AGREEMENT BETWEEN PROVIDERS AND ROOM2CARE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING LEGAL RIGHTS AND OBLIGATIONS.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH PROVIDERS (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR CARE AND LODGING. CUSTOMERS UNDERSTAND AND AGREE THAT ROOM2CARE (where Room2Care is the platform) IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PROVIDERS AND CUSTOMERS, NOR IS ROOM2CARE AN AGENT OR INSURER. Room2Care HAS NO CONTROL OVER THE CONDUCT OF USERS OF THE SITE, APPLICATIONS, OR SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
“PROVIDER” means a member who creates a listing via the site, application, or service.
“LISTING” means a product or that is offered by a provider via the site, application, or service.
PROVIDERS AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF A PROVIDER DOES NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, THEY MAY NOT PARTICIPATE IN ROOM2CARE’S SERVICE.
INITIAL APPROVAL OF PROVIDER BY ROOM2CARE
[PROVIDER] will not be eligible to participate as a service professional for Room2Care unless and until [PROVIDER] completes an application, accepts these Terms and Conditions, and receives written approval (which may be via email) from Room2Care. Approval may be given or withheld by Room2Care in its sole discretion and for any reason or no reason, without regard to any standard of reasonableness. Room2Care shall, in its sole discretion, determine the criteria for [PROVIDER]’s participation as a provider of care and/or lodging, which may be different than the standard applied to other providers for different services or listings. [PROVIDER] hereby consents to and authorizes Room2Care to investigate [PROVIDER]’s eligibility for participation as an Room2Care provider. Such investigation may include, but is not limited to ____________. In connection with such investigations, [PROVIDER] shall cooperate with Room2Care, which shall include granting, executing and providing further information, and obtaining such additional agreements, permissions, or consents as may be requested by Room2Care in connection with its investigation. [PROVIDER]’s failure to cooperate may result in immediate termination of the Agreement and discontinuance of any consideration to be a Room2Care provider.
For so long as [PROVIDER] is participating as a Room2Care provider, Room2Care shall have the right to update its initial investigation to ensure that [PROVIDER] continues to meet applicable standards for participation. [PROVIDER] shall continue to cooperate as detailed hererin for such ongoing investigations.
REPRESENTATION AND WARRANTY
[PROVIDER] represents and warrants that all information it provides to Room2Care, either during the application process or during any subsequent investigation, will be true and complete.
OBLIGATIONS AND WARRANTIES
PROVIDING SERVICES TO Room2Care CUSTOMERS
Room2Care customers are persons or entities who utilize the Room2Care service to indicate a need for care and/or lodging Via the platform, Room2Care or affiliates will engage [PROVIDER} to perform the requested service. A job will only be assigned to a provider if they are shown to have availability. As part of each job, the chosen provider is required to complete the obligations set forth in this Agreement, including but not limited to invoice payment and processing obligations. Room2Care does not guarantee that [PROVIDER] will receive a specific number of (or any) jobs through Room2Care. [PROVIDER] acknowledges that Room2Care is not vetting or doing any due diligence on the customers.
[PROVIDER] shall only access and utilize the Platform using the following browsers ([broswers]) and Room2Care's software via devices provided by Room2Care (a) to enter into the Platform the required information regarding each Service Professional employee who will be working on any Room2Care assignment, (b)... (c)… [whatever other obligations the platform will require of providers, which may depend on what the service provided is and may include background checks, response time deadlines to jobs, insurance, auto liability, workers compensation etc.] How much detail is needed here?
[PROVIDER] must inspect the applicable property to determine whether there are any physical losses or damages to any property and complete and contact Room2Care in writing within 1 business day. Is this okay
[PROVIDER] acknowledges and understands that neither it nor its subcontractors or employees may place liens on customers in connection with any Room2Care job. If requested, [PROVIDER] shall provide and shall cause its employees and subcontractor to provide Room2Care with lien waivers and provide any such support as Room2Care may request in connection with Room2Care’s efforts to perfect any liens against customers, when appropriate. In addition, [PROVIDER] shall not take or permit or otherwise pursue any collection action against customers.
LICENSES AND PERMITS
[PROVIDER] will secure at its own expense any necessary permits and licenses required to do the work and otherwise perform the services, ensure that all of its service providers are duly licensed, and will comply with all building, zoning and other applicable laws, codes, regulations and ordinances.
[PROVIDER] shall take all precautions necessary to protect persons from injury and unnecessary interference or inconvenience and keep the premises where the service is being performed clean and in good order and maintain conditions which do not cause health or safety hazards or violate any applicable law or regulation.
[PROVIDER] shall follow best practices, ensure the property meets applicable safety standards, keep any confidential information it becomes aware of secure and private, and inform the customer of any potential dangers relating to the property. For the avoidance of doubt, any other standard or requirement set forth hereunder is a minimum, as, in all cases, [PROVIDER] must operate in accordance with best practices.
If [PROVIDER] discovers mold, asbestos, lead paint or any other similar hazards, it should immediately alert the customer and Room2Care and cease services immediately. [PROVIDER] shall not resume services until such hazard(s) is/are fully rectified.
[PROVIDER] shall provide Room2Care with the information and authorizations required so that Room2Care may pay [PROVIDER] via electronic funds transfer through automated clearing house (ACH) transactions. If such information changes, [PROVIDER] shall provide Room2Care with any updated information as soon as possible. Failure to do so will result in [PROVIDER] not being paid in a timely manner and [PROVIDER] shall have no claim to damages for such delay.
COMPLIANCE WITH LAWS
[PROVIDER] and its service provider(s) will comply with all applicable laws, rules, regulations, ordinances, and codes in connection with the performance of the services.
SERVICE PROFESSIONAL REPLACEMENT
Room2Care shall have the right in its sole discretion to replace [PROVIDER] at any time for failure to adequately perform the services, including failure to maintain safe premises, which right shall be in addition to any other rights of Room2Care by reason of a default by or other problems with the Service Professional. In such case, [PROVIDER] shall repay to Room2Care any portion of the fees paid to and received by [PROVIDER] for such Services.
ROOM2CARE PAYMENT TO [PROVIDER]
Room2Care shall pay [PROVIDER] for the services as follows:
For the services, Room2Care shall pay [PROVIDER] consistent with its pricing list agreed upon with the lessee. There is no mention of the senior who will be renting in this agreement
For the services, Room2Care shall pay [PROVIDER] for covered losses, reduced by the amount that [PROVIDER] has already collected for the same covered losses from a source other than Room2Care. This includes, without limitation: (i) amounts received under an insurance policy, guarantee or indemnity; (ii) a security deposit; or (iii) payment directly by the customer, or other party or an insurer or guarantor of such party.
“Covered Losses” means and is limited to direct physical loss or physical damage incurred by [PROVIDER] to a covered property caused by the customer.
“Covered Property” means and is limited to the following property located at a covered accommodation, or within 1,000 feet thereof, to the extent of [PROVIDER]’s in such property.
“Covered Accommodation” means an accommodation that can be used as a [residence, work site, etc.] and that is (i) owned or legally controlled by [PROVIDER] during the period of the customer’s stay or occupation and (ii) listed by [PROVIDER] on the Site and booked by such customer in compliance with the Room2Care Terms of Service.
“Excluded Losses” are those that Room2Care does not reimburse as covered losses and includes any of the following:
(a) Any losses caused by a customer after the expiration of the booking period shown in the applicable listing.
(b) Losses or damages if goods on the premises, if they cannot be replaced with others of like kind and quality; or any loss or damage from any repairing, restoration or retouching process.
(c) Losses or damages which arise out of any one booking by a customer in excess of an agreed upon limit.
(d) Any losses, damages, cost or expense of whatsoever nature, directly or indirectly, caused by, relating to or resulting from any of the following: acts of nature; indirect or remote causes; excessive use of electricity, gas, fuel, water or other utilities provided for the covered accommodation; loss, damage, or deterioration arising from any delay; interruption of business, loss of market and/or loss of use; mysterious disappearance, loss, or shortage disclosed on taking inventory, or any unexplained loss of inventory; enforcement of any law or ordinance (i) regulating the construction, repair, replacement, use or removal of any property, including removal of debris, or (ii) requiring the demolition of any property, including the cost of removing its debris; or identity theft or fraud
(e) Any losses, damages, cost or expense of whatsoever nature, directly or indirectly, caused by or resulting from any of the following, regardless of any other cause or event contributing thereto: any hostile act or act of war, terrorism, insurrection or rebellion; actual or threatened malicious use of poisonous biological or chemical materials; nuclear reaction or radiation or radioactive contamination; seizure or destruction under quarantine or custom regulation, or confiscation by order of any governmental or public authority; contraband, or illegal transportation or trade; or lack of electricity, fuel, water, gas, steam, refrigerant, sewerage, telephone or internet services due to external factors.
(f) The following conditions: faulty workmanship, material, construction or design from any cause; deterioration, depletion, rust, corrosion or erosion, inherent vice or latent defect; ordinary wear and tear; settling, cracking, shrinking, bulging, or expansion of foundations, floors, pavements, walls, ceilings or roofs; changes of temperature or relative humidity; or damage caused by insects, animals or vermin (including pets).
(g) Any losses, damages, claims, costs, expenses or other sums directly or indirectly arising out of or relating to mold, mildew, fungus, spores or other microorganism of any type, nature, or description, including but not limited to any substance whose presence poses an actual or potential threat to human health. This exclusion applies even if there is (i) any physical loss or damage to covered property; (ii) any peril or cause covered hereunder, whether or not contributing concurrently or in any sequence; (iii) any loss of use, occupancy, or functionality; or (iv) any action required, including but not limited to, repair, replacement, removal, cleanup, abatement, disposal, relocation, or steps taken to address medical or legal concerns.
Room2Care may, from time to time, contact any customer for any reason at any time, including to confirm or verify that services have been performed to the satisfaction of the customer and to solicit feedback regarding the quality of services rendered by [PROVIDER] and its Service Provider. Room2Care is further authorized to use, publish, disclose and disseminate such feedback information, as well as feedback information from Room2Care employees, whether positive or negative, in whatever manner it sees fit, including posting such information on the Platform and elsewhere, including but not limited to Facebook and Yelp.
[PROVIDER] acknowledges and agrees that customers are Room2Care customers. Accordingly, during the Term and for eighteen (18) months thereafter (the “Non-Solicitation Period”), [PROVIDER] will not solicit any Customers for the purposes of offering such customers any services that are offered directly by Room2Care. Notwithstanding the foregoing, [PROVIDER] shall not be prohibited from working with a customer if [PROVIDER] has a record of doing business with a customer within the twelve (12) month period before [PROVIDER] began working with Room2Care. If [PROVIDER] violates this provision, [PROVIDER] shall remit to Room2Care any and all revenue generated from Room2Care customers obtained in violation of this provision. [PROVIDER] acknowledges that the foregoing restrictions are reasonable in scope and duration and are freely entered into by [PROVIDER].
During the Term, [PROVIDER] will not offer its services for sale through another third party or service similar to Room2Care.
[PROVIDER] understands that Room2Care may disclose to [PROVIDER] information of a confidential nature including, without limitation, product information, customer information, data, price list, financial information, this Agreement, and Service Provider information, beta test results, technology or other materials that is the confidential information of Room2Care or its affiliates (“Confidential Information”). [PROVIDER] agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information without the prior written approval of Room2Care in each instance. In the event that [PROVIDER] is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, [PROVIDER] shall promptly notify Room2Care in order to allow such party to contest the order or requirement. Upon termination of this Agreement, [PROVIDER] agrees to return all of the Confidential Information including but not limited to writing, drawing, schematic, tape, disk or other form of documentation, or to certify to Room2Care that all such material has been destroyed.
This Agreement will commence on the Effective Date and continue until terminated (the “Term”). The Agreement may be terminated by either party for any reason or no reason, upon sixty (60) days prior written notice, provided, however, that such termination shall not relieve [PROVIDER] of its obligations to any Customers to whom [PROVIDER] has already provided service or has offered to provide services. In addition, Room2Care shall have the right to terminate this Agreement immediately upon written notice in the event of a material breach by [PROVIDER] (or its Service Provider) that is not cured within five (5) days of written notice. In the event of termination for [PROVIDER]’s uncured material breach, Room2Care shall have no further payment obligations to [PROVIDER] as of the date of notice of breach. In the event of termination for any reason other than [PROVIDER]’s breach, [PROVIDER] shall be entitled to payment only for services rendered as of the effective date of termination.
DISCLAIMER/LIMITATION OF LIABILITY
IF YOU CHOOSE TO USE THE SITE, APPLICATION, OR SERVICES AS A PROVIDER, YOU DO SO AT YOUR SOLE RISK. THE ROOM2CARE PROVIDER GUARANTEE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ROOM2CARE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ROOM2CARE MAKES NO WARRANTY THAT THE ROOM2CARE HOST GUARANTEE WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ROOM2CARE OR THROUGH THE SITE, APPLICATION, OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION AND SERVICES, AND YOUR LISTING OF ANY ACCOMMODATIONS VIA THE SITE, APPLICATION AND SERVICES REMAINS WITH YOU. NEITHER ROOM2CARE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION AND SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR (1) PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE ROOM2CARE PROVIDER GUARANTEE TERMS, (2) FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION OR SERVICES, (3) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, OR (4) FROM YOUR LISTING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES. ROOM2CARE WILL NOT BE LIABLE FOR ANY SUCH DAMAGES DESCRIBED ABOVE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ROOM2CARE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR ROOM2CARE’S OBLIGATION TO PAY AMOUNTS TO YOU PURSUANT TO AN APPROVED PAYMENT REQUEST UNDER THESE ROOM2CARE PROVIDER GUARANTEE TERMS, IN NO EVENT WILL ROOM2CARE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH (A) THESE ROOM2CARE PROVIDER GUARANTEE TERMS; (B) YOUR USE OF OR INABILITY TO USE THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, POSTING A LISTING, (C) ANY ACCOMMODATION AND (D) YOUR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS PAID BY ROOM2CARE TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ROOM2CARE AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION FOR CERTAIN LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
[PROVIDER] shall indemnify, defend and hold harmless Room2Care, its affiliates and its and their directors, officers, employees and agents and each of their respective successors, heirs and assigns (the Room2Care Parties”) from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Room2Care Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising from (a) the nonperformance or faulty performance of the services on a Room2Care job; (b) a breach by [PROVIDER] and/or its Service Provider of any representation, warranty, covenant under this Agreement; or (c) any loss, damage, or injury alleged, caused by, related to, or as a result of, the property site provided by [PROVIDER] and/or its Service Provider. [PROVIDER] will not enter into any settlement or compromise of any such claim without Room2Care’s prior written consent. Room2Care may join in defense with counsel of its choice at its own expense; provided, that if such counsel is necessary because of a conflict of interest with [PROVIDER] or its counsel or because [PROVIDER] does not assume control of the defense of a claim for which [PROVIDER] is obligated to indemnify Room2Care hereunder, [PROVIDER] shall bear such expense. This provision shall survive any expiration or termination of this Agreement.
In the event of any dispute concerning the validity, interpretation, enforcement or breach of this Agreement, [PROVIDER] and Room2Care unconditionally and irrevocably agree that the dispute will be resolved by arbitration (and accordingly they hereby consent to personal jurisdiction over them) in (FORUM). Any such arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect except as limited or expanded by this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration (e.g., to compel arbitration) or from seeking equitable or provisional relief from a court of competent jurisdiction. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies. To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER SERVICE PROFESSIONAL OR THE PLATFORM OR THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
No variation of the terms of this Agreement will be enforceable against Room2Care unless Room2Care gives its express consent in writing.
[PROVIDER] may not assign, delegate or otherwise transfer its rights or obligations under this Agreement (including, but not limited to, by operation of law) without the prior written consent of Room2Care, which consent may be given or withheld by Room2Care in its sole discretion and for any reason or no reason without regard to any standard of reasonableness.
CHOICE OF LAW
This Agreement will be governed by and interpreted in accordance with the Applicable Laws of the State of (FORUM) without regard to the conflicts of laws principles thereof.
The parties hereby acknowledge and agree that each is an independent contractor and that neither party shall be considered to be the agent, representative, master or servant of the other party for any purpose whatsoever, and that neither party has any authority to enter into a contract, to assume any obligation, or to give warranties or representations on behalf of the other party. Nothing in this relationship shall be construed to create a joint venture, partnership, fiduciary or other similar relationship between the parties. [PROVIDER] is a vendor to Room2Care.
The parties covenant and agree that if a party fails or neglects for any reason to take advantage of or enforce any of this Agreement or if a party, having the right to declare this Agreement terminated, shall fail to do so, any such failure or neglect by such party shall not be a waiver or be deemed or be construed to be a waiver of any cause for the termination of this Agreement subsequently arising, or as a waiver of any of the terms, covenants or conditions of this Agreement or of the performance thereof. None of the terms, covenants and conditions of this Agreement may be waived by a party except by its written consent.
If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by any arbitrator or court of competent jurisdiction, the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and the parties agree that the arbitrator, arbitration panel or court of competent jurisdiction making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable.
No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, civil unrest, labor unrest, or shortage of or inability to obtain material or equipment.
This Agreement, together with any exhibits, guidelines service standards and the like that may be provided by Room2Care from time to time, constitute the entire agreement between the parties and shall supersede all previous agreements, either oral or written, between the parties hereto with respect to the subject matter hereof. No agreement or understanding bearing on this Agreement shall be binding upon either party hereto unless it shall be in writing and signed by the duly authorized officer or representative of each of the parties and shall expressly refer to this Agreement.
Any headings contained in this Agreement are for convenience only and will not be employed in interpreting this Agreement. This Agreement will be interpreted fairly in accordance with its terms and conditions and without any strict construction in favor of or against either party.