USER AGREEMENT (SENIORS)
Last updated 05/17/17
- No Joint Employment Relationship. THB is a software as a service [SaaS] product designed to help seniors and their families find, coordinate, and pay for in-home care via an on-line platform. This Agreement shall not render User a partner, agent of, or joint venturer with THB for any purpose. User understands and agrees that while THB has facilitated introductions to various third party services that User and the Helper may utilize for ease of payment to the Helper, of which THB will charge a service fee to the User for such introduction and facilitation, neither the service fee nor the facilitation of such third party services creates an employment relationship between THB and Helper or a joint employment relationship among THB, User, and Helper. User is responsible for compliance with all applicable laws governing the relationship between User and Helper, including all employment laws (as applicable).
- Limitations of THB’s Services. THB does not have control over the quality, schedule, timing, or legality of the services actually delivered by Helper, or of the integrity, responsibility or actions of User or the Helpers. THB provides a SaaS product to facilitate the introduction of Helpers to Seniors and tools to facilitate the agreement amongst Seniors and Helpers pertaining to payment. Any agreement between User and Helpers shall be individually negotiated, and User and Helpers are ultimately responsible for the decisions reached with respect to payment. Once terms are agreed, the parties shall notify THB of the third party payment service which the parties wish to utilize for Helper’s provision of services to User. THB shall facilitate the processing of such payments, as decided amongst Helper and User, and shall charge User a reasonable service fee for the provision of such services, as shall be decided in writing between THB and User.
- Background Checks. THB conducts background checks of Helpers via a third-party background checking agency, in accordance with applicable law. User expressly acknowledges that to the extent THB performs background checks on Helpers, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services.
- Insurance Coverage. The Helpers utilizing the THB platform have liability and theft insurance coverage offered through THB in addition to any other insurance they may hold.
- Mutual Agreement to Arbitrate. In the event of any dispute or claim relating to or arising out of this Agreement, the Terms, or the interactions and transactions between THB and User, THB and User agree that all disputes shall be fully resolved by confidential, binding arbitration conducted by a single neutral arbitrator through the American Arbitration Association (“AAA”) pursuant to the AAA’s Commercial Arbitration Rules, which are available online at the AAA’s website at www.adr.org or by requesting a copy from THB. The arbitration shall be located within Travis County, Texas. The arbitrator shall permit adequate discovery and is empowered to award all remedies otherwise available in a court of competent jurisdiction and any judgment rendered by the arbitrator may be entered by any court of competent jurisdiction. The arbitrator shall issue an award in writing and state the essential findings and conclusions on which the award is based. To the fullest extent permitted by applicable law, by signing this Agreement, THB and User both waive the right to have any disputes or claims tried before a judge or jury. The mutual promise by THB and User to arbitrate any and all disputes between them, rather than litigate them before the courts or other bodies, provides the consideration for this agreement to arbitrate. The parties agree that THB is engaged in transactions involving interstate commerce and that except as provided elsewhere in this Section, the Federal Arbitration Act shall govern the interpretation, enforcement and all proceedings pursuant to this arbitration agreement located within this Section. Notwithstanding the foregoing, this arbitration agreement does not prevent either party from seeking temporary or preliminary injunctive relief, as permitted by applicable state and federal law. THB AND USER AGREE THAT THEY EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both THB and User agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
- Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Texas, without giving effect to any choice of laws principles.
- 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 this Agreement shall in no way effect the validity, legality or enforceability of any other term or provision of this Agreement. 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 this Agreement shall be enforceable as so modified. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. The parties agree that facsimile, electronic, and scanned (.pdf) signatures shall be as effective as if originals.
- Introduction Fee for Use of Helper Outside SaaS Platform. User agrees that during the period User is a registered user of THB’s website (“Registration Period”) and for three months following the termination of User’s registration on THB’s website for any reason (such period, the “Introduction Fee Period”), User will not utilize, outside of THB’s SaaS platform, any Helper who provided services to User during the Registration Period, unless User has first paid a $5,000 introduction fee to THB.
- Incidental Damages and Aggregate Liability. In no event will THB be liable for any indirect, special, incidental, or consequential damages, losses or expenses arising out of or relating to this Agreement, even if THB or representatives thereof are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL THB’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT EXCEED THE SERVICE FEES RECEIVED BY THB FROM USER.
- Entire Agreement. This Agreement, and the Terms which are expressly incorporated herein by reference, constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.