Effective November 1, 2019

These “AssuriCare Terms and Conditions of Service” (“Terms”) are incorporated by reference into the SaaS Agreement Order Form and together constitute the entire agreement (“Agreement”) by and between AssuriCare LLC (“AssuriCare”, “we” or “us”), a Massachusetts Limited Liability Company, and its customer (“Customer”, “you” or “your”). The Terms establish the terms and conditions under which individuals and entities may use AssuriCare’s systems, technology platform, products, services, software, applications, and websites.

1. GENERAL PROVISIONS

Read these Terms before using the Site or the Services. By executing a SaaS Agreement Order Form or using and/or accessing the Site, you hereby represent, warrant, and understand that you agree to and accept these Terms in their entirety whether or not you register as a user of the Site or Services.

In the event AssuriCare modifies these Terms, such modifications shall be binding on you upon your receipt of such amended Terms from AssuriCare in electronic or written form. The effective date listed on such amended Terms received from AssuriCare in electronic or written form shall be the effective date of the modified Terms between you and AssuriCare. However, no such modification shall apply to an arbitrable dispute of which you and AssuriCare had actual notice on or before the effective date of the modified Agreement. If you choose to register on the Site and provide your email address, AssuriCare will use reasonable business efforts to email you about changes we believe are significant concerning the use of the Site or these Terms.

These Terms contain an Agreement to Arbitrate, which will, with limited exception, require any site user and AssuriCare to submit any claims against the other to binding and final arbitration. The Arbitration Agreement also means, in part, that (1) you will only be permitted to pursue claims against AssuriCare on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

2. DEFINITIONS

  1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” (and its variants, including “controls,” “controlled by,” and “under common control with”) means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

  2. “Billing Source” means a person or organization who is responsible for making payments for care received on behalf of a Client.

  3. “Caregiver” means a person providing care to a Client.

  4. “Client” means a person who, during a specified period, contracts with Customer or any Customer Affiliate to receive care from a referred Caregiver.

  5. “Customer’s Data” means all electronic data or information submitted by Customer to the Services or Site.

  6. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

  7. “Order Form” means the SaaS Agreement Order Form that incorporates these terms and conditions by reference.

  8. “Parties” means AssuriCare and Customer and, in the singular, refers to either of them as the context makes apparent.

  9. “RegistryConnect” means the SaaS software application available at www.RegistryConnect.com.

  10. “Services” means any of the various services described under the heading “Services” or otherwise accessed via the Site, except as limited under the heading “Limitations on the Services,” that AssuriCare provides through the Site or any other channels, including over the telephone.

  11. “Site” means www.AssuriCare.com, www.RegistryConnect.com and any other AssuriCare branded websites, web pages, mobile applications, technology platforms and mobile websites operated by AssuriCare LLC.

  12. “Users” means individuals who are authorized by Customer to use the Services, and who have been supplied user identifications and passwords by Customer (or by AssuriCare at Customer’s request). Users may include, but are not limited to, Customer’s employees, Clients, Caregivers, consultants, contractors and agents, third parties with which Customer transact business, Clients, Client family members and other service providers to the Clients such as a Client’s physician, trust manager or geriatric care manager.

3. SERVICES

  1. Provision of Services. Subject to the terms and conditions of this Agreement, AssuriCare shall make the Services selected under “Products and Services Ordered” on an applicable Order Form available to Customer pursuant to this Agreement during the term of this Agreement. Generally, AssuriCare offers various Services for users tailored to the consumer-directed care model for home care and as may change from time to time at AssuriCare’s discretion: we process client ACH and credit card payments; enable caregiver registries to facilitate care-matching and determine caregiver availability; disburse weekly caregiver payments and registry fees; issue year-end tax reporting and filing; facilitate long-term care insurance submission; provide caregiver electronic visit verification; and offer electronic billing solutions. AssuriCare reserves the right to discontinue any or all of the existing services or introduce new services at any time for any reason. AssuriCare has no agency, employment or partnership relationship with the caregiver registries it contracts with, with Clients or with Caregivers.

  2. If “RegistryConnect” is selected on the applicable Order Form, then subject to the terms and conditions of this Agreement, AssuriCare hereby grants to Customer a limited, non-exclusive, non-transferable (except as permitted by Section 14 below) license, without the right to sublicense, to use RegistryConnect solely for its own internal business purposes.

  3. If “Client and Caregiver Billing and Collections” is selected on the applicable Order Form, then AssuriCare will make reasonable efforts to contract directly with Clients and/or Billing Sources for the use of the Services by Clients and Caregivers, typically via provision to Customer of a paper or electronic Client enrollment form and contract for distribution to Clients or Billing Sources. AssuriCare Client and Caregiver Billing and Collections Services are described in this Agreement and on the AssuriCare.com public website, and may change from time to time at AssuriCare’s discretion. AssuriCare will generally collect and process payments via ACH, credit cards and checks from referred Clients on a weekly basis, such funds including Caregiver payments, the AssuriCare Billing and Collections Processing Fees, and any Registry fees or Customer fees (collectively “Customer Fee”) as agreed to between the Customer and the Clients. AssuriCare shall disburse the Client funds first to Caregiver payments, then to AssuriCare Billing and Collections Processing Fees, then to the Customer Fees. AssuriCare will subtract from Customer Fees any RegistryConnect PCPM fees owed by Customer at the rates specified on the Order Form. AssuriCare will not be responsible for verifying the accuracy of any information received from Caregivers, Clients or Customer, including but not limited to information related to pay method, pay rates, Customer Fee rates, time entries, work performed or hours worked. AssuriCare has the right to adjust future disbursements of the Customer Fees to Customer based on underpayments, overpayments, missed payments, discrepancies, or miscalculations. Customer agrees to assist AssuriCare in providing and gathering information and documents from Clients and Caregivers related to Clients’ use of AssuriCare Services, including but not limited to initial account setup and Caregiver payment rates, as negotiated between Clients and Caregivers and provided to Customer for administrative purposes only. Customer agrees to coordinate with AssuriCare on any collections activities involving a Client using AssuriCare Services. Customer will notify AssuriCare within one (1) business day of the Customer becoming aware that a Client using AssuriCare Services (a) has discontinued the Client’s relationship with Customer; (b) has changed the Caregivers providing care, whether due to the Client’s addition or discontinuation of a Caregiver’s services; (c) has agreed with a Caregiver to change the Caregiver’s pay rate; and/or (d) has provided information to Customer that might affect the provision of AssuriCare’s Services.

  4. If “Office Staff Payroll” is selected on the applicable Order Form, then AssuriCare will process a weekly or bi-weekly payroll for office staff of Customer, based on information gathered in the Site and from Customer directly. Customer is responsible for collecting all necessary employee documents and providing them in a timely manner to AssuriCare to enable correct pay rates, Customer and employee configurations and settings, reporting and filings. AssuriCare will provide and file specified quarterly and year-end reporting and filings for Customer and employees of Customer.

  5. Initial Data Entry. AssuriCare will perform initial data entry of Client, Client’s authorized representatives and Caregiver names and contact information, provided that Customer provides such data to AssuriCare in excel format with one line per applicable contact. AssuriCare provides data entry as a courtesy to Customer. Customer is responsible for reviewing the accuracy of all data entered by AssuriCare.

  6. AssuriCare will use commercially reasonable efforts to make the Site available 24 hours a day, 7 days a week, except for: (a) planned downtime (which AssuriCare shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond AssuriCare’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving AssuriCare’s employees), or Internet service provider failures or delays.

4. LIMITATIONS ON THE SERVICES

AssuriCare is not a provider of home care. AssuriCare does not, and is not qualified to, offer opinions, diagnoses, assessments or treatments related to home care or Client care needs. AssuriCare does not employ, monitor or supervise Caregivers or review their time records for accuracy. Customers and Clients are solely responsible for compliance with any and all applicable laws in connection with their respective relationships with Caregivers. For any employment relationship that may be established or deemed to be established, AssuriCare is not responsible for any compliance with or obligations under laws relating to unemployment, workers compensation, work authorization, payroll, tax, minimum wage, overtime, benefits, insurance and any other applicable laws. AssuriCare will not evaluate compliance with any term or condition relating to Customers’ services or Caregivers’ services to Clients. AssuriCare’s functions are in all respects ministerial and administrative on behalf of and in support of the parties to the contractual relationships AssuriCare creates with Customers and with Clients related to the Site and Services. AssuriCare does not perform background checks on Caregivers, verify Caregivers’ credentials, refer Caregivers to Clients, provide care-related instructions to Caregivers, provide advice on or opinions about the care provided by Caregivers to Clients, supervise the care provided by Caregivers to Clients, or determine any aspect of the relationships between and among Customers, Clients, and Caregivers.

Customers, Clients, and Caregivers are solely responsible for ascertaining and maintaining their respective compliance with applicable local, state and federal laws. Any issues concerning the foregoing must be resolved directly between and among the Customers, Clients and/or Caregivers.

5. ELIGIBILITY TO USE THE SITE AND SERVICES, ACCOUNT SET-UP, TERMINATION

To be eligible to use our Services, you must meet the following criteria:

  • You are eighteen (18) years of age or older. If you do not meet this age requirement, do not use, or register to use, the Site or Services on behalf of yourself or on behalf of another individual or entity;
  • If you are an individual, you must be permitted to legally work within the United States;
  • If you are an entity, you must be a validly formed and operating legal entity under applicable law;
  • You must have a valid email address to register for and use the Site and Services;
  • You understand and agree that all calls to and from AssuriCare may be recorded for quality purposes.

By registering or using the Services of AssuriCare, you represent, acknowledge and warrant that you have met the applicable eligibility requirements above, and that you have the right, authority and capacity to enter into these Terms and/or use the Services on behalf of yourself or on behalf of the registering individual or entity, and you commit to abide by all of these Terms, as applicable.

  1. Creating an Account. In order to use the Site, you are required to set up an account through the Site and meet the other applicable eligibility requirements and conditions described in these Terms. You will be guided through the steps to provide the required information to establish an active account. You will be required to select a unique user ID and password, along with other authentication requirements that may be required (collectively “Account Credentials”). You promise that all information you provide to us is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. You may not transfer or share your Account Credentials with any third parties, and you are solely responsible for maintaining the confidentiality of your Account Credentials. You acknowledge and agree that we rely on Account Credentials to know whether users accessing the Site and using our Services are authorized to do so. You are solely responsible for any and all use of your Account Credentials and account and all activities that occur under or in connection with your Account Credentials or account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Credentials. You agree not to register for more than one account, unless such additional accounts are requested by or required by AssuriCare. If you create an account on behalf of an individual or entity, you represent that you have the legal authority to bind such individual or entity to this Agreement and agree to provide us evidence of such legal authority upon request.

  2. Termination of Use or Registration. AssuriCare reserves the right, in its sole discretion, to immediately terminate any individual user’s access to all or part of the Site, to remove any account and/or any content provided by any individual user from the Site, and/or to terminate any user’s account, for any reason or no reason, with or without notice. Reasons that AssuriCare may take such action include, but are not limited to, AssuriCare’s determination that such user or users are not eligible to use the Services, have violated any Terms, are not suitable for participation as a registered user, or have misused or misappropriated Site content, including but not limited to use on a “mirrored,” competitive, or third party site. AssuriCare will not, and has neither the right nor the power to, terminate the relationships between or among Customers, Caregivers, and Clients. Following any termination of any user’s use of the Site or the Services, AssuriCare reserves the right to provide notice to other users with whom we believe the terminated user corresponded, including a Customer, Caregiver and/or Client.

6. RULES FOR USER CONDUCT AND USE OF SERVICES

  1. Exclusive Use. You are responsible for all activity on the Site using your login and using your account. You may not assign or otherwise transfer your account to any other individual or entity. If you are a Customer, you and individuals acting on your behalf may use your account only to operate a caregiver registry. If you are a Client, you may use your account only to manage, track, pay and receive reimbursement for the care provided to you by Caregivers referred by Customer. If you are a Caregiver, you may use your account only to facilitate your provision of care to Clients you were referred to by Customer.

    As a condition to your using the Site and Services, you represent and affirm:

    • That you understand that AssuriCare is a technology platform supporting consumer-directed care; and that AssuriCare is not engaged in providing any home care services, or any other services except for the Services described in these Terms;

    • That you understand any fees and/or reimbursements you receive as a Customer or Caregiver is a payment made by or on behalf of the Client, but not by AssuriCare;

    • That you will not knowingly, willfully, or negligently use the Site and Services if such use would be in violation of any applicable law, ordinance, or duty, contractual or otherwise, that you owe to AssuriCare and/or any third party;

    • That you will promptly notify AssuriCare if any component of your login credentials is lost, stolen, or otherwise compromised; and

    • That you acknowledge that AssuriCare relies on the truthfulness of these representations and affirmations in determining your eligibility to use the Site and Services.

  2. Content Restrictions. The following rules pertain to “Content,” defined as any communications, images, sounds, videos, messages, photos, audios, profiles, or accounts, and any other material, data, files and information, or any derivations or reproductions thereof, that you or other users publish, display, enter, post, upload, or transmit onto or through the Site or AssuriCare’s Services (“post”). By posting any Content while using our Service, you agree, represent and warrant as follows:

    • You are responsible for providing accurate, current, and complete information in connection with your registration for use of the Site and the Services;

    • You will register your account in your own legal name, even if you are acting on behalf of another individual or entity;

    • All Content you post will be in English, as the Site and Services are not currently supported in any other languages;

    • You will only post Content in any publicly accessible Site location that you intend to appear on the publicly accessible Site or Services, unless otherwise indicated;

    • You are solely responsible for any Content that you post on the Site, including transmission to other users. You will not post on the Site, including transmission to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, defamatory, racially offensive, religiously, or otherwise objectionable, offensive or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity), or advocate, promote or assist any unlawful act, such as (by way of example only) copyright infringement, violations of the Health Insurance Portability and Accountability Act of 1996 or computer misuse, or give the impression or suggest that any Content you post emanates from AssuriCare. You will not knowingly, willfully, or negligently post or provide inaccurate, misleading, defamatory, or false Content either to AssuriCare or to any other user. All opinions stated as part of Content must be genuinely held;

    • You have the right and authority to post all information you post about yourself or others, including without limitation that you have valid authorization from a parent or guardian of any minor who is the subject of any Content you post to post such Content;

    • AssuriCare is not obligated to but retains the right and may at any time review and delete any Content, in each case in whole or in part, that in the sole judgment of AssuriCare violates these Terms or might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site or others;

    • You have the right to, and hereby grant, to AssuriCare, its affiliates, licensees and successors an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute your Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing (except for (i) personally identifying information (“PII”) and (ii) protected health information as defined by the Health Insurance Portability and Accountability Act of 1996 (“PHI”)). You further represent and warrant that public posting and use of your Content (except for personally identifying information and protected health information as defined by the Health Insurance Portability and Accountability Act of 1996) by AssuriCare will not infringe or violate the rights of any third party;

    • Your use of the Site, including but not limited to the Content you post on the Site, must be in accordance with any and all applicable laws and regulations;

    • AssuriCare is not responsible for any claims resulting from inaccurate, untimely or incomplete Content provided by users;

    • Content posted by users, and not directly by AssuriCare, is that of the respective authors. Such authors are solely responsible for such Content. AssuriCare does not: (i) guarantee the accuracy, completeness, or usefulness of any Content on the Site or available through the Services, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Services; and

    • Under no circumstances will AssuriCare or its affiliates be responsible for any loss or damage resulting from your reliance on information or other Content posted, or from comments made about you on the Site by other users.

  3. Prohibited Uses. By using the Site or Services of AssuriCare, you agree that you will not under any circumstances:

    • Use the Site, Services, or any information or Content contained therein in any way that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;

    • Use the Site or Services for any unlawful purpose, or for the promotion of illegal activities;

    • Harass, abuse or harm another individual, entity or group, or attempt to do the same;

    • Use another user’s AssuriCare account unless you have the legal authority to act on behalf of such user;

    • Provide false or inaccurate information when registering an account on AssuriCare or using the Services;

    • Interfere or attempt to interfere with the proper functioning of AssuriCare’s Services, including without limitation the operation of the Site;

    • Make any automated use of the Site or the Services, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;

    • Bypass any robot exclusion headers or other measures we take to restrict access to the Site or use any software, technology, or device to scrape, spider, or crawl the Site or harvest or manipulate data; or

    • Publish or link to malicious content including without limitation any malware, viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, or intended to damage or disrupt another user’s browser or computer or access to the Services.

  4. In order to protect users from prohibited activity, we reserve the right to take appropriate actions. Should AssuriCare find that you violated these Terms, or for any other reason, AssuriCare reserves the right, at its sole discretion, to immediately terminate your access and/or use of the Site and Services.

  5. Further, in order to protect the integrity of the Site and the Services, AssuriCare reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Site. It shall be a violation of these Terms to use any browser or technology which alters, conceals, or hides your IP address.

7. TEXT MESSAGES

If you provide us with a mobile phone number for contacting Customer through the Site or otherwise, you expressly consent to accept and receive communications from us, via text messages, telephone calls, and push notifications to the mobile phone number you provide to us. Standard text messaging and/or phone charges applied by your mobile phone carrier will apply to our text messages and telephone calls. Your express consent to receive text messages includes text messages transmitted by an automated telephone dialing system or other automated means, sent by or on behalf of AssuriCare and/or its affiliated companies. Such text messages will contain information concerning the provision of registry services, including, for example, an alert regarding the availability of a statement of Customer Fee payments.

If a mobile phone number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You represent that you have received, and are authorized to convey to us, the consent of any authorized users on your mobile phone account to be contacted by us as described in this Section.

You agree that all consents provided in this Section will continue unless you inform us by reasonable means that you revoke consent. You may revoke consent for us to send you automated text messages at any time by replying with the word “STOP” to a text message from us. You also may revoke your consent by contacting us using the contact information provided below.

8. LOCATION INFORMATION

AssuriCare collects location information from Caregivers to help us provide quality service to Clients. In particular, we may collect the precise location of a Caregiver’s mobile device (latitude and longitude) when the AssuriCare app is running in the foreground or background of the Caregiver’s mobile device. We use such location information to help us electronically verify visits and confirming a Caregiver’s location when starting and stopping a shift for a Client. If a Caregiver chooses to disable the location feature through the mobile device or browser settings, AssuriCare will not receive precise location information from the Caregiver’s device, which will interfere with the efficient function of our business. Because of the importance of Caregivers’ location to AssuriCare’s Services, Caregivers are required to allow AssuriCare to collect location information about them from thirty minutes before each shift until the end of each shift. By using the Site and the Services, you agree to allow AssuriCare to collect the above-referenced location information.

9. PAYMENT POLICY

  1. PCPM Fees. Customer shall pay AssuriCare the Per-Client-Per-Month Fees (“PCPM Fees”) set forth in the Order Form. On the Effective Date, Customer shall pay a fee equal in amount to the Initial Monthly Payment Amount set forth on the Order Form. After the effective date, Customer shall pay an amount equal to the number of active Clients in the applicable period multiplied by the PCPM Fee listed on the applicable Order Form. For the purposes of this section, an “Active Client” shall be a Client who receives at least one visit or service from a Caregiver during the applicable monthly period regardless of payment method or payment status of Client. Except as otherwise specified herein or on the Order Form, (i) fees are quoted and payable in United States dollars, and (ii) fees are based on the number of Clients and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable (except as expressly set forth herein). PCPM Fees are based on monthly periods that begin on the Effective Date (as defined in the Order Form) and each monthly anniversary thereof; therefore, PCPM Fees for Client subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the term.

  2. Billing and Collections Fees. If “Client and Caregiver Billing and Collections” is selected on the applicable Order Form, AssuriCare will collect Client funds on a weekly basis for the duration of the period that a Caregiver provides home care services to the Client using the Site or the Services. AssuriCare will disburse the Client funds to the Caregiver(s) and to the Customer by direct deposit. Pursuant to the applicable Service Agreement between AssuriCare and each Client, AssuriCare will retain Client funds in the amount of any service fees owed to AssuriCare by that Client at the rates then in effect. If “Customer pays no Processing Fees” is selected on the Order Form, all processing fees owed for services will be debited from collected Customer Fees and the net amount will be deposited into your designated account within two weeks of the applicable processing date. If “Customer pays all Processing Fees” is selected on the Order Form, all processing fees owed for services will be collected from clients directly and the gross collected Customer Fees collected from all Clients will be deposited into your designated account within two weeks of the applicable processing date. If “Customer pays ACH Processing Fees” is selected on the Order Form, processing fees in the percentage amount listed on the Order Form will be debited from collected Customer Fees and the net Customer Fee amount will be deposited into your designated account within two weeks of the applicable processing date. Any remaining or excess service Processing Fees owed will be collected directly from Clients. You agree to complete and execute a direct deposit authorization form provided by AssuriCare and provide an updated direct deposition authorization form as needed. AssuriCare reserves the right, at any time, to modify its fees and/or billing methods.

  3. Invoicing and Payment. Except as otherwise agreed to by the Parties in writing, invoicing and payment shall be handled by the Parties in accordance with this Section 9. Customer shall provide AssuriCare with valid and updated credit card or bank account information. Customer hereby authorizes AssuriCare to charge that credit card or bank account for the SaaS Subscription Fees during the term of this Agreement. Without limiting Customer’s rights under this Agreement, or at law, all payments by Customer are non-refundable (except as expressly set forth herein). For payments made by Customer, upon request AssuriCare will provide a receipt evidencing payment. Customer is responsible for maintaining complete and accurate billing and contact information for the Services. Customer is also responsible for providing updated credit card information should a new card issue or an account close or change.

  4. Overdue Charges. Except as otherwise agreed to by the Parties in writing, if any payment is not received from Customer when due, then, at AssuriCare’s discretion, (a) such charges may accrue late interest at the rate of 2.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date the payment was due until the date paid, and (b) AssuriCare may require future payments or a deposit to be made in advance.

  5. Suspension of Services and Acceleration. If any amount owing under this Agreement or any other agreement for AssuriCare’s services is five or more days past due, AssuriCare may, without limiting AssuriCare’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend AssuriCare’s Services to Customer until such amounts are paid in full.

  6. taxes. Unless otherwise expressly stated, AssuriCare’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases in connection with this Agreement. If AssuriCare has the legal obligation to pay or collect Taxes for which Customer are responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides AssuriCare with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, AssuriCare is solely responsible for taxes assessable against it based on AssuriCare’s income, property and employees.

10. TERM AND TERMINATION

  1. Term of Agreement. This Agreement commences on the Effective Date and, unless terminated sooner as provided herein, continues for the initial term specified on the Order Form (“Initial Term”). Following the end of the Initial Term, this Agreement will renew automatically for successive renewal terms as specified on the Order Form (each, a “Renewal Term”) unless either Party notifies the other in writing of its intent not to renew this Agreement at least 90 days prior to the end of the then-current term. Fees for Renewal Terms will be the same unless otherwise set forth in the Order Form or unless AssuriCare notifies Customer at least 100 days prior to the end of the then-current term that the fees will be increasing. In the event of such notice, the fees will be at AssuriCare’s rates set forth in its notice.

     

  2. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon 30 days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, except that the cure period for non-payment is five days, or (ii) upon 5 days’ written notice by a Party if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

     

  3. Early Termination. Notwithstanding anything in this Agreement, this Agreement may be terminated by Customer for convenience upon payment of all outstanding fees for the then-current term of the contract, and any Implementation Fee listed in the applicable Order Form should the Customer decide to terminate the Agreement during the Initial Term. Customer acknowledges and agrees that (i) such payment is a genuine pre-estimate of the loss that AssuriCare would incur upon Customer’s premature termination of this Agreement because AssuriCare will allocate substantial staff and other resources to serve Customer, and AssuriCare would incur substantial costs in reallocating such staff and other resources upon premature termination by Customer; and (ii) such payment is not a penalty. Any dispute, claim or controversy arising out of or relating to early termination by the Customer or the breach, termination, enforcement, interpretation or validity of this Section 10.C, including the determination of the scope or applicability of this Section 10.C, shall be submitted to and determined by final and binding arbitration as described herein.

     

  4. Effect of Termination. Upon any termination for cause by AssuriCare, Customer shall, as a reasonable estimate of the actual damages and not a penalty, pay an amount equal to the fees that would be due over the remainder of the then-current term. In no event will any termination relieve Customer of the obligation to pay the fees payable to AssuriCare for the period prior to the effective date of termination.

     

  5. Return of Customer’s Data. Upon request by Customer made within 30 days after the effective date of termination of this Agreement, AssuriCare will make available to Customer for download a file of Customer’s Data client and caregiver profile data in comma separated value (.csv). After that 30-day period, AssuriCare has no obligation to maintain or provide any of Customer’s Data and may thereafter, unless legally prohibited, delete all of Customer’s Data in AssuriCare’s systems or otherwise in AssuriCare’s possession or under AssuriCare’s control.

     

  6. Non-Exclusive Remedy. Termination or expiration of this Agreement, in part or in whole, shall not limit either Party from pursuing other remedies available to it, nor shall either Party be relieved of its obligation to pay all fees that are due and owing under this Agreement through the effective date of termination. Neither Party will be liable to the other for any damages resulting from termination as permitted herein.

11. PROPRIETARY RIGHTS

  1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, AssuriCare reserves all rights, title and interest in and to the Services and the Site, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. There are no implied rights.

     

  2. Restrictions. Customer shall not (i) permit any third party to access the Services except as expressly permitted herein or on the Order Form, (ii) modify or create derivate works of the Services or the Site, (iii) copy, frame or mirror any part or content of the Services or the Site, other than copying or framing on Customer’s own intranets or otherwise as reasonably required for Customer’s own internal business purposes, (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or the Site, (v) remove any proprietary notices from the Services or the Site or any other AssuriCare materials furnished or made available hereunder, or (vi) access the Services or the Site in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services or the Site.

12. CONFIDENTIALITY

  1. Definition of Confidential Information. As used herein, “Confidential Information” means all non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

     

  2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (ii) use any Confidential Information of the Disclosing Party solely to perform this Agreement or exercise rights hereunder, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

     

  3. Protection of Customer’s Data. Without limiting the above, AssuriCare shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data. AssuriCare shall not (a) modify Customer’s Data, (b) disclose Customer’s Data except as compelled by law, as expressly permitted by this Agreement or as expressly permitted in writing by Customer, or (c) access Customer’s Data except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

     

  4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

     

  5. Terms of Agreement. The Parties agree that the terms of this Agreement are considered Confidential Information of both Parties. Each Party may provide a copy of this Agreement in confidence to its advisors, counsel, any bona fide potential investor, investment banker, acquirer, merger partner or other potential financial partner, or as required by governmental action, including action by the United States Securities Exchange Commission or its equivalent, and in connection with legal action or proceedings concerning this Agreement.

13. DISCLAIMERS; LIMITATIONS; WAIVERS; INDEMNIFICATION

  1. Site Content. The Services made available on the Site, and any information and materials contained on the Site, including text, graphics, information, links or other items are provided “as is” and without any warranties of any kind, including, without limitation, any express warranties, warranties of merchantability, warranties of fitness for a particular purpose, warranties of workmanlike quality, or any other implied warranties. Opinions, advice, statements, offers, or other information or content made available through the Services, but not directly by AssuriCare, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.

    User content is primarily generated by information provided by that user or other users, and we do not control or verify the accuracy of such content as a general matter. AssuriCare does not assume any responsibility for the accuracy or reliability of any information provided by users on or off the Site.

     

  2. Disputes Among Clients, Caregivers and Customer. Other than this Agreement, AssuriCare is not a third-party beneficiary to any agreement or relationship entered into between Clients, Caregivers and Customers. Any issues concerning the conduct of Clients, Caregivers and/or Customers, including without limitation Client’s obligation to pay a Caregiver or a Customer, the referral services provided by Customer, or the care services received by Client, must be resolved by and among the applicable Clients, Caregivers, and Customer. AssuriCare will not be held responsible, and expressly disclaims any liability whatsoever, for any claims, demands or damages, direct or indirect, of any kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such issues. By using this Site or our Services, you represent, understand, and expressly agree to hold AssuriCare harmless for any claim or controversy that may arise from any disputes among you and any Client, Caregiver, Customer or other user(s) of the Site or Services.

     

  3. Limitation of Liability. Incidental Damages and Aggregate Liability. In no event will AssuriCare be liable for any indirect, special, incidental, or consequential damages, losses or expenses arising out of or relating to the use or inability to use the Site or Services, including without limitation damages related to any information received from the Site or Services, removal of content from the Site, including account information, or in connection with any termination of your ability to access the Site or Services, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if AssuriCare, or representatives thereof, are advised of the possibility of such damages, losses or expenses.

    UNDER NO CIRCUMSTANCES WILL ASSURICARE’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION(S) WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE AMOUNT OF $1,000.00.

    This limitation of liability shall be construed broadly, and shall specifically include, without limitation, claims based upon negligence, claims arising out of the termination of any user’s account, claims based upon a determination of an individual’s or entity’s ineligibility to use the Site or the Services (including claims arising under the Fair Credit Reporting Act), but shall not apply to intentional misconduct or claims for personal injuries.

     

  4. Indemnification.

    1. Indemnification by AssuriCare. AssuriCare agrees to defend, indemnify and hold harmless Customer and its officers, directors, members, employees, successors and assigns from and against all obligations, disbursements, losses, liabilities, deficiencies, penalties, interest, claims, damages, actions, proceedings, taxes, settlements, judgments, and costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with any breach by AssuriCare of this Agreement or provision of AssuriCare Services.

    2. Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless AssuriCare and its officers, directors, members, employees, successors and assigns from and against all obligations, disbursements, levies, losses, liabilities, tax consequences, deficiencies, penalties, interest, claims, damages, actions, proceedings, taxes, tax consequences, settlements, judgments, and costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with: (i) any breach of this Agreement by Customer; (ii) any act or omission by Customer or its employees in the course of Customer’s business operations resulting in a claim or alleged liability asserted against AssuriCare; (iii) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (iv) any allegation that any materials that you submit to or transmit through us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (v) any other activities by you in connection with the Site and Services; (vi) any decisions by a third-party payer related to coverage, non-coverage, or partial coverage of Clients’ claims for payment or insurance; (vii) AssuriCare’s reliance on information received from Customer, Caregivers, and/or Clients as accurate and complete; (viii) failure to process or delayed payment of Caregiver payments or Customer Fees due to a payment dispute or a Client’s failure to pay; (ix) any misclassification or employment-related claim or alleged liability asserted against AssuriCare related to Clients or referred Caregivers utilizing AssuriCare’s Services or RegistryConnect; and (x) if Customer utilizes Office Staff Payroll, any and all federal, state, and local taxes, related penalties and/or interest, and processing of tax withholdings and deductions for Customer employees in reliance on information provided by Customer and/or Customer employees. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person or entity.

    3. No user has actual or apparent authority to sign agreements on behalf of AssuriCare or bind AssuriCare to a contract. You hereby agree to promptly defend AssuriCare against any losses, claims, damages, liabilities or expenses connected with the Site and/or the Services, but will not settle without consulting AssuriCare and obtaining its prior written consent. You will allow AssuriCare to participate, through separate counsel, in the defense of any such loss, claim or other action. You agree to not hold yourself out as an employee, agent or authorized representative of AssuriCare.

14. ARBITRATION AGREEMENT

  1. Agreement to Arbitrate. This Section is referred to in these Terms as the “Arbitration Agreement” and applies to all users of the Site. You and AssuriCare agree that any and all disputes or claims that have arisen or may arise between you and AssuriCare, whether relating to these Terms or otherwise, shall be resolved exclusively through final and binding arbitration, except that each Party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a Party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. All remedies available in court are available through arbitration. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all Parties. The Arbitration Agreement will survive any termination of these Terms.

     

  2. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND ASSURICARE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS YOU AND ASSURICARE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL SEEKING RELIEF. IF THIS SPECIFIC PARAGRAPH IS HELD UNENFORCEABLE, THEN THE ENTIRETY OF THE ARBITRATION AGREEMENT WILL BE DEEMED VOID.

     

  3. Pre-Arbitration Dispute Resolution. AssuriCare is always interested in resolving disputes amicably and efficiently. Before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at billing@assuricare.com or at AssuriCare, LLC, ATTN: Michael Gilbert, 100 5th Avenue Suite 4010, Waltham, MA 02451.

     

  4. Arbitration Procedures. Arbitration will be conducted by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes then in effect (collectively, the “AAA Rules”), except as modified by this Arbitration Agreement. For information on the AAA, visit its website, www.adr.org, and its consumer arbitration page, www.adr.org/consumer. To commence an arbitration, you must complete a Demand for Arbitration, submit it to the AAA, and send a copy to AssuriCare at AssuriCare, LLC, ATTN: Michael Gilbert, 100 5th Avenue Suite 4010, Waltham, MA 02451. See the Demand for Arbitration form at www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf. The arbitration shall be held in the county where you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, the arbitration will be conducted solely on the basis of documents you and AssuriCare submit to the arbitrator, unless either Party requests 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.

     

  5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA's Rules, unless otherwise provided in this Agreement to Arbitrate. Each Party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or brought for an improper purpose, you agree to reimburse AssuriCare for all fees associated with the arbitration paid by AssuriCare on your behalf that you otherwise would be obligated to pay under the AAA’s rules.

     

  6. Severability. If the Agreement to Arbitrate or the Prohibition of Class and Representative Actions and Non-Individualized Relief paragraphs are held unenforceable, then the entirety of the Arbitration Agreement will be deemed null and void. If any other term or provision of this Arbitration Agreement is held unenforceable, the Parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the Parties’ intent, and this Arbitration Agreement shall be enforceable as so modified.

     

  7. Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, if AssuriCare makes any change to this Arbitration Agreement (other than a change to a notice address or website link) after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), (1) that change shall not apply to any claim that was filed in a legal proceeding prior to the effective date of the change, and (2) you may reject any such change by providing AssuriCare written notice of such rejection by mail to: AssuriCare, LLC, ATTN Michael Gilbert, 100 5th Avenue Suite 4010, Waltham, MA 02451 or by email from the email address associated with your Account to: billing@assuricare.com within 30 days of the date such change became effective, as indicated by the “Last Updated” date above.

15. MISCELLANEOUS PROVISIONS

  1. Entire Agreement. These Terms and any executed Order Form supersede any and all prior Terms, agreements and understandings, oral or written, express or implied. Specifically excepted from the scope of this provision are any agreements between you and AssuriCare entitled “Referral Agreement” and/or “Service Agreement” (together with any addenda, the “Related Agreements”), which shall be considered contemporaneous writings to be construed in tandem with this Agreement. This is a merger clause for purposes of the parol evidence rule, and is intended to completely integrate the entirety of the agreement between you and us, except as to the Related Agreements.

     

  2. Marketing. AssuriCare may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Services in its advertising, marketing and promotional materials.

     

  3. Age Restrictions. AssuriCare will not knowingly collect any information from individuals under 18. You must identify your age during the registration process, and we do not assume any responsibility for any misrepresentations regarding your age when using this Site. Should we determine that you do not meet the age requirements for using our Site or Services, your registration will be terminated immediately.

     

  4. Copyright Notices. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services are: (a) copyrighted by us and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. The Site or Services may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and without the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to the Site or Services. Nothing in these Terms grants you any right to make or receive delivery of a copy of the Site or Services or to obtain access to our Site or Services except as generally and ordinarily permitted through the Site according to these Terms. Furthermore, nothing in these Terms will be deemed to grant, by implication, estoppel or otherwise, a license to our Site or Services. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of AssuriCare, our affiliates or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Any use of third-party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by these Terms.

     

  5. Copyright Complaints. It is AssuriCare’s policy to respond to notices of alleged copyright infringement with the Digital Millennium Copyright Act (“DMCA”). If you believe any materials accessible on or from our Site infringe your copyright, you may request removal of those materials (or access thereto) from the Site by contacting AssuriCare’s copyright agent (identified below) and providing the following information:

    • Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.

    • Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.

    • Your name, address, telephone number and (if available) e-mail address.

    • A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.

    • A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.

    • A signature or the electronic equivalent from the copyright holder or authorized representative.

    AssuriCare’s agent for copyright issues relating to this Site is as follows: Copyright Agent, AssuriCare, LLC, ATTN: Michael Gilbert, 100 5th Avenue Suite 4010, Waltham, MA 02451.

    In an effort to protect the rights of copyright owners, AssuriCare maintains a policy for the termination, in appropriate circumstances, of users who are repeat infringers.

     

  6. Governing Law and Jurisdiction. These Terms, and any dispute between you and AssuriCare, shall be governed by the laws of the Commonwealth of Massachusetts without regard to principles of conflicts of law, except that the Federal Arbitration Act shall govern the Arbitration Agreement.

     

  7. Miscellaneous. Nothing in this Agreement shall be construed as making either Party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither Party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the Party to be bound. The invalidity, illegality or unenforceability of any term or provision of these Terms shall in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the Parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified. A Party’s waiver of any provision of this Agreement or a breach thereof shall be effective only if in writing and shall not be or be construed as a waiver of any other provision or breach. Failure to enforce any provision of this Agreement shall not constitute nor be or be construed as a waiver of any provision thereof. Each of AssuriCare’s fiduciaries, administrators, officers, directors, affiliates, subsidiaries, parents, successors, and assigns is expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you. This Agreement will be binding on and will inure to the benefit of the legal representatives, heirs, executors, successors and assigns of the Parties. The following terms of this Agreement shall survive termination or expiration of this Agreement: Sections 9 (Payment Policy), 10 (Term and Termination), 11 (Proprietary Rights), 12 (Confidentiality), 13.C (Limitation of Liability), 13.D (Indemnification), 14 (Arbitration Agreement), and 15 (Miscellaneous).

     

  8. Contact Information. If you have any questions or need further information as to the Site or Services provided by AssuriCare, or need to notify AssuriCare as to any matters relating to the Site or Services please contact AssuriCare at: billing@assuricare.com.