Last updated: April 2016
1. About The Papa Platform
As a homecare-matching/referral agency, Papa offers its Platform to enable people who need non-medical, in-home personal care (the “Care Services”) to be connected with independent third-party providers of Care Services (“Papa Pals”) through the Platform. The person receiving the Care Services (the “Recipient”) may be you or another person for whom you have the authority to order Care Services, such as a parent or other relative. As a homecare-matching/referral agency, we merely act as an intermediary between you and the Papa Pal and our responsibilities under these Terms are limited to facilitating the availability of the Platform and collecting payments on behalf of the Papa Pal. You and the Papa Pal establish a direct relationship with respect to the Care Services.
Papa checks the background and experience of the Papa Pals via third party background check services and other means; however, you must decide whether a Papa Pal is suited to your needs and whether to work with a particular Papa Pal. The Care Services are provided solely by the Papa Pals, and without limiting any other terms of these Terms, Papa itself does not provide or warrant the Care Services. Papa is not responsible for any personal injury, damage or harm resulting from your scheduling or use of Care Services or your interaction with any Papa Pal. Papa is not the employer of the Papa Pal – See Section 4.
No Professional or Medical Advice
The Care Services and the Platform are not medical service or advice and are not intended to replace or substitute any professional or medical advice. Papa expressly disclaims, and you expressly release Papa from, any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Platform or in connection with the Care Services. You should consult with an appropriately trained professional or medical provider for all concerns that require professional or medical advice.
2. Our Agreement
These Terms constitute an agreement between Papa and you, on behalf of yourself and any Recipient. You represent and warrant that (a) you and the Recipient (if not yourself) are at least 18 years old and the age of legal majority in your jurisdiction; and (b) if the Recipient is someone other than yourself, you have the full power and authority to bind that person to these Terms. In that case that person shall also be bound by these Terms, and every reference in these Terms to “you” and “your” shall also include the Recipient.
Changes to Terms or Platform
Papa may modify these Terms at any time, in its sole discretion. If we do so, we will let you know either by posting the modified Terms on the Platform or through other communications in accordance with Section 9. It is important that you review the Terms whenever we modify them because if you continue to use the Platform after we have made the modified Terms available via the Platform, you are indicating to us that you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not use the Platform anymore. Because our Platform is evolving over time we may change or discontinue all or any part of the Platform, at any time and without notice, at our sole discretion.
3. Scheduling And Payment
On-Demand appointments for Care Services with Papa Pals can be scheduled through the Platform. Your request for Care Services is only accepted when you receive a confirmation of the scheduled appointment from the Papa Pal.
General Payment Terms
Service Fees do not include any reimbursement costs or expenses associated with the Care Services, such as food for the Recipient or costs associated with any outing. Payment or reimbursement arrangements for those expenses must be made between you and the Papa Pal directly.
Cancellation by You
You may cancel any appointment for Care Services on the Platform at any time. You authorize us to charge your credit card for any scheduled Care Service appointments that you do not cancel in accordance with this paragraph, including if the Papa Pal is unable to deliver the services due to the unavailability of or refusal by the Recipient. Certain discounted or promotional rates may be subject to additional restrictions and penalties for cancellation, which will be outlined in connection with the discount or promotion.
Cancellation or Substitution by Papa Pal
If a Papa Pal is unable to make any previously accepted appointment and Papa receives sufficient advance notification, Papa will make the appointment available to another Papa Pal through the Platform. Papa cannot guarantee that a replacement will accept the appointment in sufficient time, and if no replacement is available, you will not be charged for the appointment.
Discounts and Promotion
From time to time, you may be offered discounted or promotional rates (in an amount subject to Papa’s sole discretion), which will be subject to any additional terms outlined in connection with such discount or promotion.
No refunds or credits will be provided once your credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made, or as provided under “Discounts.”
If we determine that you have used the Platform under false pretenses, by providing false information, or for purposes other than a bona fide intention to receive Care Services from a Papa Pal, we may charge your card on file a fee equal to $100, representing damages suffered by us from the fraudulent usage. If we determine that our damages exceed $100, we may bring an action against you.
4. Papa Pals and Care Services
Under the terms of this agreement you may not engage with any Papa Pal directly if they are available on our platform. In the event that you do and not notify us, you may be liable to us for fees related to services rendered outside of the Platform.
Nature of Relationship
Papa is not the direct employer of the Papa Pal (Independent Contractor) it matched/referred you to. The Papa Pal is an independent contractor utilizing the Papa Platform in order to make his/her services available to you.
If you have elected to have the Papa Pal provide transportation in the Recipient’s car, you will be responsible for all necessary insurance to cover any accidents or liability that may occur. If you have elected to be transported in the Papa Pal’s car, you understand that the Recipient will ride in the Papa Pal’s personal car as a passenger of the Papa Pal. Papa expressly disclaims, and you hereby expressly release Papa, from any responsibility or liability for any damages resulting from your use of transportation services from a Papa Pal.
Papa does not designate any portion of your payment as a tip or gratuity to the Papa Pal. While you are free to provide additional payment as a gratuity to any Papa Pal, you are under no obligation to do so. You are responsible for determining whether any gratuity is reportable to any taxing authority and for making such report or paying any applicable taxes.
Whenever you or the Recipient is asked to provide ratings of the Papa Pal, you agree that all ratings will represent the independent, honest and genuine opinion of the person providing the rating.
The Care Services do not include medical care of any kind, including emergency care, and no part of the Service Fees constitute compensation for any medical or emergency care. If an emergency occurs while a Papa Pal is with a Recipient, neither the Papa Pal nor Papa shall be liable for any damages resulting from any act or omission of the Papa Pal. Whether a Papa Pal renders emergency care is at the discretion of the Papa Pal. Papa Pals and, if applicable, Papa, shall be entitled to the full benefit of any “Good Samaritan” laws.
You are responsible for providing a safe and secure working environment for the Papa Pal, and for obtaining all necessary insurance to protect against harm to the Papa Pal. If a Papa Pal detects violence or abuse affecting the Recipient, the Papa Pal may be required by law to report that abuse to law enforcement.
5. Your Use Of The Platform
If you want to use the Platform, you will have to create an account. You are responsible for all activity that occurs under your account, whether or not you know about it, and you agree to maintain the security and secrecy of your account username and password at all times. Please notify us immediately of any unauthorized use of your account. If you communicate with us over the phone or in person, such as by ordering or changing services, providing information, or rating a Papa Pal, you authorize us to update your account on your behalf to reflect such communications.
Information You Provide Us
When you create an Papa account, you submit personal information about you and the Recipient, such as your name, address, mobile phone number and age, as well as information about the Recipient that may be relevant to the Care Services, such as physical or mental condition, preferences, diet, etc. You agree to provide accurate, complete and up-to-date information, and your failure to do so may result in adverse consequences, including the inability of the Papa Pal to provide the Care Services, your inability to access and use the Platform or suspension of your account.
Communications from Us
You consent to the receipt by both you and the Recipient of calls to your mobile phone number and text (SMS) messages from both Papa and the Papa Pals who are providing Care Services to the Recipient. Standard voice and data charges from your phone carrier may apply to these calls and texts. You may also receive email communications from Papa or Papa Pals, such as information about the services, newsletters, special offers, and account reminders and updates. You can remove yourself from communications that are not related to the delivery of services by following the instructions in the email. If you do not want to receive communication of sensitive or confidential information by email, please notify us at firstname.lastname@example.org.
Rights and Terms for Apps
Subject to your compliance with these Terms, Papa grants you a limited, non-exclusive, revocable, non-sub -licensable and non-transferrable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Papa reserves all rights in and to the App not expressly granted to you under these Terms.
Use of the Platform
You agree to comply with all applicable laws when using the Platform, and you may only use the Platform for lawful purposes. You will not in your use of the Platform cause nuisance, annoyance, inconvenience, or property damage, whether to the Papa Pal or any other user or third party. You will not take any of the following actions with respect to the Platform: reproduce, distribute, license, resell, copy, reverse engineer, mirror, frame, scrape, data mine, spam, access in an unauthorized manner, interfere with, or use to build competitive or similar products.
Papa welcomes feedback, comments and suggestions for improvements to the Platform and the Papa Display (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to Papa a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
7. Disclaimers; Limitation Of Liability; Indemnity
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PAPA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE (I) REGARDING THE RELIABILITY, TIMELINESS, SAFETY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM, CONTENT OR AN PAPA DISPLAY OR ANY SERVICES REQUESTED THROUGH THE USE OF THE PLATFORM, OR (II) THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS.
PAPA EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY PAPA PAL OR OTHER THIRD PARTY. WE DO NOT, AND CANNOT CONTROL YOUR OR ANY RECIEPIENT’S INTERACTION WITH ANY PAPA PAL; WE EXPRESSLY DISCLAIM ANY LIABILITY ARISING FROM SUCH INTERACTION. PAPA ASSUMES NO RESPONSIBILITY FOR ANY PAPA PAL’S FAILURE TO COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS.
PAPA’S RESPONSIBILITIES UNDER THESE TERMS ARE LIMITED SOLELY TO FACILITATING THE AVAILABILITY OF THE PLATFORM AND COLLECTING PAYMENTS ON BEHALF OF THE PAPA PAL. THE PAPA PAL, NOT PAPA, IS RESPONSIBLE FOR THE CARE SERVICES. WE EXPRESSLY DISCLAIM ANY LIABILITY ARISING FROM THE CARE SERVICES.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, AS BETWEEN YOU AND PAPA, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ASSUME THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM. PAPA SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, COST OF SUBSTITUTE SERVICES, PERSONAL INJURY, OR PROPERTY LOSS OR DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM. ANY RELATIONSHIP BETWEEN YOU AND/OR ANY RECIEPIENT, AND ANY PAPA PAL, EVEN IF PAPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PAPA SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND PAPA'S REASONABLE CONTROL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL PAPA'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, CONTENT OR AN PAPA DISPLAY EXCEED THE AMOUNTS YOU HAVE PAID TO PAPA FOR CARE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEEDING THE CLAIM OR ACTION.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAPA AND YOU.
You agree to indemnify and hold Papa and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with your use of the Platform, the Care Services, etc. your lack of authority to bind the Recipient to these Terms, the breach or violation of any of these Terms, or your violation of the rights of any third party, including any Papa Pal.
8. Dispute Resolution; Arbitration
These Terms and any action related thereto will be governed by the laws of the State of Florida without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Papa agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court. You acknowledge and agree that you and Papa are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Papa otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Papa otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Papa submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Papa will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Papa will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Platform” section above, if Papa changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Papa’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Papa in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
If you don’t want to settle Disputes by arbitration as described above, you will notify Papa by sending us an email to email@example.com telling us that you don’t want to use arbitration, within thirty (30) days of the date on which you agreed to these Terms, and consequently you agree that all Disputes will be resolved exclusively by a court located in Broward County, Florida.
Papa may immediately terminate our agreement, as evidenced by these Terms, or the offering of the Platform or any portion thereof, at any time for any reason, through notice as provided below. You may cancel your account at any time by calling us or by emailing us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of the offering of the Platform, the following provisions will survive: “About the Papa Platform”, “Scheduling and Payment”, “Papa Display,” “Feedback,” “Content and Ownership,” “Papa Pals and Care Services” “Disclaimers; Limitation of Liability; Indemnity”; “Dispute Resolution; Arbitration” and “General.”
Papa may give notice by means of a general notice on the Platform, electronic mail to your email address in your account, or by written communication sent by first class mail or pre-paid post to your address in your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Papa, with such notice deemed given when received by Papa, at any time by first class mail or pre-paid post to Papa Technologies, LLC 619 North Highland Drive, Hollywood, FL 33021, or upon receipt when sent by email to Papa at email@example.com.
You may not assign these Terms without Papa's prior written approval. Papa may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Papa's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Papa's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Papa in writing.