These terms of service constitute a legally binding agreement (the “Agreement”) between you and CareCar, Inc. (“CareCar,” “we,” “us” or “our”) governing your use of the CareCar application, website, and technology platform (collectively, the “CareCar Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND CARECAR HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 15 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST CARECAR TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A SERVICE PROVIDER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 15.
By your continued use of the Services (as defined below), you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions contained in Section 15) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CARECAR PLATFORM OR USE THE SERVICES.
The CareCar Platform
The CareCar Platform provides a private marketplace where approved persons who seek non-emergent transportation to health-related destinations, and other personal care services (“Members”) can be matched with approved persons capable of providing those services. (“Service Providers”). For purposes of this Agreement, the non-emergency transportation and personal care services provided by Service Providers to Members that are matched through the Platform shall be referred to collectively as the “Services”. The CareCar Platform also provides scheduling, coordinating, and management access to responsible and authorized persons (“Agents”) in order to ensure quality Services. Service Providers, Members, and Agents are collectively referred to herein as “Users". Each User shall create a User account or have a User account created on his or her behalf, in the case of some Service Providers, Members, Agents, that enables access to the CareCar Platform. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Service provided by a Service Provider to a Member shall constitute a separate agreement between such persons, or between a Member and responsible and authorized person(s) on Member’s behalf. A User who wishes to provide services as a Service Provider must agree to the additional terms and conditions set forth in our Service Provider Addendum, which is incorporated herein by reference and which shall form part of this Agreement between you and CareCar. A copy of the Service Provider Addendum can be viewed online, however CareCar will provide potential Service Providers with a copy of the Service Provider Addendum for review and electronic signature prior to commencement of any such services.
Modification to the Agreement
In the event CareCar modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. CareCar reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the CareCar Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
Eligibility
The CareCar Platform may only be used by individuals and entities who can form legally binding contracts under applicable law. The CareCar Platform is not available to children (persons under the age of 18) or Users whose User Accounts are either temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
Payments
If you are a Service Provider, you will receive payment for your provision of Services pursuant to the terms of the Service Provider Addendum, which shall form part of this Agreement between you and CareCar.
CareCar Communications
By becoming a User, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from CareCar, its affiliated companies and/or Service Providers, may include but are not limited to: operational communications concerning your User account or use of the CareCar Platform or Services, updates concerning new and existing features on the CareCar Platform, communications concerning promotions run by us or our third- party partners, and news concerning CareCar and industry developments. Standard text messaging and data charges applied by your mobile carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO 46080 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE CARECAR PLATFORM OR THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM CARECAR (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO 46080 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE CARECAR PLATFORM OR THE SERVICES.
Your Information
As used in this Agreement, Your “Information” refers to any information you provide, publish or post to or through the CareCar Platform (including any profile information you provide) or send to other Users (including via in-application feedback, any email feature, or through any CareCar-related Facebook, Twitter or other social media posting). You agree and acknowledge that you will be required to provide us with your Information to create a User account that will allow you to use the CareCar Platform and participate in the Services. (“User Account”). You are solely responsible for maintaining the confidentiality of your User Account and password, and you agree to accept responsibility for all activities that occur under your User Account or password. You agree that the information you provide to us, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your User Account is no longer secure (e.g., in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), then you agree to immediately notify us.
To protect your User Account, keep your password confidential. You are responsible for the activity that happens on or through your User Account. Try not to reuse your User Account password on third-party applications. You understand and agree that we may assume that instructions from an individual associated with your User Account are authoritative and should be acted upon by us. You agree that you will not bring an action against us arising out of or related to any claimed unauthorized access using your User Account credentials. Under confirmed unauthorized use circumstances, we may take action to address your situation. If you learn of any unauthorized use of your password or User Account, change your password immediately, and contact us.
Our collection and use of personal information in connection with the CareCar Platform and Services is as provided in CareCar’s Privacy Policy located at Privacy Policy. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and acknowledge that we and other members of the public may rely on your Information as accurate, current and complete. To enable CareCar to use your Information, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or hereafter devised. CareCar does not assert any ownership over your Information; rather, as between you and CareCar, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.
You may be able to create or log-in to your CareCar User Account through online accounts you may have with third-party social networking sites (each such account, an "SNS Account"). By connecting to CareCar through an SNS Account, you understand that CareCar may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the CareCar Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
Restricted Activities
With respect to your use of the CareCar Platform and your participation in the Services, you agree that you will not:
impersonate any person or entity;
stalk, threaten, or otherwise harass any person, or carry any weapons;
violate any law, statute, rule, permit, ordinance or regulation;
interfere with or disrupt the Services or the CareCar Platform or the servers or networks connected to the CareCar Platform;
post Information or interact on the CareCar Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
use the CareCar Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Carecar Platform;
“frame” or “mirror” any part of the CareCar Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the CareCar Platform or any software used on or for the CareCar Platform;
rent, lease, lend, sell, redistribute, license or sublicense the CareCar Platform or access to any portion of the CareCar Platform;
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the CareCar Platform or its contents;
link directly or indirectly to any other web sites;
transfer or sell your User account, password and/or identification to any other party
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
cause any third party to engage in the restricted activities above.
Service Provider Representations, Warranties and Agreements
By providing Services as a Service Provider on the CareCar Platform, you represent, warrant, and agree that at all times during your provision of such Services:
You possess a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals and authority to provide transportation to Members in all jurisdictions in which you provide Services.
You own, or have the legal right to operate, the vehicle you use when providing Services, and such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind, including valid registration in its state of operation.
You will not: (i) engage in reckless behavior or otherwise violate any applicable laws while driving, (ii) drive in an unsafe or reckless manner, (iii) operate a vehicle that is unsafe to drive, (iv) permit an unauthorized third party to accompany you in the vehicle while providing Services, (v) provide Services as a Service Provider while under the influence of alcohol or drugs, or (vi) take action that harms or threatens to harm the safety of the CareCar community or third parties.
You will not disclose any private Member information, including information that may be considered Protected Health Information ("PHI") without the prior written consent of the Member.
You will only provide Services using the vehicle that has been reported to, and approved by CareCar, and for which a photograph has been provided to CareCar, and you will not transport more passengers than can securely be seated in such vehicle with functional safety belts (and no more than seven (7) passengers in any instance).
You will not make any misrepresentation regarding CareCar, the CareCar Platform, the Services, your vehicle or your status as a Service Provider.
You will not, while providing the Services, operate as a public carrier or taxi service, accept street hails, charge for rides, demand that a Member pay in cash, or use a credit card reader, such as a Square Reader, to accept payment or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
You will not attempt to defraud CareCar or Members on the CareCar Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable payments for the Service(s) in question in addition to reporting you to applicable law enforcement authorities.
You will make reasonable accommodation for Members and/or for service animals, as required by law.
You agree that we may obtain information about you, including your criminal and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
You have a valid policy of auto liability insurance with livery service endorsement (in coverage amounts of at least $50,000 per occurrence and consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide Services.
You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
You agree to abide by the CareCar Community Guidelines.
Intellectual Property
All intellectual property rights in the CareCar Platform shall at all times be owned by CareCar absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the CareCar Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of CareCar. CareCar shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your approval or acknowledgment or compensation to you.
CareCar and other CareCar logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of CareCar in the United States and/or other countries (collectively, the “CareCar Marks”). If you provide Services as a Service Provider, CareCar grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the CareCar Marks solely in connection with providing the Services through the CareCar Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without CareCar’s prior written permission, which it may withhold in its sole discretion. The CareCar Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that CareCar is the owner and licensor of the CareCar Marks, including all goodwill associated therewith, and that your use of the CareCar Marks will confer no additional interest in or ownership of the CareCar Marks unto you but rather inures to the benefit of CareCar. You agree to use the CareCar Marks strictly in accordance with CareCar’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that CareCar determines to be nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that incorporate the CareCar Marks or any derivatives of the CareCar Marks other than as expressly approved by CareCar in writing in each instance; (2) use the CareCar Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the CareCar Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair CareCar’s rights as owner of the CareCar Marks or the legality and/or enforceability of the CareCar Marks, including, without limitation, challenging or opposing CareCar’s ownership in the CareCar Marks; (4) apply for trademark registration or renewal of trademark registration of any of the CareCar Marks, any derivative of the CareCar Marks, any combination of the CareCar Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the CareCar Marks; or (5) use the CareCar Marks on or in connection with any product, service or activity that is in violation of any applicable law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in CareCar’s sole discretion. If you create any materials bearing the CareCar Marks (in violation of this Agreement or otherwise), you agree that upon their creation CareCar exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the CareCar Marks or derivative works based on the CareCar Marks. You further agree to assign any interest or right you may have in such materials to CareCar, and to provide information and execute any documents as reasonably requested by CareCar to enable CareCar to formalize such assignment.
CareCar respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the CareCar Platform or Services infringe upon your copyrights, please visit our Copyright Policy page for information on how to make a copyright complaint.
Disclaimers
The following disclaimers are made on behalf of CareCar, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders:
CareCar does not provide transportation services, and CareCar is not a transportation carrier. It is up to the Service Provider to decide whether or not to provide a ride to a Member contacted through the CareCar Platform, and it is up to the Member to decide whether or not to accept a ride from any Service Provider contacted through the CareCar Platform. We cannot ensure that a Service Provider or Member will complete an arranged transportation service. We have no control over the quality or safety of the transportation that occurs as a result of the Services.
The CareCar Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the CareCar Platform and/or the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the CareCar Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the CareCar Platform will be corrected, or that the CareCar Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the CareCar Platform or Services.
We cannot guarantee that each Member is who he or she claims to be. Please use common sense when using the CareCar Platform and Services, including looking at the photos of the Service Provider or Member you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the CareCar Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Service Provider or Member prior to engaging in an arranged transportation service.
CareCar is not responsible for the conduct, whether online or offline, of any User of the CareCar Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings left in the car by Service Providers or Members. By using the CareCar Platform and participating in the Services, you agree to accept such risks and agree that CareCar is not responsible for the acts or omissions of Users on the CareCar Platform or participating in the Services.
CareCar expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the CareCar Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any information, personal or otherwise, that you disclose to other Users on the CareCar Platform or through the Services. Please carefully select the type of information that you post on the CareCar Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning CareCar or made available through the CareCar Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon as safe, truthful, reliable, legal, or accurate. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the CareCar Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the CareCar Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the CareCar Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither CareCar, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the CareCar Platform. Any of your Information, including geolocational data, which you upload, provide, or post on the CareCar Platform may be accessible to CareCar and certain Users of the CareCar Platform.
CareCar advises you to use the CareCar Platform with a data plan with unlimited or very high data usage limits, and CareCar shall not responsible or liable for any fees, costs, or overage charges associated with any mobile data plan or mobile provider you use to access the CareCar Platform.
The following paragraph applies to any version of the CareCar Platform that you acquire from the Apple App Store:
This Agreement is entered into between you and CareCar. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the CareCar Platform. CareCar, not Apple, is solely responsible for the CareCar Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
State and Local Disclosures
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at Disclosures. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
Indemnity
You will defend, indemnify, and hold CareCar including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the CareCar Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, without limitation, Service Providers, Members, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the CareCar Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party or applicable law; (4) your ownership, use or operation of a motor vehicle or passenger vehicle, including your provision of Services as a Service Provider; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
Limitation of Liability
IN NO EVENT WILL CARECAR, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “CARECAR” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE CARECAR PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE CARECAR PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CARECAR PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT CARECAR HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THEIR TERMS. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to CareCar; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 7 or breach of Section 8(a) through (i) of this Agreement. In addition, CareCar may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services or to operate the approved vehicle under applicable law, rule, permit, ordinance or regulation; (2) you fall below CareCar’s quality rating or cancellation/no-show threshold; (3) CareCar has the good faith belief that such action is necessary to protect the safety of the CareCar community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to CareCar’s reasonable satisfaction prior to CareCar permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to CareCar’s satisfaction (as determined in its sole discretion), this Agreement will not be permanently terminated. Sections 2, 5, 6 (with respect to the license), 9-10, 12-17, and 19 shall survive any termination or expiration of this Agreement.
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
(a) Agreement to Binding Arbitration Between You and CareCar.
YOU AND CareCar MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with CareCar ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and CareCar, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND CareCar. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the CareCar Platform, the Services, any other goods or services made available through the CareCar Platform, your relationship with CareCar, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by CareCar, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by CareCar and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND CareCar ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND CareCar MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND CareCar BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST CareCar, WHICH ARE ADDRESSED SEPARATELY IN SECTION 15(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and CareCar agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and CareCar agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and CareCar will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Members or Service Providers, but is bound by rulings in prior arbitrations involving the same Member or Service Provider to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (j) below and are otherwise required to pay a filing fee under the relevant AAA Rules, CareCar agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to CareCar, CareCar will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If CareCar initiates arbitration under this Arbitration Agreement, CareCar will pay all AAA filing and arbitration fees.
With respect to any Claims brought by CareCar against a Service Provider, or for Claims brought by a Service Provider against CareCar that: (A) are based on an alleged employment relationship between CareCar and a Service Provider; (B) arise out of, or relate to, CareCar’s actual deactivation of a Service Provider’s User account or a threat by CareCar to deactivate a Service Provider’s User account; (C) arise out of, or relate to, CareCar’s actual termination of a Service Provider’s Agreement with CareCar under the termination provisions of this Agreement, or a threat by CareCar to terminate a Service Provider’s Agreement; or (D) arise out of, or relate to, Fares (as defined in this Agreement, including CareCar’s commission on the Fares), tips, or average hourly guarantees owed by CareCar to Service Providers for Services, other than disputes relating to referral bonuses, other CareCar promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Service Provider Claims”), CareCar shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by CareCar pursuant to the fee provisions above). However, if you are the party initiating the Service Provider Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Members, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws CareCar may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, CareCar agrees [jb1] that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of CareCar’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (j) below, then CareCar will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and CareCar agree otherwise, any arbitration hearings between CareCar and a Member or Coordinator will take place in the county of your billing address, and any arbitration hearings between CareCar and a Service Provider will take place in the county in which the Service Provider provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, CareCar agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 15(c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration, however you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
(h) Severability.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Service Provider Claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against CareCar involving Service Provider Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Service Provider Claims in that particular class action. Instead, your Service Provider Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
(j) Opting Out of Arbitration for Service Provider Claims That Are Not In a Pending Settlement Action.
As a Service Provider, you may opt out of the requirement to arbitrate Service Provider Claims defined in Section 15(e)(3) (except as limited by Section 15(i) above) pursuant to the terms of this subsection. If you do not wish to be subject to this Arbitration Agreement with respect to Service Provider Claims, you may opt out of arbitration with respect to such Service Provider Claims, other than those in a Pending Settlement Action, by notifying CareCar in writing of your desire to opt out of arbitration for such Service Provider Claims, which writing must be dated, signed and delivered by: (1) electronic mail to arbitrationoptout@CareCar.com, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
General Counsel
CareCar, Inc.
120 Newport Center Drive
Newport Beach, CA 92660
In order to be effective, (A) the writing must clearly indicate your intent to opt out of this Arbitration Agreement with respect to Service Provider Claims that are not part of a Pending Settlement Action, (B) the writing must include the name, phone number, and email address associated with your User Account, and (C) the email or envelope containing the signed writing must be sent within 30 days of the date this Agreement is executed by you. Should you not opt out within the 30-day period, you and CareCar shall be bound by the terms of this Arbitration Agreement in full (including with respect to Service Provider Claims that are not part of a Pending Settlement Action). As provided in paragraph 15(i) above, any opt out that you submit shall not apply to any Service Provider Claims that are part of a Pending Settlement Action and your Service Provider Claims in any such Pending Settlement Action shall continue to be governed by the arbitration provisions that are contained in the applicable CareCar Terms of Use that you agreed to prior to the effective date of this Agreement.
Cases have been filed against CareCar and may be filed in the future involving Service Provider Claims. You should assume that there are now, and may be in the future, lawsuits against CareCar alleging class, collective, and/or representative Service Provider Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Service Provider Claims with CareCar under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against CareCar in an individual arbitration provision, except for the Service Provider Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Service Provider Claims under this Arbitration Agreement.
(k) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and CareCar may agree to first attempt to negotiate in good faith[jb2] any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and CareCar. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
Confidentiality
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to CareCar’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by CareCar for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of CareCar in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to CareCar with regard to any Confidential Information which you can prove (i) was in the public domain at the time it was disclosed by CareCar or has entered the public domain through no fault of yours; (ii) was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of CareCar; (iv) becomes known to you, without restriction, from a source other than CareCar without breach of this Agreement by you and otherwise not in violation of CareCar’s rights; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to CareCar to enable CareCar to seek a protective order or otherwise prevent or restrict such disclosure.
Relationship with CareCar
As a Service Provider on the CareCar Platform, you acknowledge and agree that you and CareCar are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and CareCar expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and CareCar; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind CareCar, and you undertake not to hold yourself out as an employee, agent or authorized representative of CareCar.
CareCar does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the CareCar Platform. You retain the option to accept or to decline or ignore a request for Services via the CareCar Platform, or to cancel an accepted request for Services via the CareCar Platform, subject to CareCar’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, CareCar shall have no right to require you to: (a) display CareCar’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying CareCar’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
Other Services
In addition to connecting Members with Service Providers, the CareCar Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the CareCar Platform to order a delivery of goods, purchase a digital item, request support at home from third parties and other local Service Providers (collectively, the “Other Services”). You understand and that the Other Services are subject to the terms and pricing of the third-party provider.
General
Except as provided in Section 15, this Agreement shall be governed by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any other substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by CareCar, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to CareCar shall be given by certified mail, postage prepaid and return receipt requested to CareCar, Inc., 120 Newport Center Drive, Newport Beach, CA 92660. Any notices to you shall be provided to you through the CareCar Platform or given to you via the email address or physical you provide to CareCar during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and CareCar with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
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