days of its publication.
5. USING THE WEBSITE
A. Eligibility. Except as expressly provided below, Products and Services may only be used by, and membership is limited to, individuals who can form legally binding contracts under applicable law. Membership is defined by engaging in a purchase agreement with GoPHR wherein You, the consumer, purchase one of the Products or Services found on the Website. GoPHR grants You a limited, non-exclusive license to access and make personal use of the Website for legal purposes and uses that are permitted by these Terms and Conditions. This license does not include any resale or commercial use of this Website or its contents; any collection or use of any product or service listings, descriptions or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant, vendor or customer; or any use of data mining, robots or similar data gathering and extraction tools. Your right to use the Website, Products and Services is personal to You. You may not authorize others to use the Website, Products or Services, and You are responsible for all use of the Website, Products and Services by You and by those You allow to use, or to whom You provide access to, the Website, Products and/or Services. If You use the Website, You agree to accept responsibility for all activities that occur under Your account or Password. GoPHR and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole and absolute discretion. Memberships are non-transferrable and non-assignable and may not be shared. You agree to: (a) maintain all equipment necessary for Your access to and use of the Website; (b) maintain the security of Your user identification, Password and any other confidential information relating to Your GoPHR account; and (c) take responsibility for all charges resulting from use of Your GoPHR account, including without limitation unauthorized use prior to notifying GoPHR of such unauthorized use and taking the legal steps to prevent further occurrence of such unauthorized use by contacting GoPHR to change Your Password.
B. Compliance. You must comply with all of the Terms of the Terms and Conditions, the policies referred to below, and all applicable laws, regulations and rules when You use the Website.
C. Description of Services. GoPHR is an independent medical information-gathering source and information repository. The software application contained herein allows You to import, store and manage personal health records and important personal documents; fill in questionnaires that complete Your health profile; and utilize tracking journals to monitor ongoing health issues and set up fitness and wellness regimens. In order to store and manage these records, You must first grant GoPHR both access and permission to digitize Your Protected Health Information (“PHI”), as defined by 45 C.F.R. Parts 160, 162, and 164 and as may be periodically revised or amended by the U.S. Department of Health and Human Services and enforced by the Office of Civil Rights (“OCR”). Agreeing to these Terms and Conditions implicitly furnishes that permission as though expressly set forth in any written instrument legally necessary to effectuate such permission. These records are accessible by You from any computer or device that is able to establish a connection to the internet using a unique and individual user name/password and combination exclusively determined by You during account creation. You are able to alter or completely change the password of Your account at Your own discretion. Once created, the user name on an account must remain completely unique and may never be altered or changed, unless specified herein. Your PHI will not be disclosed by GoPHR without Your express permission, which may be submitted in written format or requested while logged-in to the secure and encrypted GoPHR Website.
D. Nothing on the Website or in the application is intended to be used for medical diagnosis or treatment. By access to or use of the Website, Products and/or Services, You understand, acknowledge and agree to the Health Disclaimer in Section 2 of these Terms and Conditions.
E. You acknowledge that GoPHR does not prescreen Content, but that GoPHR and its designees shall have the right (but not the obligation) in their sole and absolute discretion to refuse, edit, move or remove any Content that is publicly available via GoPHR’s Services and Website. Without limiting the foregoing, GoPHR and its designees shall have the right to remove any Content that violates the Terms and Conditions or is otherwise objectionable in GoPHR’s sole and absolute discretion. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not rely in any way on any Content created by GoPHR or submitted to GoPHR, including without limitation information in any GoPHR Website or Service.
F. PHI Requests By GoPHR. Subject to the Terms and Conditions, You may request GoPHR to obtain copies of Your Protected Health Information (PHI) maintained by various doctors, medical custodians, physicians, and healthcare facilities across the United States. In addition to our flat fee of $500, such requests are subject to applicable charges and fees, including handling and process fees and per page copy charges, which vary state by state. You hereby authorize GoPHR to charge Your credit card for any and all such fees and charges required to obtain any requested PHI. GoPHR agrees to provide You, upon request, a copy of the invoice received from the originating doctor or facility. These record(s) and copy charges are not disputable. GoPHR will notify You electronically of the amount required and will seek Your approval before accepting the PHI. If You would like GoPHR to proceed with the request and obtain the PHI, You must agree to pay any applicable fees and charges by electronically accepting the fees and charges and thereby authorizing GoPHR to charge Your credit card for any and all such fees and charges required to obtain the requested PHI. Failure by You to electronically accept or reject a notification of charges and fees required to process a PHI request within fourteen (14) days from the date of electronic notification will be considered a rejection by You of such charges and fees and GoPHR will effectively cancel the PHI request.
G. GoPHR Not Responsible For Accuracy And Completeness Of PHI. GoPHR is not responsible or liable in any way for the accuracy or completeness of any PHI retrieved by GoPHR. In the event of any claims or liabilities associated with such accuracy or completeness of such PHI, You agree that all claims and recovery shall be pursued exclusively against and from the source of the PHI, and not from GoPHR, and You hereby disclaim any related responsibility or liability GoPHR might have and waive any related claims.
H. Account Maintenance, Password, and Security. You will receive a password and unique account designation/user ID upon completing GoPHR registration process. By visiting this Website and creating a user account, You are responsible for maintaining both the confidentiality and security of Your password and account, and are fully responsible for all activities that occur under Your password or account. You agree to (a) immediately notify GoPHR of any unauthorized use of Your password or account or any other breach of security, and (b) ensure that You exit from Your account at the end of each session. GoPHR cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section and the Terms and Conditions. Your account designation/user ID, once received, can never be changed, except upon confirmation of a breach of security in connection with such information, in which event You shall be responsible for reporting to GoPHR such breach of security and initiating such change. GoPHR shall not in any way be liable or responsible in connection with such breach of security except to cooperate with Your formal request to confirm such breach of security and change such information upon confirmation of such breach of security. In the event GoPHR suspects any breach of security that has not been reported by You, GoPHR will promptly notify you of such suspected breach, in which event it will become Your responsibility to submit a formal request to confirm such security breach and change your account designation/user ID upon such confirmation. In connection any suspected security breach, upon Your formal request to confirm such security breach, GoPHR will assign a temporary Password pending such confirmation, whereupon GoPHR shall permit a new Password and related account designation/user ID as formally requested by You. GoPHR has several tools that allow You to record and store information. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to Your GoPHR passwords or accounts. It is Your sole responsibility to (a) control the dissemination and use of activation codes and passwords; (b) authorize, monitor, and control access to and use of Your GoPHR account and password; (c) promptly inform GoPHR of any need to deactivate a password. You grant GoPHR and all other persons or entities involved in the operation of the Website the right to transmit, monitor, retrieve, store, and use Your information in connection with the operation of the Website. GoPHR cannot and does not assume any responsibility or liability for any information You submit, or Your or third parties’ use or misuse of information transmitted or received using GoPHR tools and services. It will be Your sole responsibility to maintain the account password security and any changes to, or alterations thereof, must be completed while logged-in to Your secure account. In the event a password is forgotten, You will be required to validate Your identity and answer the self-created security questions established during account creation. Once this process is complete, GoPHR will send You an email at the email address associated with the account. The email will contain instructions on how to reset Your password. You further understand and agree to maintain all personal demographic information gathered while creating their secure account with GoPHR which may include, but is not limited to, legal name, home address, billing address, email address, any and all contact phone/fax numbers, credit card account numbers, medical record numbers, and medications/doses. You acknowledge and agree that GoPHR, its employees, officers, directors, agents, and contractors, and all other persons or entities involved in the operation of GoPHR or of the Website shall have the right to access, transmit, receive, monitor, retrieve, store, maintain, and use the information in Your account to provide the Services and operate the Website, including but not limited to converting documents received on Your behalf to an electronic format. In addition, You acknowledge and grant permission for Emergency Medical Technicians (EMTs) and other emergency, urgent care and critical care personnel, unconditional access, through a special portal connected with GoPHR, to certain vital medical information in the event of an emergency. You will receive one or more GoPHR Identification Cards to carry or place wherever You feel is appropriate. In the event of an emergency, EMTs and other emergency, urgent care and critical care personnel may use such GoPHR Identification Card(s) to access certain vital medical information of Yours on file with GoPHR. Such access shall be on a “read only” basis without any capacity to edit, and the information made available under such circumstances will be limited to information GoPHR, in its sole and absolute discretion, deems to be vital or critical to address a medical emergency. GoPHR will exercise commercially reasonable efforts to ensure that such access is limited to EMTs and other emergency, urgent care and critical care personnel, but such efforts shall not operate as a guaranty that such access is so limited. GoPHR shall not be responsible or liable for any third-party access to any such information, through fraudulent means, or due to any cause other than GoPHR’s gross negligence or intentional misconduct, or for any inaccuracies in the information that is accessed. You hereby fully release and discharge GoPHR and all persons and entities affiliated with GoPHR from any duty, responsibility or liability, and You agree to indemnify and hold harmless GoPHR and all persons and entities affiliated with GoPHR from any losses, damages, claims and expenses related thereto.
I. Alleged Violations. GoPHR reserves the right to terminate Your use of the Service and/or the Website. To ensure that GoPHR provides a high quality experience for You and for other users of the Website and the Service, You agree that GoPHR or its representatives may access Your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Website or the Service. GoPHR does not intend to disclose the existence or occurrence of such an investigation unless required by law, but GoPHR reserves the right to terminate Your account or Your access to the Website immediately, with or without notice to You, if GoPHR believes that You have violated any of the Terms and Conditions, furnished GoPHR with false or misleading information, or interfered with use of the Website or the Service by others. IN THIS CASE NO AMOUNT WILL BE REFUNDED TO YOU.
J. User Conduct and Restrictions. You understand that all information, data, text, software, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not GoPHR, are entirely responsible for all Content that You upload, post, email or otherwise transmit via GoPHR’s Website and Service. GoPHR does not control the Content posted via the Website and does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Website, You may be exposed to Content that is offensive, indecent or objectionable. Other than page caching, You are not authorized to download or modify the Website or any portion of it. Under no circumstances will GoPHR be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Website.
i) You must be 18 years of age or older to access Our Website. As a user of the Website, You agree that in connection with Your use of the Website and the content You will not:
a) Upload, post, email, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of anyone’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
b) Conduct Yourself in an inappropriate, offensive, indecent, or vulgar manner while using Our service or Website;
c) Use the Website for any unlawful purpose, You acknowledging that doing so may subject You to civil and criminal liability;
d) Disrupt of interfere with the security or use of the Products or Services, the Website or any web sites linked to the Website;
e) Upload, post, email, or otherwise transmit any content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
f) Upload, post, email, or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any person or entity;
g) Upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
h) Interfere with or damage the Website or Services by uploading, posting, emailing, or otherwise transmitting any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, including, but not limited to, viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods of technology;
i) Interfere with or disrupt the Website, the services, the content or servers or networks connected to the Website, the services or the content, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website, the services, and/or the content, the terms of which are incorporated herein;
j) Attempt to use another user’s account, impersonate another person or entity, misrepresent Your affiliation with a person or entity, including (without limitation) the Website or create or use a false identity, You acknowledging that doing so may subject You to civil and criminal liability;
k) Attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
l) Collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Website or the Products or Services;
m) Use any meta tags or any other “hidden text” utilizing the GoPHR name, trademarks, or product names;
n) Advertise, offer to sell, or sell any goods or services, except as expressly permitted by the Website;
o) Engage in any activity that interferes with any third party’s ability to use or enjoy the Website or Services;
p) Assist any third party in engaging in any activity prohibited by the Terms and Conditions;
q) Post or transmit through the Website any material that violates or infringes upon the rights of others, You acknowledging that doing so may subject You to civil and criminal liability;
r) Invade the privacy of any other person or entity, You acknowledging that doing so may subject You to civil and criminal liability;
s) Encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise would violate any local, state, national or international law, regulation, order or decree, You acknowledging that doing so may subject You to civil and criminal liability; or
t) Intentionally or unintentionally violate any applicable local, state, national, or international law, You acknowledging that doing so may subject You to civil and criminal liability.
ii) Without the express prior written authorization of GoPHR, You may not:
a) Duplicate the Website (except as expressly provided elsewhere in this Agreement or as permitted by law);
b) Create derivative works based on the Website or any of the Intellectual Property;
c) Remove any copyright or other proprietary notices from the Website or any of the Intellectual Property contained therein;
d) Frame or utilize any framing techniques in connection with the Website or any of the Intellectual Property;
e) Use any meta-tags or any other “hidden text” using the Website’s name or marks; f) “Deep-link” to any page of the Website;
g) Circumvent any encryption or other security tools used anywhere on the Website (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of the Website);
h) Use any data mining, bots, or similar data gathering and extraction tools on the Website;
i) Use any device, software or routine to bypass any operational element or to interfere, or attempt to interfere, with the proper working of the Website, server or activities conducted therein; or
j) Take any action that imposes an unreasonable or disproportionately large load on the Website or its network infrastructure.
K. Other Users. This Website contains information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively “Content”). GoPHR does not control the Content supplied by parties other than GoPHR. Any opinions, advice, statements, services, offers or other information that constitutes part of the Content expressed or made available by third parties and not by GoPHR are those of the respective authors or distributors and not of GoPHR. In many instances, the Content available through the Website represents the opinions and judgments of the respective service provider or user not under contract with GoPHR. Unless clearly, expressly and unequivocally indicated elsewhere, GoPHR does not necessarily endorse, support, sanction, encourage, verify or agree with the comments, opinions, suggestions, statistics or statements posted by parties other than GoPHR anywhere at the Website or elsewhere in connection with any of the Products or Services. Neither GoPHR nor any of GoPHR’s third-party service providers makes any warranties with respect to any of the data featured or mentioned in connection with the Website, Products or Services. Any information or material placed on-line by parties other than GoPHR, including without limitation advice and opinions, are the views and responsibility of those who post the statements or those who actually sell any merchandise, and do not necessarily represent the views of GoPHR or any of GoPHR’s third-party service providers. Under no circumstances shall GoPHR be responsible or liable for any loss, damage or harm caused by a user’s (including without limitation Your) reliance on information obtained through the Website. It is the responsibility of the user (including without limitation You) to evaluate the information, opinion, advice or other Content available through the Website. You agree that GoPHR and its third-party service providers are not responsible, and shall have no liability to You, with respect to any information or materials posted by any party other than GoPHR, including without limitation defamatory, offensive or illicit material, or material that violates these Terms and Conditions, and You accordingly unconditionally release GoPHR and its third-party service providers from any liabilities and claims related to such information and materials posted by third parties. If You become aware of any conduct that violates the Terms and Conditions or Content that You otherwise consider offensive, We encourage You to contact GoPHR’s Customer Support Center at (520) 413-5433, Mon-Fri: 9am – 5pm MST. We reserve the right, but will have no obligation, to respond to such communications.
L. Objectionable Content. As noted in Subsection I, above, We do not have the ability to control the nature of the user-generated content offered through the Website. You are solely responsible for Your interactions with other users of the Website and any content that You post. We will not be liable for any damage or harm resulting from any content or Your interactions with other users of the Website. We reserve the right, but have no obligation, to monitor interactions between You and other users of the Web Site and take any other action to restrict access to or the availability of any material that we or another user of the Web Site may consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable (including, without limitation, because it violates the Terms and Conditions.
M. Accuracy of Information. We attempt to ensure that the information on the Website is complete and accurate, subject to the disclaimers in Subsection I, above; however, this information may contain typographical errors, pricing errors, and other errors or inaccuracies. We assume no responsibility for such errors and omissions, and reserve the right to: (i) revoke any offer stated on the Web Site; (ii) correct any errors, inaccuracies or omissions; and (iii) make changes to prices, content, promotions, product descriptions or specifications, or other information on the Web Site.
6. INTERNATIONAL USE
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside.
7. NO RESALE OR UNAUTHORIZED USE OF PRODUCTS OR SERVICES
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any GoPHR Product, Service, or Website (or any portion thereof), or the use of or access to any GoPHR Product, Service, or Website (or any portion thereof). You may not in any way make any other unauthorized use, by publication, re-transmission, distribution, performance, caching, or otherwise, of any material or Content obtained through the Website, Products or Services, except as permitted by the Copyright Act or other law or as clearly, expressly and unequivocally permitted in writing by these Terms and Conditions, GoPHR or the Website. You agree not to use any information obtained in connection with Your use of the Website and/or Products and/or Services to solicit or assist in the solicitation of, or provide services of any kind to other users of the Website and/or Products and/or Services, or to any potential or actual customer of GoPHR, or to any potential or actual competitor of GoPHR, except when such solicitation is done with the express written approval of GoPHR. You further agree that You will not in any way use any information obtained in connection with Your use of the Website and/or Products and/or Services to solicit, attempt to solicit, encourage, induce of entice any employees, contractors or consultants of GoPHR to terminate or modify their employment, engagement or business relationships with GoPHR, or to enter into any employment, engagement or business relationships with You or with any competitor of GoPHR.
8. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that GoPHR may establish general practices and limits concerning the use of its Products, Services, and Website, including without limitation the maximum number of days that uploaded Content will be retained by GoPHR’s Services and/or Website, the maximum number of email messages that may be sent from or received by a user account, the maximum size of any content that may be sent from or received by an account, the maximum disk space that will be allotted on GoPHR’s servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access any GoPHR Website or Service in a given period of time. You further acknowledge that GoPHR reserves the right to change these general practices and limits at any time, in its sole discretion with or without notice to You.
9. SALES TAX If You purchase any Products or Services available on the Website, You will be responsible for paying any applicable sales tax indicated on the Website.
10. FRAUD We reserve the right, but undertake no obligation, to actively report and prosecute actual and suspected credit card fraud and/or identity theft. We may, in our discretion, require further authorization from You such as a telephone confirmation of Your order and other information. We reserve the right to cancel, delay, refuse to ship, or recall from the shipper any order if fraud or identity theft is suspected. We capture certain information during the order process, including time, date, IP address, and other information that will be used to locate and identify individuals committing fraud and/or identity theft. If any Website order is suspected to be fraudulent, we reserve the right, but undertake no obligation, to submit all records, with or without a subpoena, to all law enforcement agencies and to the credit card company for fraud investigation. We reserve the right to cooperate with authorities to prosecute offenders to the fullest extent of the law.
11. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
A. THE MATERIALS, SERVICES, AND PRODUCTS CONTAINED AND OFFERED ON THE WEBSITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF ACCURACY, COMPLETENESS, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER GOPHR NOR ANY OF GOPHR’S AFFILIATES THIRD-PARTY SERVICE PROVIDERS, NOR ANY OF THEIR LICENSEES, EMPLOYEES, OFFICERS, DIRECTORS, ASSIGNEES OR AGENTS REPRESENTS OR WARRANTS THAT THE PRODUCTS, THE WEBSITE, THE SERVICES, ITS USE, ANY INFORMATION ON IT OR ANY RELATED MATERIALS: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES, FAILURES, OMISSIONS OR ERRORS OR LOSS OF TRANSMITTED INFORMATION, (III) WILL MEET YOUR REQUIREMENTS, (IV) WILL BE FREE OF VIRUSES TRANSMITTED ON THE WEBSITE, OR (V) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. GOPHR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM OR OTHER VIOLATIONS OF RIGHTS.
B. IN NO EVENT SHALL GOPHR OR ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, UNDER ANY CAUSE OF ACTION WHATSOEVER INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, STRICT LIABILITY, WARRANTY, EQUITY OR OTHERWISE, FOR ANY CLAIM CAUSE OF ACTION, FEE, EXPENSE, COST, OR LOSS (COLLECTIVELY, “CLAIMS”) ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY STATEMENT, THE PRODUCTS, OR THE CUSTOMER’S USE OF THE WEBSITE OR ANY PRODUCT OR SERVICE.
C. GOPHR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE WEBSITE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY GOPHR WEBSITE OR THE SERVERS THAT MAKE SUCH MATERIALS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; GOPHR FURTHER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY FAILURES, DELAYS, MALFUNCTIONS, OR INTERRUPTIONS IN THE DELIVERY OF ANY CONTENT CONTAINED ON THE WEBSITE; ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE CONTENT PROVIDED ON THE WEBSITE; OR ANY CONDUCT BY USERS OF THE WEBSITE, EITHER ONLINE OR OFFLINE. GOPHR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS ON ANY GOPHR WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
D. GOPHR DOES NOT WARRANT OR GUARANTEE THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED BY HEALTHCARE PROVIDERS OR OTHER THIRD PARTIES. NEITHER THE ACCURACY NOR THE COMPLETENESS OF ANY INFORMATION PROVIDED WILL BE VERIFIED BY GOPHR AND THE CUSTOMER ASSUMES THE RISK OF SAME. CUSTOMER IS SOLELY RESPONSIBLE FOR IDENTIFYING AND CORRECTING ANY AND ALL ERRORS IN INFORMATION STORED ON CUSTOMERS BEHALF BY GOPHR. GOPHR ASSUMES NO LIABILITY FOR THE DELAY, FAILURE, INTERRUPTION, INTERCEPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION COMMUNICATED TO OR ENTERED INTO THE SITE THE RISK OF WHICH IS ASSUMED BY THE CUSTOMER.
E. GOPHR SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY INFORMATION CONTAINED AT THE WEBSITE THROUGH ACCIDENT OF THROUGH FRAUDULENT OR WRONGFUL MEANS OR DEVICES.
F. YOU HEREBY KNOWINGLY, VOLUNTARILY AND UNEQUIVOCALLY AGREE TO RELEASE COPHR, ITS AFFILITATES AND ITS THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE LICENSEES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (ALSO INCLUDED IN THE DEFINITION OF “CLAIMS”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THIS WEBSITE, EXCEPT AS CLEARLY AND EXPRESSLY AUTHORIZED IN THESE TERMS AND CONDITIONS. IN ADDITION, YOU WAIVE ANY LEGAL PROVISIONS, UNDER STATUTE, REGULATION OR OTHERWISE, INDICATING THAT GENERAL RELEASES DO NOT EXTEND TO CLAIMS WHICH ARE UNKNOWN, UNSUSPECTED OR UNFORESEEABLE AT THE TIME OF EXECUTING THE RELEASE, INCLUDING WITHOUT LIMITATION THOSE WHICH IF KNOWN BY THE RELEASING PARTY WOULD HAVE MATERIALLY AFFECTED ANY AGREEMENT TO THE RELEASE. PLEASE NOTE THAT SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THESE TERMS AND CONDITIONS. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING IN THIS SECTION 11 MIGHT NOT APPLY TO YOU.
G. You agree that GoPHR’s entire liability for all CLAIMS shall be limited, in the aggregate, to the lesser of (i) USD $500.00, or (ii) the total amount of money You paid to GoPHR in the one (1) year period immediately preceding the incident on which Your alleged claim is based. This limitation of liability shall apply for all CLAIMS, regardless of whether GoPHR was aware of or advised in advance of the possibility of damages or such CLAIMS.
H. The warranties and representations specifically set forth in this agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties hereto or by operation of law, including without limitation warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to You.
12. DISCLAIMER OF FORWARD-LOOKING STATEMENTS
THIS WEBSITE MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT OUR CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENT. THE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE OUR CONTROL.
13. EXCLUSION OF DAMAGES
WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEBSITE OR PRODUCTS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
14. YOUR REPRESENTATIONS
You hereby represent and warrant that You are age eighteen (18) or older and are of sufficient legal age to order any Products or Services or use or access the website, that You have read the Terms and Conditions constituting this Agreement and thoroughly understand the terms contained in this Agreement, that any Products and/or Services You purchase from the Website will be used for Your personal, non-commercial use, and that You will not re-sell, re-distribute or export any Product that You order from the Website. You further represent that GoPHR has the right to rely upon all information provided to GoPHR by You, and GoPHR may contact You by email, telephone or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) customer satisfaction surveys, and (iii) inquiries about any orders You placed, or considered placing, at or through the Website.
15. INTELLECTUAL PROPERTY
A. GoPHR’s Website. The Website and all of its contents including, but not limited to, articles, other text, photographs, illustrations, graphics, product names, designs, logos, other files, and the collection, arrangement, and assembly of all content (collectively, “the Intellectual Property”) are protected by copyright, trademark, and other laws of the United States, as well as international conventions and the laws of other countries. The Intellectual Property is the exclusive property of GoPHR or its licensors. No license or ownership rights in or to any of the Intellectual Property are conveyed to You by virtue of this Agreement or by Your purchase of any Product from the Website. The Intellectual Property is protected by the copyright and trademark laws of the United States. Unless otherwise permitted by law, none of the Intellectual Property may be reproduced or used by You without GoPHR’s prior written permission. You are responsible for ensuring that any material You provide to GoPHR or post at the Website, including but not limited to text, photographs and sound, does not violate the copyright, trademark, trade secret or any other personal or proprietary rights of any party, including without limitation GoPHR and its affiliates, and is posted with the permission of the owner(s) of such rights. Material on the Website is for Your personal use only. The Website contains copyrighted and other proprietary information, which remain solely and exclusively in the possession of the legal owners of such information. GoPHR may, in appropriate circumstances and at its sole and absolute discretion, suspend or terminate the access of and take other action against users, subscribers, registrants and account holders who infringe upon the intellectual property rights of others. You agree not to disrupt, modify or interfere with the Website, Products or Services or any associated software, hardware and/or servers in any way. In addition, You agree not to impede or interfere with others’ use of the Website and/or Products and Services. You further agree not to alter or tamper with any information or materials on or associated with the Website, Products and/or Services.
B. Trademarks. GoPHR and HealthFlash are trade names we own. The related design marks, and other trademarks on the Web Site are owned by us. Page headers, custom graphics, button icons and scripts are trademarks or trade dress we own. You may not display or use in any manner any of these trademarks, trade dress, or trade names without our express written permission.
C. Third Party Websites. GoPHR.com may contain links to other websites on the Internet that are owned and operated by third parties. We do not control the information, products or services available on these third party websites. The inclusion of any link does not imply our endorsement of the applicable website or any association with the website’s operators. Because we have no control over such websites and resources, You agree that we are not responsible or liable for the availability or the operation of such external websites, for any material located on or available from any such websites or for the protection of Your data privacy by third parties. Any dealings with, or participation in promotions offered by, advertisers on the Website, including the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between You and the applicable advertiser or other third party. You further agree that GoPHR is not responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings or promotions. You acknowledge and understand that GoPHR has not reviewed and does not endorse the content of all sites linked to from the Website and is not responsible for content or actions of any other sites linked from the Website. Your linking to any service or site is at Your sole risk.
D. Linking and Framing. You may not deep link to portions of the Website, or frame, inline link, or similarly display any of our property, including, without limitation, the Website. You may not use any of the GoPHR logos or other trademarks as part of a link without express written permission of an actually authorized agent and representative of GoPHR. Other than connecting to GoPHR’s servers by http requests using a Web browser, You may not attempt to gain access to GoPHR’s servers by any means, including without limitation using administrator passwords or masquerading as an administrator while using the Website and/or Products and/or Services or otherwise. No customer, user or third party (including without limitation You) may link to the GoPHR home page in such a manner as to create a reasonable possibility or likelihood of confusion by users of the third-party website as to the true ownership or sponsorship of the GoPHR Website and/or as to the existence or lack thereof of some affiliation or other relationship between GoPHR or HealthFlash and the third-party and/or its website. You agree not to upload, post, e-mail or otherwise transmit to the Website or to any other user, customer or account holder any messages, programs, or other materials (including without limitation Trojan Horses, viruses, worms and the like) that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or telecommunications equipment, whether or not in relation to the Website.
E. Comments. All comments, feedback, suggestions, ideas, and other submissions that You disclose, submit or offer to GoPHR in connection with Your use of the Website will become GoPHR’s exclusive property. Such disclosure, submission or offer of any comments shall constitute an unconditional assignment to GoPHR of all worldwide right, title and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the comments and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory. You will, at GoPHR’s cost and upon GoPHR’s demand, execute any documents to effect, record, or perfect such assignment. Thus, We will own exclusively all such right, title and interest and shall not be limited in any way in the use, commercial or otherwise, of any comments. You should not submit any comments to GoPHR if You do not wish to assign such rights to GoPHR. We are and will be under no obligation: (i) to maintain any comments in confidence; (ii) to pay to You or any third party any compensation for any comments; or (iii) to respond to any comments. You are and shall remain solely responsible for the content of any comments You make.
F. Domestic Use; Export Restriction. GoPHR controls the Web Site from offices within the United States of America. We make no representation that the Website or its content (including, without limitation, any products or services available on or through the Website) are appropriate or available for use in other locations. Users who access the Website from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded in violation of United States law.
16. LIMITATION OF ACTIONS
You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of, relating to, or connected with Your use of the Website, must be filed within one (1) calendar year after such claim or cause of action arises, or forever be barred. You hereby agree to waive any defenses associated with any other statutes of limitations.
The personal information You submit to GoPHR is governed by the GoPHR Privacy Statement. To the extent there is an inconsistency between this Agreement and the GoPHR Privacy Statement, this Agreement shall govern and take precedence, with the remainder of the GoPHR Privacy Statement to remain in full force and effect. Pursuant to GoPHR’s Privacy Statement, we may disclose to third parties certain aggregate information culled from Your Registration Data or related data for marketing and demographic purposes only, Such information will not include personally identifying information, except as specifically authorized by You or in the good faith belief that such action is reasonably necessary to comply with the law, legal process, or to enforce the Terms of Service. For more information, please see our full Privacy Statement.
18. TERMINATION OF AGREEMENT, ACCOUNT, AND/OR MEMBERSHIP
You agree that GoPHR, in its sole discretion, may terminate this Agreement, Your access to the Website, Your password, account (or any part thereof) or Your use of any of GoPHR’s Products, Services, or Website, and remove and discard any Content within any of GoPHR’s Products, Services, or Website, or refuse service to anyone for any reason, including, without limitation, if GoPHR believes that You have violated, breached or acted inconsistently with the letter or spirit of the Terms and Conditions or Privacy Statement, if GoPHR believes You are abusing the Products or Services GoPHR provides, or if You are unable to provide GoPHR with sufficient information to allow Us to properly identify the customer’s real name, address, or other contact information, without refund of any moneys paid. GoPHR may also in its sole and absolute discretion and at any time discontinue providing Products or Services, or any part thereof, with or without notice. You agree that any termination of Your access to any Product., Service, or Website under any provision of this Terms and Conditions may be effected without prior notice, and acknowledge and agree that GoPHR may immediately deactivate or delete Your account and all related information and files in Your account and/or bar any further access to such files or any of GoPHR’s Products, Services, or Websites. Further, You agree that GoPHR shall not be liable to You or any third-party for any termination of Your access to any of GoPHR’s Products, Services, or Websites. Following termination, You will not be permitted to use the Website and We may, in Our sole discretion, cancel any outstanding orders for Products or Services. If Your access to the Website is terminated, We reserve the right to exercise whatever means We deem necessary to prevent unauthorized access to the Website, including, but not limited to, technological barriers, IP mapping, and direct contact with Your Internet Service Provider. The Terms and Conditions and Privacy Statement will survive indefinitely unless and until We choose to terminate them, regardless of whether any account You open is terminated by You or Us or if You have the right to access or use the Website. You agree that GoPHR will not be liable in any manner to You or any third parties for any discontinuance or modification of the Website, Products or Services.
19. DOCUMENT RETENTION POLICY
Upon termination of Your Agreement with GoPHR for any reason and/or expiration of Your membership with GoPHR and/or cancellation of Your membership with GoPHR, GoPHR will retain any and all documents and records that You have stored, provided to, or uploaded with GoPHR for a period of six (6) months. You have the right to retrieve these documents during this time. After the expiration of this six (6) month period, GoPHR will delete and/or destroy all such documents and records and part of GoPHR’s ordinary course of business. If You cancel your account willingly, You will have the option at that time to have all of Your records deleted from our system permanently.
Any notice required to be given under this Agreement to You may be provided to You by postal mail or by email. If notice is sent by email, such notice shall be sent to the last known email address that You provided to GoPHR, and shall be deemed delivered once sent. Notices by customers to GoPHR must be sent in writing to the following address: GoPHR , Attn: Customer Service Department, P.O. Box 69384, Tucson, Arizona, 85737.
21. FORCE MAJEURE
GoPHR shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond GoPHR’s reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, or any other event, condition or cause that could be characterized as a force majeure event, for so long as such event continues to delay GoPHR’s performance. GOPHR SHALL NOT HAVE ANY LIABILITY TO YOU WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), EQUITY, OR ANY OTHER FORM OF LIABILITY FOR FAILING TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT TO THE EXTENT THAT SUCH FAILURE IS AS A RESULT OF A FORCE MAJEURE EVENT.
22. INDEMNITY You agree to defend, indemnify, and hold harmless GoPHR, its Website, affiliates, officers, directors, shareholders, employees, independent contractors, telecommunications providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including, but not limited to, reasonable legal and accounting fees, all limitations thereof under applicable law being waived and disclaimed to the extent permissible under applicable law, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your use, misuse, or inability to use the Website, or Your breach of any of these terms and conditions of this Agreement. GoPHR shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. If GoPHR does not hear from You promptly, GoPHR reserves the right to defend such claim or suit and seek full recompense from You. Without limitation of the foregoing, You may not settle, compromise, or any other manner dispose of any claim without Our express written consent.
23. DISPUTE RESOLUTION BY BINDING ARBITRATION
A. We Each agree To First Contact Each Other With Any Disputes. We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information, and the proposed resolution. You agree to contact Us with disputes by calling Us at (520) 413-5433, Mon-Fri: 9am – 5pm MST. or writing to Us at GoPHR , Attn: Claims Department, P.O. Box 69384, Tucson, AZ 85737. GoPHR will contact You by letter and electronic mail to Your billing address and contact information You provided Us. Prior to any dispute resolution under Subsection 23(B), below, there must be good faith efforts to settle any disputes, either informally or through mediation, for a period of not less than sixty (60) days.
B. Instead Of Suing In Court, We Each Agree To Arbitrate Disputes. We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in this Agreement, the Terms and Conditions, and the Privacy Statement, and can award the same damages and relief, including any attorney’s fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. We also each agree as follows: i) “Disputes” are any claims (including the definition of “claims” contained in the section Limitation of Liability and Disclaimer of Warranty above) or controversies against each other related in any way to this Agreement, the Terms and Conditions, the Privacy Statement, or Your purchase and use of the Product and/or Service. This includes claims You bring against Our affiliates, officers, directors, shareholders, employees, independent contractors, telecommunications providers, or agents or other representatives, or that GoPHR brings against You. ii) If either GoPHR or You want to arbitrate a dispute, We each agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. Notice to You will be sent to Your billing address that You provided Us and notice to Us will be sent to: GoPHR , Attn: Claims Department, P.O. Box 69384 Tucson, AZ 85737.
We each agree to make attempts to resolve this dispute within forty-five (45) days of receipt of the notice to arbitrate, then We may submit the dispute to formal arbitration. iii) The FAA applies to this Agreement and arbitration provision. We each agree that the FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration. iv) The arbitration will be administered by the National Arbitration Forum (“NAF”) under its arbitration rules. If any NAF rule conflicts with the terms of this Agreement, the terms of this Agreement apply. You can obtain procedures, rules, and fee information from the NAF at 1-800-474-2371 or www.adrforum.com. v) Unless We each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the state of Your last billing address. The federal or state law that applies to the Agreement will also apply during the Arbitration. vi) Both You and GoPHR each agree not to pursue arbitration on a consolidated or class wide basis. Both You and GoPHR each agree that any arbitration will be solely between You and GoPHR (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator hold that this restriction in unconscionable or unenforceable, then this agreement to arbitrate does not apply and the dispute must be brought in court. vii) We each are responsible for Our own costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. However, GoPHR will cover any arbitration administrative or filing fee above: (a) $25 if You are seeking less than $1,000 from GoPHR; or (b) the equivalent court filing fees for a court action in the appropriate jurisdiction if You are seeking $1,000 or more from Us. viii) Notwithstanding the foregoing, GoPHR will have the right to seek injunctive or other equitable relief in state or federal court located in Tucson, Arizona to enforce the Terms and Conditions or prevent an infringement of a third party’s rights. In the event equitable relief is sought, both GoPHR and You hereby irrevocably submit to the personal jurisdiction of such court.
C. No Class Actions. TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
D. No Trial By Jury. TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
24. GOVERNING LAW
You agree that this Agreement and any issue or dispute arising out of or otherwise related to this Agreement or with Your use of our Website, Intellectual Property, the Terms and Conditions, the Privacy Statement, or any matter concerning GoPHR shall be governed exclusively by the laws of the State of Arizona, excluding its conflict of law provisions, and by Federal law as applicable in the State of Arizona.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, the Terms and Conditions, the Privacy Statement, or any portion thereof, to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of the Agreement, the Terms and Conditions, and the Privacy Statement will continue in full force and effect.
26. NO WAIVER
No waiver of or by GoPHR shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
28. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Website and Your ordering and use of the Products, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matters.
29. BINDING ON SUCCESSORS; ASSIGNMENT
This Agreement will be binding upon each party hereto and its successors and permitted assigns. This Agreement and all of Your rights and obligations under them may not be assignable or transferable by You without Our prior written consent. GoPHR, at its sole discretion, may freely transfer or assign this Agreement or any of its obligations thereunder. LAST MODIFIED: May _____, 2012