Last revised on: September 24, 2012
1. Member eligibility & accounts.
o Eligibility. By using the Site, You represent and warrant that:
§ You are at least 18 years old;
§ You are and will continue to be a United States citizen and/or a person legally authorized to work in the United States;
§ You have the right, authority and capacity to enter into this Agreement;
§ You will abide by all the terms and conditions of this Agreement;
§ neither You, nor anyone in Your household (A) has been the subject of a complaint, restraining order or any other legal action, arrested for, charged with or convicted of any criminal offense or (B) has been and/or is currently required to register as a sex offender in any jurisdiction or with any governmental entity.
2. MEMBER VERIFICATION.
o Member Verification by Members. You are responsible to make Your own decision regarding the other Members that You engage through the Site. CareSimply may make a third-party verification service available to Members. Members may use this service to verify information of other Members such as, but not limited to, name, address, social security number, and criminal background. Use of a third-party verification service is voluntary. If You decide to use or access information provided by a third-party verification service offered through the Site, You do hereby represent, understand and expressly agree that CareSimply is a conduit for the third-party verification service and does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information provided by the third-party verification service. In addition, You understand that CareSimply may review the information provided by the third-party verification service. If You use the third party verification service, and such verification is governed by the Fair Credit Reporting Act (the "FCRA"), You represent and warrant that You will comply with the FCRA, which can be found at http://www.ftc.gov/os/statutes/fcrajump.shtm. CareSimply expressly disclaims any and all liability that may result from the use of the information provided by the third party verification service. CareSimply expressly disclaims, and You expressly release CareSimply from, any and all liability whatsoever for any controversies, claims, suits, injuries and/or damages arising from and/or in any way related to (a) any misstatements and/or misrepresentations made by any Member or (b) THE ACCURACY, TIMELINESS OR COMPLETENESS OF ANY BACKGROUND CHECK provided to you in connection with the site or the services.
o Optional Member Verification by CareSimply. You understand and agree that CareSimply has the right, but not the obligation, to independently verify any statement made by any Member on the Site or verify that any Member meets any of the eligibility criteria set forth above. In the event that CareSimply chooses to verify the representations and warranties or any information provided by You through Your use of the Site, You hereby authorize CareSimply, either directly or through our vendors or service providers, to attempt to verify such information, which verification may include, without limitation, conducting criminal background checks, sex offender registry checks, motor vehicle records checks, identification verifications, credential verification checks, credit checks and/or using available public records. You consent to any collection, use or disclosure in order to accomplish such verification.
3. CareSimply is a Venue. The Site is a venue designed to connect home care providers ("Care Providers") with care seekers and their families looking for home care services ("Care Seekers"). CareSimply does not provide or arrange for home healthcare services. CareSimply does not participate in the interaction between Care Providers and Care Seekers except to process payments on behalf of Care Seekers. CareSimply does not provide any healthcare billing services. Any disputes related to the services received by Care Seeker or payment due to Care Provider must be resolved directly between Care Seeker and Care Provider. You understand and agree that CareSimply has no control over and is not responsible for the acts or omissions of any Members on or off the Site. You also understand and agree that CareSimply makes no representation or warranty regarding the quality of any services provided by any Member. CareSimply is not responsible for the accuracy or reliability of any information provided by any Member on the Site.
4. CARESIMPLY EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY RELEASE CARESIMPLY FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY DAMAGES, SUITS, CLAIMS AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE FROM AND/OR IN ANY WAY RELATE TO ANY ACTS OR OMISSIONS OF MEMBERS ON OR OFF THE SITE, INCLUDING WITHOUT LIMITATION THE PROVISION OF ANY CARE SERVICES BY ANY CARE PROVIDER.
6. Rules Regarding Information and other Content. When You access the Site and/or Services, You obtain access to various kinds of information and materials, all of which we call "Content." Content includes information and materials posted to the Site or through the Services by You and other Members. You are entirely responsible for each individual item of Content that You post, email or otherwise make available on the Site or the Services. As between You and us, You retain ownership and any intellectual property rights in any copyrighted materials that are contained in Content that You post to the Site or through the Services. You grant us a non-exclusive, royalty-free, fully paid, fully sublicenseable, worldwide license, under any and all of Your copyright and other intellectual property rights related to that Content. You agree that any such Content or any derivative works thereof, may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by us, and searched, displayed, printed or otherwise used or exploited by our Visitors and Members. You agree not to revise Content posted by others, and You represent and warrant that You will not post or use any Content in any manner that:
o Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
o Violates the privacy, publicity, or other rights of third parties, including other Members;
o Violates any law, statute, ordinance or regulation, including laws regarding anti-discrimination and false advertising;
o Is false or inaccurate or becomes false or inaccurate at any time;
o Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
o Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
o Misrepresents Your identity in any way;
o Contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
o Contains any advertising or solicitation for anything other than home care services offer through the Site;
o Advocates or encourages any illegal activity; or
o Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
8. General Rules of User Conduct. It is our goal to make access to our Site and Services a good experience for Visitors and all of our Members. Correspondence between Members is for the sole purpose of connecting Care Seekers, Care Providers and other Members for purposes relating to a Care Seeker"™s home care. If You receive the personal information of any other Member through the use of the Services, You may use the information solely as necessary to conduct a transaction through the Site and Services. You may not use another Member"™s personal information for any other purpose. You agree not to, and represent and warrant that You will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use of the Site or Services or access to the Site or Services for any purposes other than for which the Site or Services are being provided to You, or do any of the following:
o Recruit, solicit or contact any Member for employment or contracting for a business not affiliated with CareSimply;
o Harass, intimidate or otherwise engage in illegal or offensive behavior with respect to any other Member;
o Conduct or promote any illegal activities while using the Site or Services;
o Upload, distribute or print anything that may be harmful to minors;
o Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
o Attempt to gain access to secured portions of the Site or Services to which You do not possess access rights;
o Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
o Use the Site or Services to generate unsolicited email advertisements or spam; allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam);
o Use the Site or Services to stalk, harass or harm another individual;
o Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
o Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
o Use any robot, spider, other automatic device, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission; and CareSimply reserves the right, in its sole discretion, to terminate Your use of the Site or assess a $10,000 daily penalty fee for violation of this provision;
o Impersonate any person or entity, or otherwise misrepresent Your affiliation with a person or entity; or
o Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
9. PAYMENTS. The Site and certain basic Services of CareSimply are free for Members. By using our Services, Care Seeker agrees to pay CareSimply at the fees then in effect unless specifically notified otherwise. CareSimply reserves the right, at any time, to modify its fees and/or billing methods. In exchange for the Services, Care Seeker authorizes CareSimply to deduct the then-current fee from all payments processed by CareSimply or a third party service provider on Care Provider"™s behalf. If Care Seeker uses our Services, then:
o When a Care Seeker is ready to make an offer to a Care Provider, it will provide the following information through the Site: (1) information regarding the type of care and services requested to be provided by the Care Provider; (2) personal information and (3) Its bank name, bank routing number, bank account number, the type of account;
o In addition, as part of the making an offer to a Care Provider, each Care Seeker must consent to the payment of CareSimply service fees, tax withholding and payroll deductions in connection with the employment of the Care Provider;
o In order to accept an offer from the a Care Seeker, the Care Provider must provide the following information through the Site: (1) information regarding the type of care and services the Care Provider is qualified to provide; (2) personal information and (3) Its bank name, bank routing number, bank account number, the type of account;
o After an offer by a Care Seeker is accepted by the Care Provider, the employment of the Care Provider by the Care Seeker will begin;
o At the end of each billing period, an invoice is created for each Care Seeker to whom the Care Provider provided care during such period;
o Each invoice is made available to the applicable Care Seeker through the Site;
o The Care Seeker reviews the invoice and, if approved, pays the invoice;
o Upon CareSimply's receipt of (i) approval of the invoice from Care Seeker, (ii) bank account information to pay the invoice from Care Seeker and (iii) authorization from Care Seeker for CareSimply or its service provider to deduct payment from Care Seeker"™s bank account for the invoiced payment amount, then CareSimply, or a third party service provider, will (i) deduct payment from the Care Seeker's bank account for the approved amount and (ii) deposit the amount charged less the applicable CareSimply fee, tax withholdings and other deductions into a CareSimply merchant account.
o The Care Seeker payments (less the applicable CareSimply fees, tax withholdings and other deductions) will accrue in a CareSimply merchant account until the Care Provider elects to withdraw the funds.
o Upon Care Provider's election to withdraw the funds from the CareSimply merchant account, the funds will be directly deposited into Care Provider's bank account according to the bank details provided by Care Provider.
o Subject to Care Seeker's proper authorization, Care Seeker's bank account will be automatically deducted in subsequent billing periods upon Care Seeker's approval of each invoice or the expiration of the review period.
10. Each Care Provider and Care Seeker is solely responsible for the accuracy of his or her bank account details, including Care Provider"™s or Care Seeker"™s bank account number and bank routing number. CareSimply expressly disclaims all liability related to errors in fund deposits due to inaccurate or incomplete bank details submitted by Care Provider and/or Care Seeker.
11. CareSimply is not responsible for and will not reimburse any fees incurred by Care Provider or Care Seeker from their bank or other financial institution, including without limitation overdraft charges, insufficient funds charges, interest charges, or finance charges, which may have occurred as a result of charges billed by CareSimply.
12. CareSimply reserves the right to correct any errors in the payment of CareSimply fees even if it has already requested and/or received payment. Care Seeker will remain responsible for the CareSimply fee and any other applicable fees in connection with any refund or chargeback of a Care Provider"™s payment.
13. CareSimply may use third party payment processing services to process bank account information and ACH transfers. CareSimply expressly disclaims any and all liability for any claims or damages related to CareSimply"™s use of third party payment processing services and ACH transfers, including without limitation any damage that may result should any such information be released to any third parties.
14. All payments relating to services provided by a Care Provider to a Care Seeker must be made through the payment channels provided or specified by CareSimply. No Care Seeker may make any payments directly to a Care Provider through any other payment channels. Any action that encourages or solicits complete or partial payment outside of the CareSimply system is a violation of this Agreement. Should a Care Provider be found in violation of this section of this Agreement, it will owe CareSimply fees equal to the greater of a) $2,500; or b) the applicable fees had the payments been processed through the CareSimply system plus 18%. You shall immediately notify CareSimply if another Member requests that payment be made directly or through any channels other than those provided or specified by CareSimply.
15. For the avoidance of doubt, no Care Provider may make any claim for reimbursement from any third party payer, including any private or governmental insurance provider, in connection with the services provided to any Care Seeker by such Care Provider.
16. TEXT MESSAGES. CareSimply may send Members SMS text messages in connection with the Services or otherwise. Receipt of the SMS text messages from CareSimply is voluntary. By deciding to receive SMS text messages from CareSimply, You give CareSimply express permission to send SMS text messages to Your cellular phone and/or mobile device. Additionally, You do hereby represent, understand and expressly agree that CareSimply does not have control over or assume any responsibility for the quality, accuracy, or reliability of this Service. Carrier charges may apply for receiving SMS text messages. You are solely responsible for any costs You incur when receiving SMS text messages from CareSimply.
17. NO PROFESSIONAL ADVICE. All information, materials, content and/or advice on the Site or provided through the Services is for informational purposes only and is not intended to replace or substitute for any professional, financial, medical, legal or other advice. CareSimply expressly disclaims, and You expressly release CareSimply from, any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Site. You should consult with an appropriately trained specialist for all concerns that require professional or medical advice.
18. PROMOTIONAL OFFERS. We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any time.
19. MODIFICATIONS TO THE SITE OR SERVICES. We reserve the right to modify or discontinue the Site or Services with or without notice to You. We will not be liable to You or any third party should we exercise our right to modify or discontinue the Site and/or Services. If You object to any such changes, Your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate Your acknowledgement of such changes and satisfaction with the Site or Services as so modified.
21. SUSPENSION/TERMINATION. You agree that we, in our sole discretion, may immediately suspend or terminate Your access to the Site and Services at any time, for any reason, without notice or refund. YOU AGREE THAT CARESIMPLY, LLC WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES OR DELETION OF YOUR ACCOUNT OR YOUR CONTENT. SUSPENSION OR TERMINATION OF YOUR ACCOUNT WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED THROUGH YOUR USE OF THE SITE OR ANY SERVICES, WHETHER SUCH OBLIGATION IS TO CARESIMPLY, LLC OR A THIRD PARTY.
22. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND/OR SERVICES IS AT YOUR SOLE RISK. BOTH THE SITE AND SERVICES ARE PROVIDED BY US ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE SITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION.
24. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST REAL ESTATE OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR SERVICE PROVIDERS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT OR SERVICE PROVIDER SITES OR ANY OTHER SITE LINKED TO OUR SITE. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY ACT OR OMISSION OF ANY MEMBER. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN THE AGGREGATE, TO FIFTY DOLLARS (U.S. $50.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to You. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
25. We reserve the right, but have no obligation, to monitor, or take any APPROPRIATE action regarding, disputes that You may have with MEMBERS, service providers or other customers.
26. Without limiting the foregoing, under no circumstances WILL WE or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.
28. COPYRIGHT VIOLATIONS. We respect the intellectual property of others, and we ask You to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:
o An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
o a description of the copyrighted work that You claim has been infringed;
o a description of where the material that You claim is infringing is located on the Site or Services;
o Your address, telephone number, and email address;
o a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
o a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
29. Our Copyright Agent for notice of claims of copyright infringement on the Site or Services can be reached by directing an e-mail to email@example.com.
31. NO THIRD PARTY BENEFICIARIES. You understand and agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
32. NO AFFILIATION. You acknowledge that You are not legally affiliated with CareSimply in any way, and no independent contractor, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by Your use of the Site or Services or by this Agreement. CareSimply is not an employment service or agency and does not secure employment for Members.