USER AGREEMENT

USER AGREEMENT

            This User Agreement (“Agreement”) is entered into by and between Minty Care Connections LLC, a New York limited liability company having a place of business at 1726 Long Pond Road, Suite 5, Rochester, New York 14606 (the “Company”), and the individual or entity identified in the Company’s platform registration records that electronically accepts this Agreement (the “Enrolling User”). This Agreement becomes effective on the date of that electronic acceptance (the “Effective Date”).

            WHEREAS, the Company provides a platform available at  www.mintycareconnections.com  and any other websites, web pages, mobile applications and mobile websites operated by Company (“Site”);

WHEREAS, the Site is an online web-based two-sided marketplace which enables connections between (i) Users and (ii) Providers. “Users” are individuals seeking care services (such as housekeeping services, meal preparation, lawn care, errands, friendly visits and transportation to medical appointments) (“Services”) who post jobs to the Site, and search for, narrow, find and communicate with individuals and entities who provide the Services (“Providers”). Providers post profiles on the Site and browse, search, and apply to jobs; and

            WHEREAS, the Enrolling User wishes to enroll on the Site as an User to post a profile to the Site, create posts seeking care services and connect with Providers to fill those jobs.

            NOW, THEREFORE, it is agreed as follows:

1. Scope.

1. Enrolling User is an individual who wishes to use the Site to find care services for himself/herself, or Enrolling User’s family members, from Providers who are registered on the Site. The Site and the Company are not an employment agency service or business. Providers are not and will not be employees, partners, representatives, agents, joint venturers, independent contractors or franchisees of Company. Any Provider hired to provide Services for the Enrolling User is or will be an independent contractor of Enrolling User, and Enrolling User is or will therefore be a client of Provider, not Company.

• In exchange for access to the Site, Company shall be entitled to a finder’s fee from the Enrolling User in the amount of fifteen percent (15%) of the total paid for any Services Enrolling User contracts through the Site.

• Enrolling User is solely responsible for interviewing, vetting, performing background and reference checks on, verifying information provided by, and selecting an appropriate Provider to provide Services for himself/herself or his/her family. Each Enrolling User is responsible for complying with all applicable laws in connection with any independent contractor relationship he/she establishes with an Provider, including verifying the age of the selected Provider as well as the Provider’s eligibility to work in the US. 

• Enrolling User and the Provider who accepts and agrees to provide the Services sought by the Enrolling User shall form a legally binding contract between them (the “Service Agreement”). The terms of this Service Agreement include the details of the Service proposed by the Enrolling User and accepted by the Provider, and any other terms agreed to by and between the Enrolling User and Provider. Enrolling User is responsible for exercising his/her own business judgment when entering into a Service Agreement and acknowledges that he/she does so at his/her own risk. Company is not a party to any Service Agreement. The formation of a Service Agreement will not, under any circumstances, create any responsibility or liability for Company.

• Relationship of the Parties.

Enrolling User acknowledges and agrees that (a) Company does not (i) perform the Services nor employ individuals and will not employ any Provider to perform Services, (ii) supervise, scope, direct, control, or monitor any Provider’s work (including that Company does not set Provider’s work locations, work hours, or terms of work), nor provide tools or supplies to an Provider, (iii) arrange any transportation if the Enrolling User seeks transportation services from an Provider, or (iv) have any control over the timing, quality, means used, manner of provision, environment, legality, failure to provide, or any other aspect whatsoever of Services or an Provider (or the acts or omissions thereof), nor of the integrity, competence, responsibility, qualifications, communications, or the ratings or reviews provided by an Provider with respect to themselves; and (b) the formation of a Service Agreement will not, under any circumstances, create any responsibility or liability for Company, nor any employment or other relationship between Company and Enrolling User. Enrolling User does not have authority to, and may not act as an agent for, nor bind or make any representations on behalf of, Company.

Enrolling User further acknowledges and agrees that Company is neither responsible nor liable for workers’ compensation or any tax payment or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, disability insurance, employer’s liability, employer training tax, social security contributions or other applicable payroll withholdings in connection with use of the Site or provision of Services. Enrolling User assumes full and sole responsibility for all required and applicable taxes Enrolling User must pay in connection with obtaining the Services.

• Payment.

In order to book Services on the Site (and thereby become a “Member”), Enrolling User must set up an account with Stripe, a third-party payment service provider (“PSP”), which may require registration with the PSP, consent to the terms of service of the PSP (the “PSP Services Agreement”), and completion of a vetting process and/or account validation. Company is not a party to any PSP Services Agreement, and has no obligations, responsibility or liability to Enrolling User or other party under any PSP Services Agreement.

Enrolling User authorizes Company, or the PSP, to process payment for Services via the existing payment method. All amounts owed to an Provider must be paid through the PSP. Enrolling User acknowledges and agrees that Company may prevent Enrolling User from booking future Services, if any amounts remain outstanding on Enrolling User’s account.

Except as set forth in these Terms or as described on the Site at the time you make a purchase, Services and the accompanying finder’s fee are non-refundable, and there are no refunds or credits, even if you close your account. 

Moreover, you understand and agree that if the Company terminates your account based on our determination (which we may make in our sole discretion), that you (i) are not eligible to use the Site, (ii) have violated any terms stated herein, (iii) are not suitable for participation as a registered user, (iv) have misrepresented yourself or your identity, or (v) have misused or misappropriated Site content, including but not limited to use on a “mirrored,” competitive, or third-party site, you will not be entitled to a refund of all or any unused portion of your purchase.

• Taxes.

1. Enrolling User may be responsible for state or federal tax reporting for the Services obtained under any Services Agreement and remains fully responsible and liable for, and in charge of, compliance with all tax obligations applicable to them and the Services.

• Company is neither responsible nor liable for ensuring Enrolling User’s compliance with applicable tax obligations. Company may (i) request the Enrolling User to confirm and/or demonstrate that they are up to date with their tax reporting obligations; and (ii) deactivate a Enrolling User’s account or limit their use of or remove the Enrolling User from the Site upon (1) a determination from the applicable tax authorities that such Enrolling User has failed to comply with tax reporting obligations, or (2) if the Enrolling User is unable or unwilling to confirm and/or demonstrate their compliance with their tax reporting obligations, upon request. 

• Representations and Warranties.

1. Enrolling User represents and warrants that he/she:

1. has the right, authority and capacity to enter into this Agreement and commits to abide by all of the terms and conditions hereof;

1. intends to use the Site and Services solely for the purpose of finding or managing care or care-related jobs, or for finding or sharing information relating to care;

1. will not use the Site for any unlawful, fraudulent, harassing, or obscene purpose;

1. is at least eighteen (18) years of age;

• will comply with all relevant laws, rules and regulations, including in using the Site and in the hiring process;

• will use their legal name (as per Enrolling User’s government issued identification and registration documents) and an up-to-date photo on Enrolling User’s profile;

• assume full responsibility for interviewing, performing reference checks on, verifying information provided by, and selecting an appropriate Provider for himself/herself or his/her family;

• will not post jobs to Site seeking any medical, diagnostic, treatment or clinical service;

1. will only initiate booking requests to Providers with whom Enrolling User actually intends to perform services for him/her, subject to any screening, vetting, verifications or background checks Enrolling User may wish to perform;

• will provide all applicable tax reporting forms for all Providers hired through the Site;

• will only utilize the third-party payment service provider to provide payment for Services;

• will not post on the Site, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, defamatory, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity), or advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse, or give the impression that any content emanates from Company where this is not the case; and

• will not provide inaccurate, misleading, defamatory or false information to Company or to any other user of the Site, and all opinions stated as part of content posted by Enrolling User must be genuinely held. Without limiting the foregoing, Enrolling User represents and warrants that he/she has the right and authority to post all information posted about himself/herself or others.

• Enrolling User acknowledges that Company makes no warranties regarding the availability of any Providers to fill jobs with Enrolling User or that any Provider will enter into a Service Agreement with Enrolling User, and assumes no liability for any representations made by any Providers.

• Background Checks.

1. Company offers to individuals who have registered as Providers and Users one or more background check services from third-party consumer reporting agencies (“Background Checks”). These Background Checks may include, among other things, criminal history information checks, motor vehicle record checks, social media and online presence checks. Certain Background Checks may be made available for purchase by both Users and Providers, while others may only be made only be available for purchase by Users or Providers. All Background Checks require payment of a separate fee by the Site user who is initiating the Background Check request and are subject to the consent of the Provider on whom the check is being performed. 

Each of these Background Checks is regulated by the Fair Credit Reporting Act (“FCRA”) and state laws, and the reports resulting from these services are considered “consumer reports” under FCRA. Consumer reports may contain information on an individual’s character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers’ compensation, driving, employment, military, civil, and educational data and reports. An Enrolling User ordering or requesting access to a Background Check on an Provider is considered an end user of that check and must agree to a required Checkr, Inc. Services Agreement before the check will be processed. This Checkr, Inc. Services Agreement requires the Enrolling User to certify that he/she will comply with the FCRA and any applicable state laws. A summary of  responsibilities in using the information contained the background check can be found at https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. 

Enrolling User acknowledges that Company will not be providing the Background Check services and further agrees that he/she will comply with all laws related to the Background Checks.

• Assumption of Risk.

While Company takes certain steps to help promote the safety of its Site, finding care or care-related jobs via an online platform like Company’s comes with certain inherent risks. The Company does not provide any training, supervision, or monitoring of Users or Providers, and cannot guarantee that all of Enrolling User’s interactions with other Site users or others associated with them will always be 100% safe and respectful.

Enrolling User agrees to assume all risks when using the Site and obtaining Services, including but not limited to injury, illness, death, and all other risks associated with any online or offline interactions with users of the Site. Enrolling User also agrees not to rely solely on steps Company may take to vet or screen Providers or Users and/or their content, or otherwise to promote the safety of the Site.        

• Term and Termination.

1. The term of this Agreement commences as of the Effective Date and will continue until terminated pursuant to Section 10(b) below (the “Term”).

• Termination; Deactivation and Suspension.

1. Enrolling User may terminate this Agreement at any time by ceasing all use of the Site and deactivating their account.

1. Company may terminate this Agreement at any time and cease providing access to the Site, if Enrolling User breaches any part of the Agreement or violates applicable laws.

1. In the event of an actual or suspected breach by Enrolling User of any part of the Agreement (including, without limitation, abuse, fraud or interference with the proper working of the Site), Company may (a) suspend Enrolling User’s right to use the Site pending its investigation; (b) deactivate Enrolling User’s account or limit Enrolling User’s use of the Site upon its confirmation of a breach; and/or (c) remove any Site content generated by Enrolling User that is in breach of the Agreement or applicable law. Company will provide Enrolling User with written notice of its determination in accordance with, and as required by, applicable laws. If Enrolling User wishes to appeal any determination made by Company pursuant to this section, Enrolling User must contact Company within fourteen (14) days of receipt of such notice with the grounds for Enrolling User’s appeal.

• If Company suspends or deactivates Enrolling User’s account or limits Enrolling User’s use of the Site pursuant to this section, Enrolling User may not register and/or create a new account under different usernames, identities or contact details (whether under Enrolling User’s or any other name), even if Enrolling User is acting on behalf of a third party. Even after Enrolling User’s right to use the Site is suspended, terminated or limited, the Agreement will remain enforceable against Enrolling User. Company reserves the right to take appropriate legal action pursuant to the Agreement.

• Enrolling User understands and agrees that, following any termination of any user’s use of the Site, Company has the right, but not the obligation, to send a notice of such termination to other registered Site users with whom Company believes the terminated user has corresponded. Company’s decision to terminate a user’s registration and/or to notify other Site users with whom Company believes the terminated user has corresponded does not constitute and should not be interpreted or used as information bearing on, said terminated user’s character, general reputation or personal characteristics.

1. Upon termination of this Agreement for any reason, any outstanding balance owed by Enrolling User for use of the Site, including for Services or finder’s fees, prior to such termination will become immediately due and payable.

• Limitation of Liability.

THE SITE AND THE TECHNOLOGY UNDERLYING IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE, AND/OR NON-INFRINGEMENT), AND THE SAME ARE EXPRESSLY EXCLUDED.

WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS MEMBERS, MANAGERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “AFFILIATES”, AND TOGETHER WITH COMPANY, THE “COMPANY PARTIES”): (A) MAKE NO, AND EXPRESSLY DISCLAIM (TO THE EXTENT PERMITTED BY LAW), ALL REPRESENTATIONS AND WARRANTIES AS TO, (I) THE TIMELINESS, SUITABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF THE SITE, (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR ANY SERVICE PROVIDED ON, THROUGH OR IN CONNECTION WITH THE USE OF THE SITE, OR (III) THE SERVICES PROVIDED BY, OR THE INTERACTIONS OR COMMUNICATIONS OF OR BETWEEN, USERS OF THE SITE (WHETHER ON- OR OFF-LINE, OR OTHERWISE) (INCLUDING, BUT NOT LIMITED TO, AS TO PROVIDER’S ABILITY, PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSURE); (B) DO NOT WARRANT THAT THE SITE IS OR WILL BE (I) ERROR-FREE OR THAT ACCESS THERETO WILL BE UNINTERRUPTED; OR (II) FREE FROM COMPUTER VIRUSES, SYSTEM FAILURES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS OR MALFUNCTIONS, INCLUDING DURING HYPERLINK TO OR FROM THIRD-PARTY WEBSITES; AND (C) DO NOT WARRANT, ENDORSE, GUARANTEE, RECOMMEND, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE SITE OR ANY HYPERLINKED WEBSITE OR SERVICE, INCLUDING BY ANY PROVIDER, OR ASSISTANT, AND COMPANY WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN SITE USERS AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

THEREFORE, ENROLLING USER ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE RESPONSIBLE OR LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE) FOR, AND SUCH PARTIES EXPRESSLY DISCLAIM, ANY AND ALL LIABILITY, CLAIMS, DEMANDS, DAMAGES (WHETHER DIRECT, ACTUAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA OR GOODWILL, COMPUTER DAMAGE, SERVICE INTERRUPTION, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION AND THE COST OF SUBSTITUTE PRODUCTS OR SERVICES), EXPENSES (INCLUDING ATTORNEYS’ FEES AND COSTS), LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS, AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, DISCLOSED AND UNDISCLOSED, SUSPECTED AND UNSUSPECTED (COLLECTIVELY, “LIABILITIES”) ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH THE SITE OR ENROLLING USER’S OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. TO THE EXTENT PERMITTED BY LAW, ENROLLING USER HEREBY RELEASES THE COMPANY PARTIES FROM THE FOREGOING.

Nothing in the Agreement excludes or limits any liability or warranty that, by applicable law, may not be limited or excluded. Additionally, some jurisdictions do not allow the exclusion of certain warranties or limitation of incidental or consequential damages; in such cases the above limitations may not apply to Enrolling User in their entirety.

IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT THE COMPANY PARTIES ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FINDER’S FEE PAYMENTS PAID BY ENROLLING USER TO THE COMPANY IN THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.

1. Indemnification.

Enrolling User will indemnify and hold the Company harmless, at all times during and after the term of this Agreement, from all claims, damages, liability and expenses, including reasonable legal fees and court costs, arising from or in any way connected with the following:

                        a.         Enrolling User’s material breach of any term or condition contained in this Agreement; or

                        b.         any act or omission on the part of Enrolling User related to or in any way connected with the Services sought through the Site.

Enrolling User shall indemnify, defend, and hold harmless Company and its Affiliates from and against any and all Liabilities incurred in connection with (i) Enrolling User’s use of, inability to use, or participation on, the Site; (ii) Enrolling User’s participation in Services, or Enrolling User’s failure to pay for Services; (iii) Enrolling User’s breach or violation of the Agreement; (iv) Enrolling User’s violation of any law, or the rights of any Site user or third party; and (v) any Site content submitted by or about Enrolling User or using Enrolling User’s account to the Site, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful.

1. Notice.

            Any notice or other communication which may be given, or which is required to be given under the terms of this Agreement shall be in writing and shall be delivered personally, or sent by registered mail, or by certified mail return receipt requested to the post office address of the party as it appears above. Any notice which is mailed shall be deemed to have been given on the third business day after the day of mailing (not counting the day mailed), irrespective of the date of receipt. Notices may be signed and given by the attorney for the party sending the notice.

1. Applicable Law.

            This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its principles of conflicts of law. Jurisdiction of any action or proceeding arising from or in any way connected with this Agreement shall be in New York, with venue in a court of competent jurisdiction in Monroe County.

1. Severability.

            Every provision of this Agreement is intended to be severable. If any provision is held to be invalid or unenforceable by law or by a court of competent jurisdiction, all other provisions shall nevertheless continue in full force and effect. In lieu of such invalid or unenforceable provision, there shall be added to this Agreement a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible.

1. Binding Effect.

            This Agreement shall be binding upon and will inure to the benefit of the parties, their heirs, distributees, legal representatives, transferees, successors and assigns.

1. Construction.

            All understandings and agreements previously made by and between the parties are merged in this Agreement, which alone fully and completely expresses their agreement. This Agreement may not be changed, terminated, nor any of its provisions modified or waived, except in writing signed by all of the parties to this Agreement.

1. Surviving Terms

The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 16, Section 1 (Scope), Section 2 (Relationship of the Parties), Section 3 (Payment), Section 4 (Taxes), Section 5 (Representations and Warranties), Section 7 (Assumption of the Risk), Section 9 (Limitation of Liability), Section 10 (Indemnification), Section 17 (Miscellaneous).

1. Miscellaneous.

            The following provisions shall apply to this Agreement:

a.         The paragraph headings contained in this Agreement have been prepared for convenience of reference only and shall not control, affect the meaning, or be taken as an interpretation of any provision of this Agreement.

b.         Several copies of this Agreement may be executed by the parties, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Photocopies, facsimile or electronic signature copies, including without limitation transmission by .PDF or other fixed image form or any electronic signature complying with U.S. Federal E-Sign Act of 2000 (e.g. www.docusign.com or www.echosign.adobe.com) of signed signature pages will be deemed binding originals and shall be fully binding on the parties to the same extent as original signatures.

c.         In the event any term or condition of this Agreement should be breached by either party and thereafter waived by the other party, then such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach either prior or subsequent to the breach so waived.

d.        If the consent of either party is required for whatever reason under the terms of this Agreement, such consent shall not be unreasonably withheld.

e.         Wherever necessary or appropriate, the masculine gender whenever used shall include the feminine, and the feminine shall include the masculine; the neuter shall include both masculine and feminine; the singular shall include the plural, and the plural shall include the singular.