TERMS AND CONDITIONS
HomeCareNear operated by OPEN HOME CARE, INC.
The Web site HomeCareNear.com and Services are provided by IM Care Consulting, LLC, a New York limited liability company located at 418 Broadway, STE R, Albany, NY, 12207, USA.
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
1.1. Definitions.
References to “Dispute” mean any claim, conflict, controversy, disagreement between the Parties arising out of, or related in any way to, these Terms (or any terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any terms contemplated by the Terms.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
References to the "Services" shall mean any and all services offered by us via the Web site, including but not limited to providing Users with a database of home health care services providers.
References to the “Terms” and/or “Agreement,” mean this, these Terms and Conditions as set forth herein.
References to “us,” “we,” “our,” "HomeCareNear", "HomeCareNear.com" and/or “Open Home Care”
References to the “Web site” mean the Web site bearing the URL www.HomeCareNear.com as well as any other site or social media outlet operated by us.
References to “you,” and/or “User” mean the User of the Web site, whether as a service provider, party interested in obtaining services from a service provider, or general Web site User.
1.2. Agreement to be Bound.
The following Terms and Conditions, together with the relevant information set out on the Web site, including any features and services available, such as RSS feeds, podcasts, video and photographs, publications, guides, and other materials are subject to the Terms and Conditions set forth below. Please read them carefully as any of use of the Web site constitutes an agreement, without acceptance, to be bound thereby by the User. By using the Web site, you represent that you are at least eighteen (18) years old, have read and understand the Terms and Conditions, and that you agree to be bound by these Terms and Conditions as set forth below. These Terms and Conditions are subject to the Privacy Policy, which also governs your use of the Web site and the Services as well as our Service Provider Listing Terms of Service.
SECTION II: GENERAL PROVISIONS; USE OF THE SERVICES
2.1. About Us.
At IM Care Consulting, LLC we provide Users with an informational archive that includes a database of home health care services providers.
2.2. Accuracy, Completeness and Timeliness of Information.
Though we endeavor to ensure that all data carried on the Web site is accurate and complete, errors do occur. Therefore, you agree and acknowledge that, due to the nature of the Services, we do not and can not guaranty that all information provided will be accurate, complete or current. The Web site should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. If you rely on any of the information provided by or on the Web site, you do so solely at your own risk. User shall be ultimately responsible for the accuracy, completeness and propriety of information provided to us and upon which User relies in making any decision.
2.3. Errors in the Web Site.
We do not warrant that any errors on the Web site will be corrected.
2.4. Modifications and Changes to Terms and Conditions.
We may modify, add to, suspend or delete these Terms and Conditions or other agreements, in whole or in part, in our sole discretion, at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Web site. Your use of the Web site after modification, addition or deletion of these Terms and Conditions shall be deemed to constitute acceptance by you of the modification, addition or deletion.
2.5. Modifications and Changes to the Web Site.
We may modify, add to, suspend, or delete any aspect of this Web site and/or Services offered by us, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, payments required to access certain content, and equipment needed for access or use.
2.6. Access to Web site.
Though we try to make the Web site available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Web site will be at all times available. We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the Web site.
2.7. Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Web site for any reason at any time in our sole and exclusive discretion, including but not limited to limiting the number of Users who may access the Web site.
2.8. Prohibited Uses of Web site.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Web site: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose of the Web site; (c) to violate any international, governmental, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Web site; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Web site. We reserve the right to terminate your use of the Web site for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
2.9. Technical Support.
We provide email support, (hereinafter “Technical Support.”) Technical Support may be requested by contacting us at office@homecarenear.com.
2.10. NO DOCTOR/PATIENT RELATIONSHIP.
AT NO TIME DOES HOMECARENEAR PROVIDE USERS OF THE WEB SITE WITH SPECIFIC MEDICAL ADVICE, AND ALL USERS AGREE AND ACKNOWLEDGE THAT NO DOCTOR/PATIENT RELATIONSHIP EXISTS BETWEEN A USER, OPEN HOME CARE, AND ANY THIRD PARTY AS A RESULT OF THE USE OF THE WEB SITE OR SERVICES. THE WEB SITE SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT MEDICAL ADVICE.
2.11. No Endorsement.
HomeCareNear acts as a listing service or directory to allow home health care services providers who comply with our policies and procedures to promote themselves via our Services. As an online information provider, we do not endorse or promote any law firm or legal service provider listed, and we have no control over the quality, expertise, or licensing status of any provider listed, the truth or accuracy of the listings, the ability of any provider listed to provide services, or the identity of any provider listed unless the same has chosen to participate in our third-party background check services. Users should undertake to perform their own due diligence, including performing reference checks and license verification, for any provider hired, and Users understand and acknowledge that HomeCareNear does not itself perform any verification or background checks on listed providers who may appear on the Web site. If you rely on any of the information provided by or on the Web site, you do so solely at your own risk.
SECTION III: INTELLECTUAL PROPERTY; PRIVACY
3.1. Intellectual Property Rights Not Waived.
This is an Agreement for access to and use of the Web site, and you are not granted a license to any software or intellectual property by these Terms and Conditions. The Web site is protected by U.S., and, where applicable, international intellectual property laws. The Web site belongs to us and are the property of us or our licensors (if any). We retain all ownership rights in the Web site.
Furthermore, some material displayed or transmitted on or via the Web site, including but not limited to guides, text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) may be owned by us and are protected by Grand Cayman and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided or in the event a Material is outside of copyright protection, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Web site, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on or via the Web site for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed via Web site without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to office@homecarenear.com.
You acquire no rights or licenses whatsoever in the Materials other than the limited right to use the Web site and the Services in accordance with these Terms and Conditions. Any of the Materials accessed or downloaded from the Web site and Services must be accessed or downloaded in accordance with the Terms and Conditions specified in this Agreement. We reserve any rights not expressly granted under these Terms and Conditions.
3.2. Grant of License to the Materials.
We may, from time to time and in our sole and exclusive discretion, grant a User, person or entity a non-exclusive, limited license to utilize the Materials for a derivative work of authorship. In such an event, said potential licensee must apply directly to us at office@homecarenear.com for the right to the same, and, if said license is granted, said licensee shall be required to provide citation and credit to HomeCareNear for the source material. Said licensee may further be required to pay a license fee for the right to the same.
3.3. Feedback.
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any Third Party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined by a court of law or arbitrator that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User's personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to us or our initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback, provided to us by Third Parties, or independently-developed or considered by us, shall be without obligation to you.
SECTION 4: THIRD-PARTY ADVERTISEMENTS, PROMOTIONS, AND LINKS
4.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from Third Parties on the Web site. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of Third-Party advertisers on the Web site.
4.2. Use of Third-Party Tools.
We may provide you with access to Third-Party tools over which we neither monitor nor have any control nor input, including but not limited to third-party background checks, drug screenings, and other such services.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional Third-Party tools.
Any use by you of optional tools offered through the Web site is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant Third-Party provider.
We may also, in the future, offer new services and/or features through the Web site, including but not limited to the release of new tools. Such new features shall also be subject to these Terms and Conditions.
4.3. Third-Party Links.
Certain content, products and services available via our Web site may include materials from Third-Parties.
Third-Party links on the Web site may direct you to Third-Party Web sites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any Third-Party materials or Web sites and/or services, or for any other materials, products, or services of Third-Parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any Third-Party with whom you connect via the services. Please review carefully the Third-Party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding Third-Party products should be directed to the Third-Party.
SECTION V: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
5.1. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
(A) YOU AGREE THAT USE OF THE WEB SITE IS AT YOUR SOLE RISK. NEITHER US NOR OUR AFFILIATES NOR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS WARRANT THAT THE USE OF THE WEB SITE SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(B) ANY INFORMATION PROVIDED VIA THE WEB SITE, DOWNLOADABLE SOFTWARE, PRODUCTS OR OTHER MATERIALS, WITHOUT LIMITATION, IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS AND CONDITIONS.
(C) ALTHOUGH ALL INFORMATION AND MATERIALS CARRIED ON THE WEB SITE IS BELIEVED TO BE RELIABLE, WE MAKE NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE WEB SITE.
(D) IN NO EVENT SHALL WE OR OUR AFFILIATES NOR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PROFESSIONAL LIABILITY DAMAGES, MALPRACTICE LOSSES AND DAMAGES, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE WEB SITE.
(E) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY UTILIZING THE WEB SITE YOU ACKNOWLEDGE AND AGREE TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE WEB SITE.
(F) OUR LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF OUR AFFILIATES AND ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED U.S. DOLLARS AND NO/CENTS ($100.00,) WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates, directors, officers, members, employees, contractors, parents, subsidiaries, agents, third-party content providers, licensors, and any purchasing person or entity in the event that we are sold, in whole or in part, and/or restructured.
5.2. INDEMNIFICATION.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS, AS WELL AS OUR AFFILIATES NOR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PAENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE WEB SITE; (B) YOUR NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) YOUR USE OF THIRD-PARTY SERVICES, PRODUCTS, LINKS, ADVERTISEMENTS, AND/OR TOOLS; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; OR (E) THE UNAUTHORIZED USE OF THE WEB SITE BY ANY OTHER PERSON USING YOUR INFORMATION.
SECTION VI: GOVERNING LAW; ARBITRATION
6.1. Governing Law.
These Terms shall be governed and construed in accordance with the laws of the state of New York without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in Queens County, New York, and any cause of action that relates to or arises from these Terms, the Web site, or Services must be filed therein unless subject to the binding arbitration provisions of Section 6.2, infra.
4.2. Arbitration.
The parties agree that any dispute concerning, relating, or referring to these Terms, the Web site, or Services shall be resolved exclusively by binding arbitration in accordance with the substantive laws of the state of New York and shall be brought for arbitration in Queens County, New York, pursuant to the American Arbitration Rules. The arbitrator and not any federal, provincial, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is void or voidable. Nothing herein prevents either party from seeking any interim injunction it deems necessary in order to preserve the status quo prior to the resolution of any dispute, in any jurisdiction.
SECTION VII: MISCELLANEOUS
7.1. Affiliate Disclosure.
We may have an affiliate relationship with Third-Parties and affiliates to whose products we link and promote through the Web site. Because of this relationship we may earn a commission on products purchased by a User from a Third-Party affiliate.
7.2. Different and Conflicting Terms.
We reserve the right, but assume no obligation, to agree to different or conflicting terms and conditions with respect to any User. Any such terms and conditions will not be enforceable unless specifically agreed to by us.
7.3. Authority.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
7.4. Waiver.
Any waiver of a right under these Terms and Conditions shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
7.5. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of Acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible,both without undue delay.
7.6. Assignment.
We shall have the right to assign and/or transfer these Terms and Conditions and our rights and obligations hereunder to any Third Party after notifying you as provided for herein. You agree and acknowledge that you shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms and Conditions without our prior written consent in our sole and exclusive discretion.
7.7. Rights of Third Parties.
These Terms do not give any right to any Third Party unless explicitly stated herein.
7.8. Relationship of the Parties.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
7.9. Severability.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
7.10. Additional Services, Contests.
We reserve the right, in our sole discretion and from time to time, to offer contests, programs, products or services with unique terms and conditions that are separate from and may supersede or supplement in certain respects these Terms. In such cases, your use of the Site with respect to such special program is governed by these Terms together with the terms and conditions of such contest, program, product or service.
7.11. Notices.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Open Home Care, Inc., a New York limited liability company with a principal place of business located at 112 W34th Street, Floor 17th, New York, NY, 10120, and, in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after such email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon registration of an account. In such case, notice shall be deemed given three days after the date of mailing.
7.12. Updates & Effective Date.
The effective date of these Terms is 07/01/2024. From time to time, we may update these Terms and Conditions by prominently posting a notice of update to the Web site and contacting you at the email you provided upon registration, if applicable, so we encourage you to review them often.
SERVICE PROVIDER LISTING TERMS OF SERVICE
IM Care Consulting, LLC.
The following Service Provider Listing Terms of Service are provided by of IM Care Consulting, LLC., a New York limited liability company, to the home health care services providers who wish to be listed on HomeCareNear.com Web site subject to the terms and conditions contained herein.
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
1.1. Definitions.
References to “Dispute” mean any claim, conflict, controversy, disagreement between the parties arising out of, or related in any way to, these Terms (or any terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any terms contemplated by the Terms.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching party would wish to immediately terminate these Terms because of that breach.
References to a “Provider” shall mean any and all home health care services providers who register to be listed in the directory we provide as part of our Services.
References to the "Services" shall mean any and all services offered by us via the Web site, including but not limited to providing Users with a database of home health care services providers.
References to the “Terms” and/or “Agreement,” mean this, these Service Provider Listing Terms of Service as set forth herein.
References to “us,” “we,” “our,” and/or “Open Home Care” mean Open Home Care, Inc.
References to the “Web site” mean the Web site bearing the URL www.HomeCareNear.com as well as any other site or social media outlet operated by us.
References to “you,” and/or “User” mean the User of the Web site as a Provider.
1.2. Agreement to be Bound.
The following Terms, together with the relevant information set out on the Web site, including any features and services available, such as RSS feeds, podcasts, video and photographs, publications, guides, and other materials are subject to the terms and conditions set forth below. Please read them carefully as any of use of the Web site as a registered Provider constitutes an agreement, to be bound thereby by the User. By using the Web site, you represent that you are at least eighteen (18) years old, have read and understand the Terms, and that you agree to be bound by these Terms as set forth below. These Terms are subject to the Privacy Policy, which also governs your use of the Web site and the Services as well as our General Web site Terms and Conditions.
SECTION II: LISTING & PAYMENT
2.1. No Endorsement.
HomeCareNear acts as a listing service or directory to allow Providers who comply with our policies and procedures to promote themselves via our Services. As an online information provider, we do not endorse or promote any Provider, and we have no control over the quality, expertise, or licensing status of any Provider listed, the truth or accuracy of the listings, the ability of any Provider listed to provide services, or the identity of any Provider except where a Provider has participated in our voluntary third-party background check procedures. Providers shall not represent any acceptance by us of a listing as an endorsement of such Provider’s services, competency, or expertise.
2.2. Provider Obligations, Generally.
In exchange for our listing Services, Provider agrees to pay to us a “Listing or Advertising Fee” for the provider level selected by Provider upon registration, and as detailed on our Web site, and subject to change in our sole and exclusive discretion upon thirty (30) days’ written notice. Said Fees shall be due and owing every month until cancelled by Provider as set forth herein.
To the extent a Provider elects to participate in a third-party background check verification, drug screening, or other third-party Service offered via the Web site, Service Provider agrees to remit payment to HomeCareNear in the amount reflected for the same at the point of sale, payable at the time of purchase.
2.3. Unauthorized Business.
In addition to the prohibited uses set forth in these Terms, our Services and/or the Web site may not be used by an Provider to cause us to advertise on his, her, or its behalf employment in any of the following service areas, (“Unauthorized Business:”) (a) sale of adult goods or services; (b) sale of products or services in the following sectors:gambling, securities, drugs, arms and weapons or other highly-regulated sectors; or (c) for sales of illegal goods or services, which shall include but not be limited to illegal software or illegal downloads such as music, films or games.
2.4. Accuracy of Listing.
Provider shall be solely responsible for ensuring any and all listings are complete and accurate at all times, including but not limited to the Provider’s name, location, Web site, contact information, immunization records, background check verifications, and description of services provided by Provider. Some of the forgoing listing information may be available to our premium Provider subscribers only. Provider agrees and acknowledges that we undertake no responsibility and shall have no liability for verifying or failing to verify any information provided to us from Provider when creating a listing.
2.5. Listing Fee; Automatic Billing.
The Listing Fee for participation in the Services shall be due and owing every month in a pre-paid amount corresponding to the Provider plan selected by Provider upon registration and as set forth at all times on the Web site, including at the point of sale. The first such Listing Fee shall become due and owing as of the date of Provider’s registration for the Services and shall continue to be billed automatically every month thereafter to the credit/debit card provided upon activation of Provider’s participation in the Services and as may be amended by Provider from time to time until Provider’s cancellation of its participation in the Services.
2.6. Upgrades and Downgrades.
You may elect to opt for a lower priced plan (“downgrade”) or a higher-priced plan (“upgrade”) at any time. In addition to the further payment terms contained herein, should you upgrade your plan, you shall pay the difference between the amount you paid and the then-current plan price for the upgraded plan for the remainder of the monthly service period. Should you elect to downgrade your plan you shall not be entitled to a full or partial refund for any reason whatsoever.
2.7. Denied Payment.
Should a Provider fail to make arrears for any denied payment of the Listing Fee plus all fees within five (5) days following any notice from us of the same we shall have, in our sole and exclusive discretion, the right to suspend or otherwise terminate the provision of our Services to Provider until all outstanding amounts due and owing have been received. We shall strictly not be liable for any stop in interruption or termination of a Provider’s listing in the event of non-payment.
2.8. Refunds and Returns.
Due to the nature of the Services rendered, no refunds or returns shall be granted at any time, including but not limited to erroneous listing information, lack of increased profits or clients as a result of listing, business closure, or cancellation prior to the end of the then-current payment period.
2.9. Compliance with Law.
In addition to the other requirements to comply with laws, regulations, and terms set forth herein, Providers agree to obey any and all local, state, federal and international rules, regulations and laws regarding client solicitation and the practice of law.
2.10. Termination.
You may terminate your use of the Services at any time upon thirty (30) calendar days’ written notice in advance of the date next reoccurring, automatic payment of the Listing Fee to be charged pursuant to Section 2.5. Termination notices received fewer than thirty (30) calendar days in advance of the date next reoccurring, automatic payment of the Listing Fee to be charged shall take effect the following Service period, and Provider shall continue to be obligated to pay the pending Listing Fee. In no event shall a refund be due or owing should Provider elect to terminate use of the Services prior to the end of the current Service period.
SECTION III: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
3.1. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
(A) TO THE EXTENT ALLOWED UNDER LAW, OPEN HOME CARE, OUR AFFILIATES AND ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS (1) DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS (E.G. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NONINFRINGEMENT); (2) DO NOT GUARANTEE THAT THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS, AND (3) PROVIDE THE SERVICES (INCLUDING CONTENT AND INFORMATION) ON AN “AS IS” AND “AS AVAILABLE” BASIS. NO PROMISES OR WARRANTIES ARE MADE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(B) IN NO EVENT SHALL WE OR OUR AFFILIATES NOR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PROFESSIONAL LIABILITY DAMAGES, MALPRACTICE LOSSES AND DAMAGES, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES.
(C) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY UTILIZING THE WEB SITE YOU ACKNOWLEDGE AND AGREE TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE WEB SITE.
(D) OUR LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF OUR AFFILIATES AND ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED U.S. DOLLARS AND NO/CENTS ($100.00,) WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates, directors, officers, members, employees, contractors, parents, subsidiaries, agents, third-party content providers, licensors, and any purchasing person or entity in the event that we are sold, in whole or in part, and/or restructured.
3.2. INDEMNIFICATION.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS, AS WELL AS OUR AFFILIATES OR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT PROVIDERS AND LICENSORS FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE WEB SITE AND/OR THE SERVICES; (B) YOUR NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; OR (D) THE UNAUTHORIZED USE OF THE WEB SITE BY ANY OTHER PERSON USING YOUR INFORMATION.
SECTION IV: GOVERNING LAW; ARBITRATION
4.1. Governing Law.
These Terms shall be governed and construed in accordance with the laws of the state of New York without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in Queens County, New York, and any cause of action that relates to or arises from these Terms, the Web site, or Services must be filed therein unless subject to the binding arbitration provisions of Section 4.2, infra.
4.2. Arbitration.
The parties agree that any dispute concerning, relating, or referring to these Terms, the Web site, or Services shall be resolved exclusively by binding arbitration in accordance with the substantive laws of the state of New York and shall be brought for arbitration in Queens County, New York, pursuant to the American Arbitration Rules. The arbitrator and not any federal, provincial, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is void or voidable. Nothing herein prevents either party from seeking any interim injunction it deems necessary in order to preserve the status quo prior to the resolution of any dispute, in any jurisdiction.
SECTION V: MISCELLANEOUS
5.1. Different and Conflicting Terms.
We reserve the right, but assume no obligation, to agree to different or conflicting terms and conditions with respect to any User. Any such terms and conditions will not be enforceable unless specifically agreed to by us. To the extent these Service Provider Listing Terms of Service conflict with the General Web Site Terms, these Service Provider Listing Terms of Service shall control.
5.2. Authority.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its Terms.
5.3. Waiver.
Any waiver of a right under these Terms shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
5.4. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of Acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
5.5. Assignment.
We shall have the right to assign and/or transfer these Terms and our rights and obligations hereunder to any third party after notifying you as provided for herein. You agree and acknowledge that you shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms without our prior written consent in our sole and exclusive discretion.
5.6. Rights of Third parties.
These Terms do not give any right to any third party unless explicitly stated herein.
5.7. Relationship of the parties.
The parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into Terms of any kind in the name of the other party.
5.8. Severability.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
5.9. Notices.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Open Home Care, Inc., a New York limited liability company with a principal place of business located at 112 W34th Street, Floor 17th, New York, NY, 10120, and, in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after such email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon registration of an account. In such case, notice shall be deemed given three days after the date of mailing.
5.10. Updates & Effective Date.
The effective date of these Terms is 06/17/2024. From time to time, we may update these Service Provider Listing Terms of Service upon thirty (30) days’ written notice by contacting you at the email you provided upon registration, if applicable, so we encourage you to review them often.
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