CAREOFF, INC. – CARE FACILITY OPERATOR (“PROVIDER”)
STAFFING ASSISTANCE AGREEMENT
Last update: October 16, 2019
This Staffing
Assistance and Technology Services Agreement (“Agreement")
constitutes a legal agreement between you ___________________________________,
a provider (“Provider”) of care facility services within one or more
residential facilities of a group-home, dormitory, or other nature
(collectively, “Care Facilities”), and CareOff, Inc. (“CareOff"), a corporation that provides software and a mobile
platform that can be used by Providers in two ways: 1) To more efficiently
utilize their own staff of Caregivers; or 2) to fill unexpected staffing
shortfalls by streamlining the process of finding and obtaining the services of
CareOff’s staff of immediately available Caregivers (“Professionals”) who can
meet Care Facility staffing needs as they arise.
Your relationship with
CareOff involves two separate yet related legal issues, each of which is
governed by the terms of this Agreement:
1) The terms and
conditions of your use of the CareOff Software and CareOff Services, whether to
assist in managing your own staff of Caregivers or to fill your staffing needs
with Professionals (Caregivers made available to you by CareOff), all as is
defined and discussed below within this Agreement; and
2) The terms and
conditions of your relationship with CareOff – including payment terms – and
with Professionals employed by CareOff who you decide to retain via the CareOff
Software to meet your Care Facility staffing needs.
CareOff provides a mobile platform that enhances work opportunities for Professionals, particularly on a per diem or short-term basis, while simultaneously giving to Providers of Care Facility services a reliable means of fulfilling their staffing needs.
CareOff provides this service via its proprietary software (the “CareOff Software”), which enables CareOff to provide the “CareOff Services” (as defined below). The CareOff Services reduce the transaction costs Professionals experience in finding available work shifts at a Care Facility when Professionals find themselves ready and willing to work but not having an opportunity immediately available. The CareOff Services simultaneously reduce the transaction costs Providers would otherwise encounter in finding available and capable Professionals when, unexpectedly or otherwise, a Provider needs additional Professionals to staff its Care Facility.
The CareOff Services enable an authorized Professional to seek, receive and fulfill requests for Care Facility services from an authorized user of CareOff's Care Facility staffing applications. You desire to enter into this Agreement for the purpose of accessing and using the CareOff Services.
Division of Employer Responsibilities: You acknowledge and agree that, while CareOff will be the employer of any Professional who you retain via the CareOff Software to provide services at your Care Facility for purposes of payment of that Professional’s wages, CareOff’s role as an employer is limited to financial aspects of a Professional’s employment including the payment of (in addition to wages) payroll taxes and associated regular costs associated with employing an employee. By using the CareOff Software to retain the services of a Professional, you acknowledge and agree that you, as the Provider of Care Facility services, will act as the Professional’s Worksite Employer and will control the actual details of the Professional’s work at the Care Facility, including all issues involving supervision of work, the details of assigned tasks, and the safety of the work environment. This division of employer responsibilities is set forth in greater detail within Section 2.3 below.
In order to use the CareOff Services, you must agree to the terms of this Agreement. Upon your execution (electronic or otherwise) of this Agreement, you and CareOff shall be bound by its terms.
IMPORTANT: PLEASE NOTE THAT TO USE THE CAREOFF SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW.
BY
VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING
THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING
THE DISPUTE RESOLUTION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE
CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
1.1 “Affiliate" means an entity that, directly or indirectly, controls, is under the control of, or is under common control with CareOff, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2
“Caregiver” means a person who provides personal care and
supervision to residents of Care Facilities, whether as an employee of the
owner or operator of that Care Facility or as a temporary employee such as a
Professional who can be retained via the CareOff Services.
1.3 “CareOff Data" means all data related to the access and use of the CareOff Services hereunder, including all data related to Providers (including Provider Information), all data related to the provision of Care Facility services by Professionals via the CareOff Services and the CareOff Software, and the Provider ID.
1.4 “CareOff Software" means the software, as may be updated or modified from time to time, whether accessed via a mobile application or a traditional computer program, that enables Professionals to access the CareOff Services for the purpose of seeking, receiving and fulfilling on-demand requests for Care Facility Services by Providers and enables Providers to make such requests for Care Facility Services.
1.5 “Provider ID" means the identification and password key assigned by CareOff to you that enables you to use and access the CareOff Software.
1.6 “Wage" has the meaning set forth in Section 4.1.
1.7 “CareOff Fee" has the meaning set forth in Section 4.4.
1.8 “Territory" means the city or metro areas in the United States in which any requests for Care Facility services posted by you via the CareOff Software will be shared via the CareOff Software with Professionals within that same territory.
1.9 “Care Facility services" means a Professional’s provision of Professional services, including assisting in the direct care of residents of Care Facilities, to Providers via the CareOff Services.
1.10 “CareOff Services" mean CareOff's on-demand staffing opportunity generation and related services licensed by CareOff that enable Providers to meet its staffing needs by seeking Care Facility services by Professionals and permits Professionals to fulfill such Provider staffing needs. The CareOff Services include access to the CareOff Software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.11
“Professional
Profile” means an online summary
of the Background Information (as defined and discussed in Section 3 below) a
Professional has provided to CareOff, an overview of that Professional’s
ratings (as discussed and defined in Section 2.5 below), and related
information concerning that Professional’s qualifications as a care giver that
is made available to Providers while the Professional has the CareOff Software
on (indicating the Professional’s receptiveness to Service Requests from
Providers such as you). As a Provider
with access to Professional’s Profiles, you understand that a Professional
Profile includes a summary of the contents of Background Information that, like
any summary, is not as detailed as the source documents and may contain some
inaccuracies. Should you be interested
in directing a Service Request to a particular Professional, you have the
ability to first access the actual Background Information so you can make your
own assessment of how well the Professional matches your needs. If you notice a discrepancy between a
Professional Profile and the Background Information, please bring that immediately
to the attention of CareOff by sending an email to hr@careoff.com with the subject line “Professional Profile Complaint.”
In your email, please identify the
Professional and what you believe to be erroneous about the Professional’s
Profile or Background Information.
CareOff will promptly review the situation and take appropriate
corrective action where needed. YOU
EXPRESSLY AGREE THAT YOU WILL ACCESS A PROFESSIONAL’S PROFILE OR BACKGROUND
INFORMATION SOLELY FOR THE PURPOSES OF CONSIDERING WHETHER TO EXTEND A SERVICE
REQUEST TO THAT PROFESSIONAL, AND YOU WILL ONLY SHARE THE PROFESSIONAL PROFILE
OR BACKGROUND INFORMATION FOR THAT SAME PURPOSE WITH PEOPLE WHO LIKEWISE AGREE
TO LIMIT THEIR USE OF THIS INFORMATION TO THAT PURPOSE.
1.12 “Provider" means you, the operator of a Care Facility that has been authorized by CareOff to use the CareOff Software or other CareOff Services.
1.13 “Professional’s Information" means all information, including the Professional’s Profile and Background Information (as defined in Section 3 of this Agreement) made available to you to assist you in determining whether to extend a Service Request to a Professional.
1.14 “Your Device" means a mobile device or computer owned or controlled by you on which the CareOff Software has been installed as authorized by CareOff solely for the purpose of providing or requesting Care Facility services.
1.15 Other definitions are set forth in quotation marks in context and where relevant within this Agreement. Those definitions apply throughout the Agreement.
2. Use
of the CareOff Services.
2.1 Provider IDs. CareOff will issue you a Provider ID to enable you to access and use the CareOff Software on a Device in accordance with this Agreement. You agree that you will maintain your Provider ID in confidence and not share your Provider ID with any third party. You will immediately notify CareOff of any actual or suspected breach or improper use or disclosure of your Provider ID or the CareOff Software. CareOff aims to develop a regular, mutually beneficial relationship with you. Nonetheless, given that there is no set term for this independent contractor relationship between you and CareOff, you are free to deactivate your Provider ID and cease use of the CareOff Software for any reason or no reason at all.
2.2 Use of the CareOff Software to obtain Professional Care Facility services. As a provider with access to the CareOff Software, whenever you determine that your Care Facility will soon be in need of Care Facility staffing services (whether because of an unexpected employee absence, illness, or for another reason) you may use the CareOff Software to view a list of Professionals who are using the CareOff Software to indicate their possible availability to work a shift at a Care Facility. If you see a Professional you would like to request fill your staffing need, you can simply use the CareOff Software to post a request (“Service Request”) that the chosen Professional perform the requested Care Facility services. A Service Request must be filled out completely (this includes the name of the Provider, type of Professional Services requested, start date and time of work shift, end date and time of work shift, and hourly compensation you are requesting CareOff pay to the Professional). When a requested Professional indicates his or her acceptance of the Service Request, an “Accepted Request” will exist.
To provide you with additional piece of mind that your staffing needs will soon be met, the CareOff Software includes a Geo Locating function that permits you to track and confirm the Professional’s physical movement to your Care Facility to perform the requested shift. If you need to cancel an Accepted Request and do so less than one hour before the scheduled start time of the Professional’s shift, the Professional will be entitled to a late cancellation payment equal to the greater of three hours or half of the scheduled shift’s duration at the requested rate. By making such a late cancellation you agree to reimburse CareOff for this late cancellation payment and all other costs caused by the late cancellation.
2.3
Your Worksite Employer Relationship with Professionals.
You acknowledge and agree that, with regard to any Professional who works at
your Care Facility pursuant to an Accepted Request, while the Professional will
be paid by CareOff as its employee, as the operator of the Care Facility at
which the Professional will work you will be the Professional’s “Worksite
Employer.” As the Worksite Employer, you are responsible for all the conditions
of the Professional’s work during a work shift, including:
work assignments, tasks, supervision, safety conditions, work breaks, and
setting and confirmation of work start and end times. You understand that
Professionals are not required to provide any equipment as part of their
provision of services, and therefore should a Professional need to perform any
driving services you are responsible for providing the Professional with a safe
and appropriate vehicle for that driving task.
2.4 Your Relationship with CareOff and its Limits. You acknowledge and agree that CareOff's provision to you of the CareOff Software and the CareOff Services creates a direct contractual business relationship between CareOff and you but each shall remain independent entities and do not by this Agreement or otherwise form a partnership or similar joint venture or relationship.
CareOff does not, and shall not be deemed to, have the ability or right direct or control Professionals retained by your via the CareOff Software in their performance of Care Facility services wherever those services may be performed for you, including in connection with all aspects of the immediate conditions of their work under your supervision at your Care Facility.
You retain the sole right to determine when, where, and for how long you will utilize the CareOff Software or the CareOff Services. You retain the sole right to determine what Professionals you invite to perform services at your Care Facility via a Service Request. You retain the option, via the CareOff Software, to cancel an Accepted Request for Care Facility services, subject to CareOff's then-current cancellation policies as are presently set forth in Section 2.3 of this Agreement.
2.5 Ratings of You and Professionals.
2.5.1 You acknowledge and agree that: (a) after receiving Care Facility services from a Professional, you as a Provider will be prompted by the CareOff Software to provide a rating of the utilized Professional and such Care Facility services and, optionally, to provide comments or feedback about the Professional and the Professional’s provision of such Care Facility services; and (b) after providing Care Facility services, the Professional you retained will be prompted by the CareOff Software to provide a rating of you as the Provider and, optionally, to provide comments or feedback about you as the Provider. You shall provide your ratings and feedback in good faith. If you believe a Professional, during the course of providing you with Care Facility services or otherwise, has violated any anti-discrimination law, safety law, law concerning treatment of residents, or other law, you should not simply rely on this rating system but rather should immediately notify/complain to the Professional directly and also immediately notify CareOff – and, if advisable in your judgment – appropriate law enforcement or related authorities.
2.5.2 You acknowledge that past ratings about you – but not past comments about you – will be visible to Professionals who are seeking to provide Care Facility services to Providers via the CareOff Software, just as before you decide whether to direct a Service Request to a Professional you will have access to that past ratings – but not past comments – concerning that Professional.
2.5.3 CareOff and its Affiliates reserve the right to use, share and display all
ratings and comments – without personally identifying you or any other Provider or Professional – in any manner in connection with the business of CareOff and its Affiliates without either attribution to you or your approval. You acknowledge and agree that CareOff and its Affiliates are distributors (without any obligation to verify) and not publishers of all ratings and comments, provided that CareOff and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual's name or other personal information, or violate any privacy laws (including but not limited to any health care information protected from disclosure by the Health Insurance Portability and Accountability Act (HIPAA) of 1996), other applicable laws or a Provider’s, CareOff's, or an Affiliates' privacy and other content-related policies.
2.6 Devices.
2.6.1 In order to use the CareOff Services you must own and possess Your Device.
2.6.2 In utilizing Your Device in conjunction with the CareOff Service: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) CareOff shall make available the CareOff Software for installation on Your Device. CareOff hereby grants you a personal, non-exclusive, non-transferable license to install and use the CareOff Software on Your Device solely for the purpose of requesting and providing Care Facility services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the CareOff Software (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate, and you will delete and fully remove the CareOff Software from your Device, in the event that you cease to provide Care Facility services. You agree that use of the CareOff Software on Your Device requires internet access as provided by you – and, should Your Device be a mobile device, an active data plan with a wireless carrier, which data plan will be provided by you at your own expense. CAREOFF ADVISES THAT, FOR A MOBILE DEVICE, YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND CAREOFF SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
2.7 Location Based Services. CareOff provides location-based services so that Providers can have the peace of mind of knowing that a Professional who has agreed to work a shift is on the way to the Care Facility.
After a Professional has agreed to work in response to your Service Request, creating an Accepted Request, you will be able to track the location of that Professional beginning one (1) hour prior to the start time for the shift at your Care Facility. This geo-location tracking is designed so that you can be assured via updates on the Professional’s location that the Professional is in route for a timely arrival and Check-In at your Care Facility – or, in the unlikely event the Professional is not proceeding to your Care Facility, you will know and can plan accordingly.
You acknowledge and agree that you will not use this geo-location information for any use other than as set forth in this Section 2.7. You also agree that any such other use might constitute an actionable privacy violation, as CareOff has agreed with Professionals that it and Providers will only track a Professional’s geo-location for that purpose and will not otherwise track a Professional, such as while the Professional is performing a work shift for a Provider. CareOff’s agreement with Professionals also allows for emergency tracking: CareOff has reserved the right to track and share with third parties, such as law enforcement authorities and other public safety officers, geo-location information as obtained by the CareOff Software and Device if a safety or security issue arises.
3. Licenses and background checks of Professionals, including criminal offender reporting services.
3.1 Vehicle Operator’s License and use of Vehicles will providing Care Facility services. CareOff will annually confirm that all Professionals possess a valid operator’s license for operation of a passenger vehicle. Professionals are not permitted to use their own vehicle as an aspect of providing Care Facility services. You agree that, should you require that a Professional operate a motor vehicle as part of your requested Care Facility services: A) You will provide your own vehicle for that purpose and will be responsible for any charges, expenses, or liability associated with the Professional’s operation of your vehicle; and B) Before permitting the Professional to operate your vehicle, you will confirm that the Professional’s driver’s license is valid at that time and for that class of vehicle.
3.2 Driving/Background/Criminal Offender checks. CareOff will, upon a Professional’s initial registration with CareOff via the CareOff Software and every second year thereafter, perform certain background and driving record checks on Professionals. The CareOff Software makes the actual results of these background checks – copies of whatever reports are received from applicable authorities by CareOff – available to you so that before you make a Service Request you can determine whether a particular Professional will meet your Care Facility’s particular staffing needs. These background checks shall include a check of available criminal offender records, such as a Massachusetts Criminal Offender Record Information (“CORI”) search.
3.3 Documentation Required of Professionals and Available to You. To ensure Providers have accurate information about Professionals listed on the CareOff Software, Professionals must: a) Provide CareOff with written copies of all such licenses, permits, approvals, authority, registrations and certifications; and b) Authorize CareOff to obtain a copy of the Professional’s driving history and perform a criminal offender records check prior to the Professional being permitted to provide Care Facility services via the CareOff Software and on the intervals set forth in sections 3.1 and 3.2 in order for the Professional to be permitted to continue to provide Care Facility services via the CareOff Software. In addition, Professionals must submit to CareOff written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. CareOff shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and a Professional’s failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. CareOff reserves the right to independently verify a Professional’s documentation from time to time in any way CareOff deems appropriate in its reasonable discretion.
4. Your Control over the Financial Terms of retaining a Professional via the CareOff Software.
The CareOff Software not only provides you control over what Professional you retain to fulfill your staffing needs, but also provides you control over that Professional’s wage rate and transparency as to the total amount you will have to pay to CareOff to obtain that Professional’s help.
4.1 Setting a Professional’s Wage. When you send to a Professional a request for services (“Service Request”) the Service Request will include the hourly wage rate (“Wage”) you are willing to pay. If that Professional accepts the Service Request, an Accepted Request exists pursuant to which CareOff will pay that Wage, minus appropriate withholdings, to the Professional upon the Professional’s completion of the requested work. CareOff, as the Professional’s employer for payroll purposes, will also pay the employer’s share of FICA (social security and Medicaid) taxes and other payroll-related costs including Workers’ Compensation insurance premiums, unemployment insurance contributions, and any other state or federal taxes or costs that are normally associated with being an employer for payroll purposes (collectively, “Payroll Costs”).
4.2 CareOff’s Compensation for Providing the CareOff Services – the CareOff Fee”. In return for CareOff providing you the Professional and paying the professional’s Wage and Payroll Costs, you agree to pay CareOff the “CareOff Fee”, which is an amount equal to 140% of all Wages earned by that Professional for performing work pursuant to a Service Request made by you during the most recently completed weekly pay period.
4.3 Professionals are entitled to No Benefits from Provider, except as may be Required by Law. As a condition of using the CareOff Software, Professionals have agreed that they are not entitled to and will not seek from a Provider such as you any benefits offered or provided by the Provider to its own direct employees, including holiday pay, vacation pay, disability insurance, health care insurance or premium contributions, and retirement or 401K plans, unless it is determined that such a payment is required by law. CareOff makes no representations concerning what benefits a law authority might ultimately determine should be paid directly by a Provider notwithstanding that CareOff is a Professional’s employer for payroll purposes, as set forth in this Agreement and the Master Services Agreement.
4.4 Disputes Over Wages. CareOff has designed the CareOff Software and CareOff Services to minimize the potential for disputes over the total amount of wages earned by Professionals during any Work Week. If you believe the CareOff Fee you have paid is based on an improper hourly Wage or total number of hours worked or otherwise dispute the CareOff Fee, you should notify CareOff immediately. While CareOff will always strive for accuracy in its billing practices, your failure to notify CareOff of an Invoice Complaint in the time and manner set forth in Section 4.3 above may constitute a waiver of your right to any adjustment of your CareOff Fee.
4.5 CareOff is a Professional’s Employer only for hours scheduled via the CareOff Software. Professionals are free to work for other employers, including directly for a Care Facility. CareOff is only a Professional’s employer – and therefore will only make the payments and charge the fees set forth in this section 4 – for hours a Professional works pursuant to an Accepted Request as scheduled and worked by using the CareOff Software.
4.6 No Circumventing the CareOff Software. To ensure CareOff is fairly compensated for the services it provides via the CareOff Software, you agree that should you make a Service Request to a Professional you will not seek to bypass payment of the CareOff fee by arranging to directly pay the Professional for the shift hours set forth in that Service Request, as doing so would be a violation of this Agreement that could result in termination of your right to use the CareOff Software and potential civil liability to CareOff.
5. Internal Staff Management: Licensing the CareOff Software to Manage Your own Caregiver Staff.
This section of the Agreement sets forth the terms by which you, as a Provider, may activate the CareOff Software’s Internal staffing solution (“Internal Function”) the same CareOff Software that enables you to use CareOff’s Professionals to fill your staffing needs can be used to help schedule and otherwise manage your directly employed Caregiver staff.
5.1 Included services. The Internal Function allows you to manage your own Caregiver staff’s schedule, either for the purpose of filling unexpected staffing needs at your Care Facility or for regular staff scheduling purposes. The Internal Function allows you to use Your Device to make Service Requests (as discussed for Professionals in Section 2.2) to Caregivers you directly employ in the same manner as you would to obtain the services of Professionals (Caregivers directly paid by CareOff) with two important exceptions: You will directly pay these members of your own staff and therefore will not have to set a proposed wage (as your employees already have a set wage rate), and you will not owe the CareOff Fee set forth in Section 4.3. You will be able to use the same geo-location functionality (as discussed for Professionals in Section 2.7) to track a Caregivers physical progress to your Care Facility within one hour of a shift’s scheduled start time. You and your direct-employee Caregivers will be able to use all of the ratings functionality set forth in Section 2.5 so you both can benefit from the nearly real-time feedback that this provides. And, you will be able to track the hours worked of your own staff on a daily, weekly, monthly, or yearly basis.
5.2 Excluded Services. Because the Internal Function works with Caregivers who you directly employ, by activating the Internal Function you are in no way altering that employment relationship with your Caregivers – you will remain the sale employer for purposes of all shifts scheduled via the Internal Function. Therefore, all sections or parts of sections of this Agreement that pertain to an employer role for CareOff with regards to Professionals – including Section 2.3 and Section 4 as they pertain to CareOff’s payment obligations – are inapplicable to your Internal Function staffing activities.
5.3 Internal Function Setup and Monthly License Fees. All the provisions of this Agreement that apply to your license to use the CareOff Software (including as set forth in Section 6, below) are applicable to your use of the Internal Function of the CareOff Software, but to activate the internal Function you must pay a one-time Setup Fee (related to the cost of entering your staff into CareOff’s system) and a monthly fee based on the total number of members of your staff who will be using the CareOff Software:
|
Small |
Medium |
Large |
X-Large |
|
|
Number of Employees |
1 to 500 |
501 to 1000 |
1001 to 2000 |
2001 + |
|
Cost per month |
$500 |
$1,500 |
$2,000 |
$2,500 |
|
One-time Setup Fee |
$1,000 |
$1,500 |
$1,500 |
$1,500 |
5.4 Activation of the Internal Function. You may request activation of the Internal Function at any time by sending an email to info@careoff.com . CareOff will promptly respond to assist you in enabling the Internal Function, including guiding you on how to get the members of your own Caregiver staff activated as users of the CareOff Software’s “Internal Staff” mobile application.
6.
Invoicing and Payment of the CareOff Fee.
All amounts due to CareOff (a fee for your use of Professionals under Section 4, or a monthly licensing fee as discussed in Section 5) will be set forth in detailed invoices that are immediately available to you via the CareOff Software. You can choose one of two options for making payments to CareOff: a direct payment via check or electronic transfer from your bank account, or an automatic electronic ACH payment (a deduction that you will have already authorized CareOff to make by filling out a separate ACH bank information).
6.1 Invoice generation, due date. The CareOff Software allows you to track your use of the CareOff Services in real time and defines a Service Week as Sunday through Saturday. You may access your real-time invoice details (such as date, hours, and cost of use for each Professional whose services you used) at any time via the CareOff Software. An invoice will be automatically generated and shared with you via the CareOff Software each Sunday for amounts you owe to CareOff for use of the CareOff Services during the prior week. Unless otherwise stated on an invoice, the Due Date for payment to CareOff is due 15 days after the date of an invoice.
6.2 Invoice disputes. The CareOff Software should make any billing disputes unlikely. However, should you feel an amount invoiced is incorrect, you must bring this dispute to CareOff’s attention before the Due Date for the invoice. Any dispute over an invoice must be communicated to CareOff via an email to info@careoff.com that states “Invoice Complaint” in the subject line, identifies the invoice by date and number, and explains the specifics of what you are disputing. Your failure to make an Invoice Complaint prior to the invoice Due Date constitutes approval of the associated invoice.
6.3 Two Payment Options. You may choose one of two ways to pay an invoice. You may make payment via a bank account whether by check or by electronic transfer (if you choose to pay via electronic transfer, you will be responsible for reimbursing CareOff for any fees associated with that transfer). Alternatively, you may make payment based on your previously having authorized CareOff to make an ACH withdrawal from your designated bank account for all amounts invoiced.
If you choose to pay via ACH, CareOff will provide you with a separate ACH (automated clearing house) bank information packet that contains all necessary debit account setup instructions so you can commence using the CareOff Services. YOU AGREE THAT IF YOUR PAYMENT CHOICE FAILS FOR ANY REASON (INSUFFICIENT FUNDS, CHANGE OF ACCOUNT NUMBER, OR OTHERWISE) YOU WILL IMMEDIATELY ARRANGE FOR OTHER MEANS OF PAYMENT TO CAREOFF AND WILL REIMBURSE CAREOFF FOR ANY FEES OR EXPENSES INCURRED BY CAREOFF IN EFFORTS TO SECURE PAYMENT FROM YOU.
7. Proprietary Rights; License.
7.1 License Grant. Subject to the terms and conditions of this Agreement, CareOff hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the CareOff Services (including the CareOff Software on a Device) solely for the purpose of obtaining Care Facility services from Professionals. All rights not expressly granted to you are reserved by CareOff, its Affiliates and their respective licensors.
7.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the CareOff Services, CareOff Software or any CareOff Device in any way; (b) modify or make derivative works based upon the CareOff Services or CareOff Software; (c) improperly use the CareOff Services or CareOff Software, including creating Internet "links” to any part of the CareOff Services or CareOff Software, "framing” or "mirroring” any part of the CareOff Services or CareOff Software on any other websites or systems, or "scraping” or otherwise improperly obtaining data from the CareOff Services or CareOff Software; (d) reverse engineer, decompile, modify, or disassemble the CareOff Services or CareOff Software, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the CareOff Services or CareOff Software to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the CareOff Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the CareOff Services; or (iv) attempt to gain unauthorized access to the CareOff Services or its related systems or networks.
7.3 Ownership. The CareOff Services, CareOff Software and CareOff Data, including all intellectual property rights therein, and the CareOff Devices are and shall remain (as between you and CareOff) the property of CareOff, its Affiliates or their respective licensors. Neither this Agreement nor your use of the CareOff Services, CareOff Software or CareOff Data conveys or grants to you any rights in or related to the CareOff Services, CareOff Software or CareOff Data, except for the limited license granted above. Other than as specifically permitted by the CareOff in connection with the CareOff Services, you are not permitted to use or reference in any manner CareOff's, its Affiliates', or their respective licensors' CareOff names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "CAREOFF Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the CAREOFF Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
8.1 Each party acknowledges and agrees that in the performance of this Agreement it may have
access to or may be exposed to, directly or indirectly, confidential information of: (a) the other party; (b) Providers of Care Facility services; (c) residents of a Care Facility (“Residents”) and other staff working at a Care Facility; or (d) some combination of those individuals or entities. Collectively, this information shall be referred to as "Confidential Information." Confidential Information includes CareOff Data, Provider IDs, Provider Information, the identity of Residents, the health care information of Residents, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
8.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to CareOff, its internal record-keeping requirements).
8.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
9.1 Disclosure of Your Information. CareOff has designed the CareOff Services and CareOff Software to provide CareOff with access to only such aspects of your personal or business information as are needed to efficiently and effectively provide the CareOff Services. Nonetheless, subject to applicable law, CareOff and its Affiliates may find it necessary to, provide to an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal/business information and any CareOff Data) about you or any staff or resident of your Care Facility if: (a) there is a complaint, dispute or conflict, including an accident, between you and a Professional; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in CareOff's or any Affiliate's sole discretion, by applicable law or regulatory requirements (e.g., CareOff or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in CareOff's or any Affiliate's sole discretion, to (1) protect the safety, rights, property or security of CareOff or its Affiliates, the CareOff Services or any third party, including residents of a Care Facility; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the CareOff Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which CareOff or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity); or (e) it is required or necessary, in CareOff's or any Affiliate's sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the CareOff Services. You understand that CareOff may retain your personal or business data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
9.2 CareOff and its Affiliates may collect your personal and business data during the course of your application for, and use of, the CareOff Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, used, and accessed by CareOff and its Affiliates, third parties, and service providers for business purposes, including for marketing, service development and improvement, analytics, industry and market research, and such other purposes consistent with CareOff's and its Affiliates' legitimate business needs. You expressly consent to such use of your personal and business data.
10. Representations and Warranties; Disclaimers.
10.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all (if any are required) permits, licenses, registrations and other governmental authorizations necessary to provide Care Facility services.
10.2 Disclaimer of Warranties. CAREOFF AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE CAREOFF SERVICES AND THE CAREOFF APP ON AN "AS IS" AND "AS AVAILABLE" BASIS. CAREOFF AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE CAREOFF SERVICES OR CAREOFF APP: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY ACCEPTED REQUESTS FOR Care Facility SERVICES. CAREOFF AND ITS AFFILIATES PROVIDE AN ON-DEMAND LEAD GENERATION SERVICE FOR PROVISION OF Care Facility AND RELATED SERVICES AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE PROFESSIONALS WHO MAY FULFILL REQUEST YOUR REQUEST Care Facility SERVICES. OTHER THAN AS SET FORTH IN THIS AGREEMENT, CAREOFF AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE PROFESSIONALS. BY USING THE CAREOFF SERVICES AND CAREOFF APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE CAREOFF SERVICES OR CAREOFF APP. NOTWITHSTANDING CAREOFF'S ROLE AS THE PROFESSIONAL’S EMPLOYER FOR PURPOSES OF THE PAYMENT OBLIGATIONS RELATED TO THE PROFESSIONAL’S PERFORMANCE OF SERVICES AS SET FORTH IN SECTION 4 ABOVE, CAREOFF AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY PROFESSIONAL, OR OTHER THIRD PARTY.
10.3 No Service Guarantee. CAREOFF AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE CAREOFF SERVICES OR CAREOFF APP. YOU ACKNOWLEDGE AND AGREE THAT THE CAREOFF SERVICES OR CAREOFF APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE CAREOFF SERVICES OR CAREOFF APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND CAREOFF AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
11. Indemnification. You shall indemnify, defend (at CareOff's option) and hold harmless CareOff and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Professionals, regulators and governmental authorities) directly or indirectly related to your obtaining Care Facility services or other use of the CareOff Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
12.
Limits of Liability. CAREOFF AND ITS
AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE
FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i)
ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT
DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY'S PROPERTY DAMAGE,
OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR
OTHER ECONOMIC ADVANTAGE. EXCEPT FOR CAREOFF'S OBLIGATIONS TO PAY AMOUNTS DUE
TO PROFESSIONALS AND GOVERNMENTAL AUTHORITIES PURSUANT TO SECTION 4 ABOVE, BUT
SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT
WHICH ARE APPLICABLE THERETO.
13.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
13.2 Termination. Either you or CareOff may end your contractual relationship at any time, without notice, and for any reason except for forms of workplace discrimination or other reasons that are forbidden by law. Nonetheless, CareOff will endeavor to provide notice of intent to terminate when doing so is practical. CareOff may, however, terminate this agreement immediately, with or without notice, for your material breach of this Agreement. CareOff may terminate this Agreement or deactivate your Provider ID immediately, without notice, with respect to you in the event you no longer are authorized to operate a Care Facility or otherwise fail to qualify to provide Care Facility services, or as otherwise set forth in this Agreement.
13.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the CareOff Software from any of Your Devices. Outstanding payment obligations, sections 1, 2.3, 2.4, 2.5.1, 2.5.3, 4, 5, 6, 7.3, 8, 9, 10, 11, 12, 13.3, 14, 15, 16, and any other provision that by its nature should survive termination, shall survive the termination of this Agreement.
14. Relationship of the Parties.
14.1 You have two relationships with CareOff, each of which are contractual agreements between independent entities. One is your relationship with CareOff is as a gratuitous (no charge to you) licensee of the CareOff Software. The second is your relationship as an independent business entity who has contractually agreed to retain temporary employment-related services from CareOff. You and CareOff do not intend to become the joint employer of any Professional or other person.
14.2 You have no authority to bind CareOff or its Affiliates and you undertake not to hold yourself out as an agent or authorized representative of CareOff or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of CareOff, you undertake and agree to indemnify, defend (at CareOff's option) and hold CareOff and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
15.1 Modification. In the event CareOff modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. CareOff reserves the right to modify any information that may be referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the CareOff Services, or downloading, installing or using the CareOff Software, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations. Continued use of the CareOff Services or CareOff Software after any such changes shall constitute your consent to such changes.
15.2 Supplemental Terms. Supplemental terms may apply to your use of the CareOff Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time ("Supplemental Terms"). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall be read harmoniously with this Agreement where possible but shall prevail over this Agreement in the event of a conflict between the two.
15.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
15.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that CareOff may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of CareOff's business, equity or assets.
15.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words "including” and "include” mean "including, but not limited to.” The recitals form a part of this Agreement.
15.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
15.7 Notices. Any notice delivered by CareOff to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the CareOff Services. Any notice delivered by you to CareOff under this Agreement will be delivered by contacting CareOff in the "Contact Us” section. Additional Territory-specific notices may be required from time to time.
16. Governing Law; Jurisdiction; Waiver of all Class Rights.
16.1 Governing law. This Agreement shall be construed and interpreted according to, and any disputes arising out of this Agreement shall be resolved by the application of, Massachusetts law, except to the extent that the federal law of the United States provides the only applicable law such as in certain disputes concerning intellectual property rights.
16.2 Exclusive Jurisdiction/Forum. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the CareOff Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Middlesex and Suffolk County, Massachusetts.
16.3 Individual Claims Only; Your Waiver of Class Rights. By entering into this Agreement, you are agreeing that should you have any dispute concerning the meaning of this Agreement, the CareOff Services, or the terms or conditions of your employment pursuant to this Agreement, you will only resolve that dispute on an individual basis. You expressly waive any right you might otherwise have to participate as a lead party or class member in any class action lawsuit, and should such a class action lawsuit be brought by another individual you will ensure you are not a member of such class by taking whatever action is necessary (either not opting into the class, or by opting out if an affirmative act is necessary to not become a member of the class). YOU ACKNOWLEDGE THAT YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT YOU ARE WAIVING RIGHTS THAT YOU OTHERWISE MIGHT HAVE. YOU MAY WISH TO CONSULT WITH AN ATTORNEY ABOUT THIS WAIVER OR ANY OTHER ASPECT OF THIS AGREEMENT. YOU ALSO ACKNOWLEDGE THAT YOU ARE MAKING THIS WAIVER KNOWINGLY, EITHER AFTER CONSULTING AN ATTORNEY OR AFTER DECIDING TO DO SO WITHOUT FIRST CONSULTING AN ATTORNEY.
Acceptance by Clicking “I Accept”:
By clicking "I accept”, you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, that you understand that terms of this Agreement may change in the future and your continued use of the CareOff Software after such changes will constitute acceptance of those new terms, and that you are legally competent to enter into this Agreement with CareOff.
Care Facility Name: CareOff,
Inc
Signature: ____________________ Signature: _____________________
Name: Name:
Title: Title:
Date: Date: