INTELYCARE TERMS OF SERVICE
May 1, 2018
These Terms of Service (the “Terms”) govern the access or use of certain mobile software applications (the “Applications”), online platforms and websites (the “Sites”) and related content (collectively, the “Service”) made available to Users by IntelyCare, Inc. (“IntelyCare”) and its subsidiaries, affiliates and licensors solely for use in the United States. The term “Users” refers to all persons who access or use the Service, whether through the Applications or the Sites, including but not limited to IntelyPros, the Facilities and the Facilities’ authorized users. The term “IntelyPros” refers to those registered nurses, licensed practical nurses and certified nursing assistants who are employed by IntelyCare pursuant to the terms of their Offer Letter (as defined below) to render certain healthcare-related professional services (the “Professional Services”) on behalf of one or more Facilities. The term “Facilities” refers to those hospitals, rehabilitation centers, nursing homes and/or health care facilities that have registered with IntelyCare pursuant to its standard form of Supplemental Staffing Services Agreement (as defined below) to engage one or more IntelyPros on an as-needed basis to render Professional Services on behalf of such Facilities.
These Terms govern the Users’ permitted and prohibited access to and uses of the Service and the respective rights of IntelyCare and the Users with respect to such Service.
By accessing the Applications and/or by visiting the Sites, each User agrees to these Terms. If a User does not agree to these Terms, he or she may not access or use the Service. Except with respect to Section 12.4 (Mandatory Arbitration), IntelyCare reserves the right to modify these Terms from time to time without notice to Users by posting the revised Terms on the Site and/or Applications. By accessing or using the Site or the Applications following any modifications to these Terms, a User agrees to be bound by such modifications.
- Use of the Service by Minors. Use of the Service is expressly limited to residents of the United States at least 18 years of age. By using the Service or by accessing or transmitting content or information through the Sites or Applications, the User represents to IntelyCare that he or she is a resident of the United States at least 18 years of age.
- Limited Licenses. The Sites and/or the Applications, including all content, information, data, text, music, sound, photographs, graphics, video, messages, features and/or other materials therein (collectively, the “Content”), are the property of IntelyCare and its licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, Users may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Content from the Sites and/or Applications, in whole or in part, for any public or commercial purpose without the specific written permission of IntelyCare. Subject at all times to the applicable User’s compliance with these Terms, IntelyCare hereby grants the User a personal, non-exclusive, non-transferable limited right and license to use the Service. Each User hereby grants to IntelyCare a perpetual, non-exclusive, royalty-free, worldwide right and license to use, post, copy or reproduce any User content prepared and submitted by or on behalf of a Facility that a User may post to the Sites or Applications for any purpose.
- Modifications to the Service. IntelyCare reserves the right, at its sole discretion and without notice to Users, to terminate, change, suspend or discontinue any aspect of the Service, including, but not limited to any Content, and IntelyCare will not be liable to any User or to any third party for doing so. IntelyCare reserves the right to impose rules for and limits on the use of the Service or restrict Users’ access to part, or all, of the Service without notice or penalty.
- International Use. IntelyCare controls and operates the Service from its offices in the United States, and all information is processed within the United States. IntelyCare does not represent that the Service is appropriate or available for use in other locations. Users who choose to access the Service from other locations outside the United States do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Without limiting the generality of the foregoing, each User agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which such User resides.
- Proprietary Rights. Unless otherwise specified in writing, all materials that are part of, or otherwise made available in connection with the Service, are owned, controlled, or licensed by IntelyCare and its licensors and are protected by law from unauthorized use. The contents of the Service, inclusive of the Sites and Applications, are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. IntelyCare, and any IntelyCare logos, are trademarks of IntelyCare and may not be used without the express written permission of IntelyCare. Users do not acquire any ownership rights by using the Service, or downloading material from or uploading material to the Service. Each User agrees not to copy, redistribute, publish or otherwise exploit material from the Service, except as expressly permitted herein, without the express prior written permission of IntelyCare. Each User agrees to include, and to not remove or alter, IntelyCare’s trademark, copyright or other proprietary rights notices, as provided by IntelyCare on or in connection with the Service, when using or sharing content, or otherwise using the Service, and each User agrees to comply with usage guidelines that may be provided by IntelyCare from time to time. Each User agrees that all goodwill that arises in connection with his or her expressly authorized use of IntelyCare’s trademarks inures exclusively to IntelyCare, and each User agrees not to challenge IntelyCare’s ownership or control of any such trademarks, nor use or adopt any trademarks that might be confusingly similar to such IntelyCare trademarks.
- Links from and to the Site. Users may be able to link to third party websites (“Linked Sites”) from the Sites or the Applications. Linked Sites are not, however, reviewed, controlled or examined by IntelyCare in any way and IntelyCare is not responsible for the content, availability, advertising, products, information or use of User information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply IntelyCare’s endorsement of, or association with the Linked Sites. It is each User’s sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall IntelyCare be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. Each User should direct any concerns to that site’s administrator or Webmaster. IntelyCare reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Sites or Applications, and/or introduce different features or links to different Users.
- Passwords. IntelyCare has several tools that allow each User to record and store information in his or her account. Each User is responsible for all actions on the Service by him or her or under his or her password or account and for taking all reasonable steps to ensure that no unauthorized person shall have access to such User’s password or account. Without limiting the foregoing, it is each User’s sole responsibility to: (a) control the dissemination and use of any login code and password; (b) authorize, monitor, and control access to and use of his or her account and password; and (c) promptly inform IntelyCare of any need to deactivate a password. Each User hereby grants IntelyCare and all other persons or entities involved in the operation of the Service the right to transmit, monitor, retrieve, store, and use any information recorded and/or stored in his or her account in connection with the operation of the Service.
- DISCLAIMERS; LIMITATIONS; WAIVERS OF LIABILITY.
- EACH USER EXPRESSLY AGREES THAT HIS OR HER USE OF THE SERVICE IS AT THE USER’S SOLE RISK AND 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 NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER THE LAWS APPLICABLE TO THESE TERMS WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY (30) DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER INTELYCARE NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, THE “INTELYCARE PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, UNCORRUPTED, TIMELY, OR ERROR-FREE.
- THE INTELYCARE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT, OR TIMELY.
- THE INTELYCARE PARTIES DO NOT ENDORSE OR WARRANTY ANY FACILITY OR INSTITUTION OR PROVIDER OR OTHER INFORMATION THAT MAY BE REFERENCED ON OR THROUGH THE SITES OR APPLICATIONS. THE SERVICE, INCLUSIVE OF THE SITES AND APPLICATIONS, MADE AVAILABLE TO A USER HEREUNDER ARE DESIGNED FOR INFORMATIONAL PURPOSES ONLY.
- THE INTELYCARE PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY, WRONGFUL DEATH, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT THE INTELYCARE PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT THE INTELYCARE PARTIES ARE LIABLE, THE USER AGREES THAT THE CAP ON SUCH LIABILITY, AND THE MOST THE INTELYCARE PARTIES WOULD BE LIABLE TO THE USER FOR, IS THE AMOUNT SUCH USER HAS PAID INTELYCARE IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH USER FIRST ASSERTS ANY SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, UNDER NO CIRCUMSTANCES WILL THE INTELYCARE PARTIES BE LIABLE TO ANY USER FOR MORE THAN THE AMOUNT SUCH USER HAS PAID INTELYCARE IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH USER FIRST ASSERTED ANY SUCH CLAIM.
- TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
- Indemnification. Each User agrees to defend, indemnify and hold harmless the IntelyCare Parties from and against all liability, claims, actions and expenses, including attorneys’ fees and costs, arising out of such User’s use of the Service and/or such User’s breach or alleged breach of any term, condition, obligation, representation or warranty set forth in these Terms. Each User agrees that the provisions in this paragraph will survive any termination of the Service or these Terms.
- Governing Law/Waiver of Injunctive Relief.
- These Terms and all aspects of the Service will be governed by and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (i.e., without regard to conflict of law provisions) regardless of the User’s location. With respect to any Disputes (as defined below) not subject to informal dispute resolution or mandatory arbitration in accordance with Section 12.4 below, each User agrees not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and each User hereby consents to, and waives all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
- Each User acknowledges that the rights granted and obligations made hereunder to IntelyCare are of a unique and irreplaceable nature, the loss of which will irreparably harm IntelyCare and which cannot be replaced by monetary damages alone so that IntelyCare will be entitled to seek injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by a User. Each User irrevocably waives all rights to seek injunctive or other equitable relief and agrees to limit such User’s claims to claims for monetary damages (if any).
- To expedite resolution and control the cost of any dispute, controversy or claim related to the Service or these Terms (each, a “Dispute”), each User and IntelyCare agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. A User will send his or her notice to IntelyCare via certified mail at the following address: IntelyCare, Inc., Attn: Legal Affairs, 1515 Hancock Street, Quincy, Massachusetts 02169.
- Mandatory Arbitration. If any User and IntelyCare are unable to resolve a Dispute through informal negotiations within thirty (30) days, either the User or IntelyCare may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. EACH USER UNDERSTANDS THAT ABSENT THIS PROVISION, SUCH USER WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Each User’s arbitration fees and his or her share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
- Notwithstanding the above, User and IntelyCare each agree that arbitration will be limited to the Dispute between IntelyCare and the User individually. To the full extent permitted by law: (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
- Each User and IntelyCare agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of a User’s or of IntelyCare’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- The failure of IntelyCare to require or enforce strict performance by a User of any provision of these Terms or to exercise any right under any provision of these Terms will not be construed as a waiver or relinquishment of IntelyCare’s right to assert or rely upon any such provision or right in that or any other instance.
- User and IntelyCare each agree that if any portion of these Terms, except any portion of Section 12.4 (Mandatory Arbitration), is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which will continue to be in full force and effect. If Section 12.4 (Mandatory Arbitration) is found to be illegal or unenforceable then neither a User nor IntelyCare will elect to arbitrate any Dispute falling within that portion of Section 12.4 (Mandatory Arbitration) found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction located in Boston, Massachusetts, and the User and IntelyCare agree to submit to the personal jurisdiction of that court.
- Network Access and Devices. Users are responsible for obtaining the data network access necessary to use or access the Service. Users’ mobile network’s data and messaging rates and fees may apply if the Service is accessed or used from a wireless-enabled device. Users are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Service, inclusive of the Sites and Applications and any updates thereto. IntelyCare does not guarantee that the Service, inclusive of the Sites and Applications or any portions thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
- SMS Messages. Each User hereby agrees that the Service may send such User informational text (SMS) messages as part of the normal business operation of such User’s use of or participation in the Service. A User may opt-out of receiving text (SMS) messages from IntelyCare at any time by texting the word STOP from the mobile device receiving the messages to the number from which messages were sent; provided, however, that the User hereby acknowledges that opting out of receiving text (SMS) messages may or will result in a termination of his or her use of or access to the Service.
- Terms Applicable to IntelyPros Users. The following terms are applicable to all IntelyPro Users of the Service.
18.1 IntelyPros who wish to become eligible to accept one or more requests posted by or on behalf of a participating Facility requesting Professional Services shall have successfully completed the IntelyCare employment application process, which includes having authorized and undergone a background check, executed a separate employment offer letter or employment agreement with IntelyCare (an “Offer Letter”) and received the requisite access credentials from IntelyCare to accept requests for Professional Services that may be posted to the Site or Application by or on behalf of a Facility. Upon termination of an IntelyPro’s Offer Letter or employment with IntelyCare, such IntelyPro’s user account and access credentials shall be immediately suspended or revoked and such User shall no longer be eligible to accept requests for Professional Services that may be posted to the Site or Application by or on behalf of a participating Facility.
18.2 In the event of a conflict or inconsistency between these Terms and the Offer Letter, the Offer Letter shall control.
- Terms Applicable to Facility Users. The following terms are applicable to all Facility Users of the Service.
19.1 Facilities who wish to request Professional Services from IntelyPros through the Service shall have entered into a separate agreement with IntelyCare (the “Supplemental Staffing Services Agreement”) and registered an account with IntelyCare through the Sites or the Applications. Upon termination of the Supplemental Staffing Services Agreement, such Facility’s user account and access credentials shall be immediately suspended or revoked and such Users shall no longer be eligible to post or otherwise submit requests for Professional Services to the Site or Application.
19.2 In the event of a conflict or inconsistency between these Terms and the applicable Supplemental Staffing Services Agreement, the Supplemental Staffing Services Agreement will control.
19.3 Facilities shall only post true information pertaining to their requests for Professional Services and shall use commercially reasonable efforts to timely remove from the Service any such postings or requests that are no longer available.