EldersAide Terms and Conditions

Updated as of October 20, 2016

Welcome to EldersAide.com, a website operated by Carotopia, LLC. ("EldersAide," "us," and "we"). These terms and conditions are part of the EldersAide Care Service Agreement between you and EldersAide, and together with any service order or service agreement that you sign are referred to as the “Agreement.” EldersAide provides non-medical services in the home (the “Services”). EldersAide’s technology, including its website, the EldersAide Family App and the EldersAide Care Pro App, are referred to as the “Platform” and are considered part of the Services.

1. No Professional or Medical Advice

You acknowledge that the Services are not a medical service or advice and are not intended to replace or substitute for any professional or medical advice. Any information provided as part of the Services may not be relied on as medical advice, and you should consult with an appropriately trained professional or medical provider for all concerns that require professional or medical advice. In the course of providing services, EldersAide collects certain information about the care recipient and, as part of the service, transmits that information to you and others (for example, information about meals, sleep, mood, etc.). All information is collected and transmitted for your convenience only, and EldersAide is not responsible for taking action on any information that EldersAide collects or observes.

2. Authority to Bind Care Recipient

This Agreement is between EldersAide and you, on behalf of yourself and, if different, a care recipient (“Recipient”). You represent and warrant that (a) you and the Recipient (if not yourself) are at least the age of legal majority in your jurisdiction; and (b) if the Recipient is someone other than yourself, you have the full power and authority to bind that person to this Agreement. In that case that person shall also be bound by this Agreement, and every reference in this Agreement to “you” and “your” shall also include the Recipient. You will provide EldersAide with evidence of any such authority upon request and will indemnify EldersAide against any claims based on your lack of authority.

3. Changes to Agreement or Service

EldersAide may modify the Agreement, including the rates it charges you, by sending notice as set forth in Section 19. If you do not want to be bound by the modified terms, then you must stop using the Services. Because our Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion. Any changes will be effective 48 hours after the time it is deemed to be given under the terms of Section 19, or such later date specified in the notice.

4. General Payment Terms

You agree to keep a current credit or debit card on file with EldersAide at all times. You agree to pay EldersAide for any transactions made in connection with your account (“Service Fees”). We will charge your credit or debit card according to the agreed rates for Services, as modified from time to time. Any changes in rates will be communicated to you in accordance with these Terms and Conditions. All Service Fees are due immediately upon completion of the scheduled appointment and you hereby authorize EldersAide to charge the card on file following completion. We retain the right to place a hold on your credit card for an ordered or completed appointment. In addition, you agree that EldersAide may charge your payment method for verification and pre-authorization purposes and you agree to bear any additional charges that your bank or other financial service provider may levy on you. We will use third party services to process credit card information.

5. Direct Hire Fee

You acknowledge that EldersAide has invested significant resources in recruiting and training its Care Pros. In the event that you hire any Care Pro that has been employed by EldersAide within the past twelve (12) months, you will pay EldersAide a placement fee equal to $10,000. You acknowledge that this is a reasonable representation of damages suffered by EldersAide. If you hire a Care Pro directly neither you nor the Care Pro will be covered by any insurance or liability protection by EldersAide, and you will assume responsibility for all taxes, insurance, overtime and other requirements. EldersAide may also terminate its Agreement with you immediately.

6. Cancellation by You

You may cancel any appointment for Care Services by emailing EldersAide at Admin@EldersAide.com no later than 24 hours prior to the scheduled appointment. You authorize us to charge your credit card for any scheduled appointments that you do not cancel in accordance with this paragraph, including if the Care Pro is unable to deliver the services due to the unavailability of or refusal by the Recipient. Certain discounted or promotional rates may be subject to additional restrictions and penalties for cancellation, which will be outlined in connection with the discount or promotion.

7. Substitution of Care Pro

If a Care Pro is unable to make any scheduled appointment and EldersAide receives sufficient advance notification, EldersAide will make will make every reasonable effort to find a replacement in sufficient time, and if no replacement is available, you will not be charged for the appointment. EldersAide shall not otherwise be responsible for any inability to provide a substitute Care Pro.

8. Discounts and Promotion

From time to time, you may be offered discounted or promotional rates (in an amount subject to EldersAide’s sole discretion), which will be subject to any additional terms outlined in connection with such discount or promotion. Discounts and promotions may not be combined with any other offer.

9. Transportation

If you elect to have the Care Pro provide transportation in the Recipient’s car, you will be responsible for all necessary insurance to cover any accidents or liability that may occur. If you elect to be transported in the Care Pro’s car, you understand that the Recipient will ride in the Care Pro’s personal car as a passenger of the Care Pro. EldersAide expressly disclaims, and you hereby expressly release EldersAide from, any responsibility or liability for any damages resulting from your use of transportation services from a Care Pro. Mileage will be charged for transportation in the Care Pro car at then-current rates.

10. Gratuities

EldersAide does not designate any portion of your payment as a tip or gratuity to the Care Pro. While you are free to provide additional payment as a gratuity to any Care Pro, you are under no obligation to do so. You are responsible for determining whether any gratuity is reportable to any taxing authority and for making such report or paying any applicable taxes.

11. Ratings

Whenever you or the Recipient is asked to provide ratings of the Care Pro, you agree that all ratings will represent the independent, honest and genuine opinion of the person providing the rating.

12. Good Samaritan

The Services do not include medical care of any kind, including emergency care, and no part of the Service Fees constitute compensation for any medical or emergency care. If an emergency occurs while a Care Pro is with a Recipient, neither the Care Pro nor EldersAide shall be liable for any damages resulting from any act or omission of the Care Pro. Whether a Care Pro renders emergency care is at the discretion of the Care Pro. Care Pros and, if applicable, EldersAide, shall be entitled to the full benefit of any “Good Samaritan” laws.

13. Safety

You are responsible for providing a safe and secure working environment for the Care Pro, and for obtaining all necessary insurance relevant to your home and your automobile. If a Care Pro detects violence or abuse affecting the Recipient, the Care Pro may be required by law to report that abuse to law enforcement.

14. Privacy and Confidentiality

When you use EldersAide, you submit personal information about you and the Recipient, such as your name, address, mobile phone number and age, as well as information about the Recipient that may be relevant to the Care Services, such as physical or mental condition, medications, preferences, diet, etc. You agree to provide accurate, complete and up-to-date information, and your failure to do so may result in adverse consequences, including the inability of the Care Pro to provide the Care Services, your inability to access and use the Platform or suspension of your account.

We may share the information you give EldersAide with our Care Pros and with other persons that you authorize, which may include other family members or members of the Recipient’s medical team, all in accordance with our Privacy Policy. Please refer to our Privacy Policy at www.EldersAide.com/privacy for information on how we collect, use and disclose information from our clients.

15. Communications from Us

You consent to the receipt by both you and the Recipient of calls to your phone and mobile phone and text (SMS) messages from both EldersAide and the Care Pros who are providing Care Services to the Recipient. Standard voice and data charges from your phone carrier may apply to these calls and texts. You may also receive email communications from EldersAide or Care Pros, including information about the Recipient, about the services, newsletters, special offers, and account reminders and updates. You can remove yourself from communications that are not related to the delivery of services by following the instructions in the email. If you do not want to receive communication of sensitive or confidential information by email, please notify us at legal@EldersAide.com.

16. Disclaimers; Limitation Of Liability; Indemnity

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ELDERSAIDE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE (I) REGARDING THE RELIABILITY, TIMELINESS, SAFETY, SUITABILITY, OR AVAILABILITY OF THE SERVICE, OR (II) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS.

ELDERSAIDE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, COST OF SUBSTITUTE SERVICES, PERSONAL INJURY, OR PROPERTY LOSS OR DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE. ELDERSAIDE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND ELDERSAIDE’S REASONABLE CONTROL. IN NO EVENT SHALL ELDERSAIDE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO ELDERSAIDE FOR SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM OR ACTION.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELDERSAIDE AND YOU.

You agree to indemnify and hold EldersAide and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with your use of the Service, your lack of authority to bind the Recipient to this Agreement, the breach or violation of any of this Agreement, or your violation of the rights of any third party, including any Care Pro.

17. Governing Law

This Agreement and any action related thereto will be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions.

18. Agreement to Arbitrate

EldersAide believes that arbitration represents the best way to resolve disputes and accordingly requires that all disputes be resolved by arbitration in accordance with the attached Agreement to Arbitrate, which constitutes a part of this Agreement.

19. Notice

EldersAide may give notice by means of a general notice on the Platform, electronic mail to your email address in your account, or by written communication sent by first class mail or pre-paid post to your address in your account. Such notice shall be deemed to have been given upon the expiration of 12 hours after sending by email. You may give notice to EldersAide, with such notice deemed given when received by EldersAide, when sent by email to EldersAide at legal@EldersAide.com.

20. Assignment

EldersAide may assign this Agreement without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of EldersAide’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. EldersAide’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by EldersAide in writing.

Agreement to Arbitrate

You and EldersAide agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court. You acknowledge and agree that you and EldersAide are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and EldersAide otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Agreement to Arbitrate” will be deemed void. Except as provided in the preceding sentence, this “Agreement to Arbitrate” will survive any termination of this Agreement.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure

Unless you and EldersAide otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and EldersAide submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. EldersAide will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, EldersAide will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes

Notwithstanding anything else in this Agreement, if EldersAide changes this “Agreement to Arbitrate” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to legal@EldersAide.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of EldersAide’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and EldersAide in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).

Your Choices

If you don’t want to settle Disputes by arbitration as described above, you will notify EldersAide by sending us an email to legal@EldersAide.com telling us that you don’t want to use arbitration, within thirty (30) days of the date on which you agreed to this Agreement, and consequently you agree that all Disputes will be resolved exclusively by a court located in Metuchen, New Jersey.





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