Care.com Commercial Provider Referral Program
Last Updated: July 11, 2013
These Terms and Conditions (the "Agreement"), contains all of the terms and conditions between Care.com, Inc. ("Care.com") and you as a Commercial Provider (as defined below) and govern your participation in the Care.com Commercial Provider Request for Information Program described herein (the "RFI Program") offered on the Care.com website and through any Care.com mobile application (collectively, the "Site"). Please read this Agreement before enrolling or using the Site as a Commercial Provider. By enrolling as a Commercial Provider on the Site, You hereby represent, warrant, understand, agree to and accept all terms and conditions contained herein. If you object to anything in this Agreement, do not use the Site as a Commercial Provider. The terms and conditions of this Agreement are subject to change by Care.com at any time, effective upon posting on the Site, and your participation in the RFI Program after such posting will constitute acceptance by you of such changes.
As part of its service, Care.com maintains certain information from approved company-based care providers ("Commercial Providers" or "You") and presents such information to interested users ("Users") of the Site, as appropriate in its sole discretion, which may include in search results and otherwise. Users have the ability, at their option, to request information about You or Your services via the method or methods offered on the Site, which may include completing a request for information form on the Site, which Care.com will then email to You, calling You via a phone number posted on our Site provided the call lasts at least ten seconds, linking to Your Site via a website text link on our Site and/or other methods as determined by Care.com and agreed to by You (collectively, "RFIs"). In return for listing Your information on the Site and facilitating contact by Site Users, You agree to pay certain fees ("Fees") to Care.com as described and agreed during the enrollment process for the RFI Program.
The Listing. By enrolling as a Commercial Provider, You authorize Care.com to publish certain information ("Content") about You, submitted by You in the enrollment process or thereafter, on the Site in the form of a listing ("Listing"). Care.com reserves the right to refuse any request for a Listing or to cancel any Listing for any reason, including but not limited to the failure to fulfill the obligations set forth in this Agreement, or for no reason. By submitting Content to the Site You automatically grant, and You represent and warrant that You have the right to grant, to Care.com, its affiliates, licensees and successors, during the term of this relationship, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing, in each case: (i) for the purposes of identifying You to Users, identifying You on the applicable service category pages of the Site, or otherwise fulfilling Care.com's obligations hereunder, (ii) to promote and market the Site and Your representation thereon, and (iii) for purposes otherwise expressly approved in advance, in writing, by You. You further represent and warrant that public posting and use of Your Content by Care.com will not infringe or violate the rights of any third party.
Listing Contents. The Listing will contain information You provide to Care.com. You agree to provide true, accurate, current and complete information about Your business and Your products/services. Failure to provide information in such manner may result in Care.com suspending or terminating Your Listing. The Listing will appear in the service category areas of the Site selected in the enrollment process, and will be in a style and format consistent with other similar Listings in those areas. Care.com reserves the right to change the style, form, content and appearance of the Site at any time. You agree to maintain the accuracy of information contained in Your Listing. If any information included in your Listing is or becomes inaccurate, you will promptly update Your Listing and notify Care.com. The Listing and any changes thereto are subject to approval by Care.com. Certain changes that You make to Your Listing may require review by Care.com prior to posting, which review will be performed within five (5) business days of submission. If such changes are approved, they will be promptly reflected in your Listing. If they are declined, Care.com will notify you as to the reason for the rejection and provide You an opportunity to revise and re-submit them.
Care.com Responsibilities with Respect to RFIs. After publication of the Listing on the Site, Care.com or its agents will forward to You any requests for information forms completed on the Site.
Commercial Provider Responsibilities with Respect to RFIs. You agree to respond to all RFIs as soon as possible, but in any event no more than two (2) business days after receipt. You agree to utilize RFIs solely for purposes directly related to fulfilling or responding to them. Without limiting the foregoing, You agree not to distribute or re-sell any RFI information whatsoever to any third party without the express consent of the User or to utilize any RFI for purposes of cross-selling products and services not sold by You. Further, You agree to comply with all applicable privacy, marketing and other laws and regulations in connection with Your handling and use of RFI information, including without limitation any and all obligations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the CAN-SPAM Act of 2006 (CAN-SPAM), and the Telephone Consumer Protection Act of 1991 (TCPA).
Other. Care.com is not responsible for any failure to receive RFIs due to spam filters, address-book filters, filters imposed by internet service providers, or failure on the part of Your communications vendors to deliver the RFIs without any negligence on the part of Care.com. Any other provision of this Agreement notwithstanding, Care.com shall have the right to withhold the forwarding of any RFI information to You for any reason in its sole discretion, provided that You will be charged only for those RFIs that are actually forwarded or directed to You. You agree to adhere in all of Your dealings in connection herewith to the substance and spirit of the following Code of Conduct provisions:
Fees. During the enrollment process, You agreed to pay fees to
Care.com at either (i) a set rate regardless of the number of RFIs you receive
(“Set Fees”), or (ii) a variable rate based on the number of RFIs you receive
(“Variable Fees”), plus any applicable sales or other taxes. The Set Fees and
the Variable Fees, plus any applicable sales or other taxes, are each also
referred to in this Agreement as the “Fees”. By completing and submitting the
information in the enrollment process, You authorize Care.com to compute and
charge to Your credit card the Fees You agreed to during the enrollment
process. If You have agreed to pay Set Fees, You agree that Care.com will
charge you upfront for the total fee for the subscription term You select,
unless otherwise agreed to by You and Care.com. You also agree that Care.com
will automatically renew your subscription at the end of each subscription
term, and charge your credit card upfront for the total current fee for that
subscription term, unless You have canceled Your subscription before the end of
Your prior subscription term. If You have agreed to pay Variable Fees, You
agree that Care.com will charge you monthly based on the number of FRIs you
received during the prior month at the then current RFI unit price for each
RFI; provided, however, that Care.com will charge You no more than the maximum
budget amount for RFIs (the “Monthly Budget Cap”) as specified by
You during enrollment and/or any subsequent changes you make in accordance with
the change procedures established by Care.com from time-to-time. If any
Monthly Budget Cap is reduced to a level below the number of RFIs already
received in the current month, You will be responsible for all RFIs
received prior to the reduction but transmission of additional RFIs will be
paused for the remainder of the current month and the new Monthly Budget
Cap will take effect in the following month. You may pause or cancel Your
participation in the RFI Program at any time in accordance with the
procedures established by Care.com from time-to-time to pause or cancel
Your participation. However, if You have agreed to pay Set Fees and You
cancel or pause Your participation, You will not be entitled to a refund of
any Set Fees You previously paid or continue to owe Care.com. Moreover, if
You have agreed to pay Variable Fees and You cancel or pause Your
participation, you will remain responsible for payment for any Variable
Fees accrued prior to the pausing or cancellation. Care.com reserves the
right to change Fee prices at any time provided that Care.com will provide
at least thirty (30) days notice to You, via an email communication sent to
the email address on file in your account profile, before any price change
goes into effect. Care.com also reserves the right to correct any billing errors or mistakes that it makes even if it has already requested or received payment.
Refund/Credit Procedure. If You have agreed to pay Set Fees and Care.com terminates Your participation in the RFI Program without cause during a subscription period, You will be entitled to a pro-rata refund of the Set Fees You paid for that subscription period based on the amount of time remaining in the period. In all other instances, Set Fees paid to Care.com are final and nonrefundable. If You have agreed to pay Variable Fees, You may request credit for any portion of a previously charged Variable Fee that You believe in good faith is attributable to: a) an RFI form in which neither the phone number nor email address provided is valid for the individual listed on the form; b) an RFI made by an individual for whom You had previously paid a Variable Fee within the prior sixty (60) days; or c) an RFI made by an individual for purposes other than to inquire about products or services You offer. In order to be eligible to receive a credit, Your account with Care.com must be current and You must request the credit within ten (10) business days of the date the RFI was received, using the process specified at enrollment, or otherwise updated and communicated to You by Care.com. Care.com will investigate the request and will reply with the result of the credit request investigation within five (5) business days of receiving the credit request. All Care.com decisions are final. Care.com reserves the right to contact the User who submitted the RFI to assist it in determining whether the RFI is eligible for a credit pursuant to the credit criteria listed above. Requests for credit that are approved by Care.com generally will be credited against the following month's charges. If the credit amount exceeds the following month's charges, the credit balance will be carried over to future months until the full amount has been credited. If Your account is closed either by You or by Care.com for any reason and a credit balance remains, Care.com will refund to You the remaining credit balance within thirty (30) days.
Failure to Pay. In the event of non-payment, Care.com reserves the right to suspend or terminate Your account until such charges are paid. Care.com may also charge interest on undisputed balances unpaid for more than thirty (30) days, in which case interest charges will accrue from the 31st day with respect to any unpaid, undisputed amount at a rate of 1% per month or the maximum rate allowed by law, whichever is lower. Care.com shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys' fees, expenses and costs) incurred in attempting to collect payments from You.
4. Use of Marks
Commercial Provider Marks. You hereby grant to Care.com, its affiliates, licensees and successors an irrevocable, perpetual, non-exclusive, fully paid, worldwide right and license during the term of this relationship, subject to the terms and conditions hereof, to use Your logo(s), tradename(s) or trademark(s) (the "Marks") or those of Your affiliates, (i) for the purposes of identifying You to Users, identifying You on the applicable service category pages of the Site, or otherwise fulfilling Care.com's obligations hereunder, (ii) to promote and market the Site and Your representation thereon, and (iii) for purposes otherwise expressly approved in advance, in writing, by You. You further represent and warrant that Care.com's use of your Marks in accordance with these terms will not infringe or violate the rights of any third party.
General. Neither party may represent or imply to a User or other third party that it is acting on behalf of the other party hereto or that the other party hereto has approved of or endorsed its products or services. All goodwill associated with use of Your Marks shall inure to the benefit of You and/or Your affiliate(s), as applicable.
5. Term and Termination
If you have agreed to pay Set Fees, You agree that Your subscription will be automatically extended for successive renewal periods of the same duration as Your original subscription unless You cancel Your subscription before the end of Your current subscription term. If You agreed to pay Variable Fees, Your subscription will continue on a month-to-month basis until terminated. You and Care.com each reserve the right to terminate the relationship with the other party at any time for any reason or no reason upon two (2) business days notice to the other party. In the event of termination by either party any payments due from either party to the other party will be made immediately. Each party reserves the right to terminate this Agreement immediately upon notice to the other party in the event the other party should commit or otherwise become associated with, for any reason, any act that would reasonably be expected to have an adverse impact on the reputation or public image of the terminating party. Care.com reserves the right to send a notice of such termination to Users with whom Care.com has reason to believe you have corresponded.
By agreeing to the terms of this Agreement, You agree to indemnify, defend and hold harmless Care.com and its affiliates, officers, directors, employees, stockholders, representatives and agents from and against any and all claims, losses, expenses or demands of liability, including attorneys' fees and costs incurred by them in connection with any claim by a third party (including an intellectual property claim) arising out of: (i) any breach by You of Your obligations under this Agreement, (ii) any willful misconduct or negligent act, omission or misrepresentation by You, Your agents or Your employees, (iii) any violation by You of any federal, state or local, law, rule or regulation, (iv) any disputes between You and any User, or (v) the violation or alleged violation of third-party intellectual property rights or proprietary rights by any Listing or other materials and content you submit, post or transmit through the Site or otherwise provide to Care.com for inclusion on the Site. You may not settle any claim subject to indemnification without the prior written consent of Care.com. In addition, Care.com may, at its sole expense, participate in the defense and settlement of the claim.
7. Warranties; Disclaimers
Warranties. Each party represents and warrants to the other party that (i) this Agreement constitutes a valid and binding obligation of such party, enforceable in accordance with its terms; (ii) such party has full power and authority to enter into this Agreement and perform its obligations hereunder; (iii) the making of and performance under this Agreement by such party does not violate any agreement or obligation existing between such party and any third party; (iv) the making of and performance of this Agreement does not infringe upon any third parties' rights and (v) each party shall, at all times, comply with all applicable federal, state and local laws, regulations and ordinances. You represent, warrant and covenant that: (i) all of the information provided to Care.com hereunder, including information submitted in connection with the Listing, is truthful and not misleading, fraudulent, defamatory, libelous, threatening, harassing, or obscene; (ii) You are authorized to provide the products and services set forth in the Listing; (iii) You have the right to use each copyright, trademark, trade name, service mark, graphic, photograph, or any other intellectual property in the way it is used under this Agreement; and (iv) any advertising copy or materials and any linked advertising shall comply with all applicable laws and regulations.
DISCLAIMERS. OTHER THAN SET FORTH HEREIN, CARE.COM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE CARE.COM SITE, ANY PRODUCTS, SERVICES OR INFORMATION PROVIDED THROUGH THE CARE.COM SITE, OR THE ACCURACY OF, OR RESULTS TO BE OBTAINED BY USING, THE CARE.COM SITE. Care.com is not involved in any actual transactions between Users and You through the RFI Program. Thus, Care.com has no control over the interest or ability of Users to purchase items or pay for services or the suitability of any User for Your products or services. Care.com cannot and does not control whether or not Users will complete the purchase of products or services for which they have requested information. Because user authentication on the Internet is difficult, Care.com cannot and does not guarantee that each User is who he or she professes or claims to be. You assume all risk when using the Site, including but not limited to all of the risks associated with any online or offline interactions with Users of the Site, and Care.com disclaims any liability arising out of or in any way connected with such interactions.
8. Ratings & Reviews
Ratings and reviews posted on the Site are the opinions of their respective authors. Such authors are solely responsible for such content. Care.com does not adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Service. Under no circumstances will Care.com or its affiliates be responsible for any loss or damage resulting from reviews or comments made about you on the Site by other Users.
You understand and agree that Care.com may review and delete any Content, in each case in whole or in part, that in the sole judgment of Care.com violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site. We reserve the right to remove, screen, edit, or reinstate ratings and reviews from time to time at our sole discretion and without notice to you. You may encourage others to write reviews about your business. However, you agree not to, and will not assist or enable others to write a fraudulent or defamatory review, trade reviews with other businesses, compensate anyone to write a review on your behalf, or write a review that you were paid for either directly or indirectly by the business being reviewed. You do have the right to rebut a review by posting a response to a current review of your business.
9. Limitation of Liability
Incidental Damages and Aggregate Liability. In no event will Care.com be liable for any indirect, special, incidental, punitive, or consequential damages, losses or expenses arising out of or relating to Your participation in the RFI Program, including without limitation damages related to any information received from the Site, removal of content from the Site, including profile information, any email distributed to any User or any linked web site or use thereof or inability to use by any party, or in connection with any termination of Your participation in the RFI Program or ability to access the Site, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Care.com or its representatives are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL CARE.COM'S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID BY YOU IN THE PREVIOUS TWELVE (12) MONTHS, OR, IF YOU HAVE NOT PAID CARE.COM FOR THE USE OF ANY SERVICES, THE AMOUNT OF US$25.00 OR ITS EQUIVALENT.
No Liability for non-Care.com Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CARE.COM BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, PUNITIVE, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERACTIONS WITH OTHER USERS OF THE SITE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
Unless otherwise specified herein, in the enrollment process or on our Site, any notice by one party hereto to the other shall be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address or the mailing address specified in your account profile and to us at Care.com, Inc., 201 Jones Road, Suite 500, Waltham, MA 02451, Attn.: Legal Department. All paper notices will be deemed effective on the date of personal delivery, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Service, as applicable. All email notices will be deemed effective when sent by us to the email address specified in your account, whether actually received or not, and all notices on our Site will be deemed effective upon posting on our Site, whether or not reviewed by you.
Care.com does not approve of, or endorse, any product or service by electronically publishing the Listing. Care.com may publish entries or listings for any other party at any time. You and Care.com are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. Any claims or legal actions by one party against the other shall be commenced and maintained exclusively in any state or federal court located in Boston, Massachusetts, and both parties hereby submit to the jurisdiction and venue of any such court and agree not to bring any claim or legal action in any other jurisdiction or venue. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent. No principle of construction or rule of law that provides that an agreement be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall apply to the terms and conditions of this Agreement. The invalidity, illegality or unenforceability of any term or provision of this Agreement shall in no way affect the validity, legality or enforceability of any other term or provision of this Agreement. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. No waiver of any default in performance of this Agreement by either party, or waiver of any breach or a series of breaches of any of the terms, covenants or conditions of this Agreement shall constitute a waiver of any subsequent breach or a waiver of such terms, covenants or conditions. Neither party may assign, sell, transfer, delegate or otherwise dispose of this Agreement or any rights or obligations hereunder without the prior written consent of the other party, except that either party may assign this Agreement to any affiliate or any successor entity in a merger, consolidation, business combination or sale of all or substantially all of its assets. Any purported assignment, transfer, or delegation in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Headings herein are for convenience of reference only and shall not be considered in any interpretation of this Agreement. This Agreement constitutes the entire agreement between Care.com and You, and supersedes any prior verbal or written agreements regarding the subject matter hereof.