Terms of Engagement
Effective February 2018
PLEASE READ THESE TERMS OF ENGAGEMENT (“TERMS”) CAREFULLY. YOUR USE OF THE SERVICES PROVIDED BY ELDERCARE NAVIGATORS ON ITS WEBSITES AND/OR THE SERVICES PROVIDED BY ANY AFFILIATED OR SUBSIDIARY COMPANY OF ELDERCARE NAVIGATORS IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION. BY USING THESE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND ALL TERMS INCORPORATED BY REFERENCE.
PLEASE NOTE THAT THESE TERMS CONTAIN CLASS ACTION WAIVER, WAIVER OF RIGHT TO JURY TRIAL, AND A MANDATORY AND BINDING ARBITRATION CLAUSE. THESE AFFECT YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH ELDERCARE NAVIGATORS PLEASE READ IT.
The Services are provided by Eldercare Navigators (hereinafter referred to as “Consultant”) and include the use of the CONSULTANT’s website and or Services specifically set forth in any other specific written agreement between CONSULTANT and CLIENT.
The Terms apply to your access to, and use of, the Services, so please read them carefully.
We reserve the right to change or modify any of the Terms and/or the Services at any time. If we decide to change our Terms, we will post a new version on the Consultant’s website and update the date in the footer. Any changes or modifications will be effective immediately upon posting of the revisions on the site, regardless of whether we provide you with any specific notice of such changes or modifications. To the extent that notice is required under any applicable law or otherwise, you waive the right to such notice, provided that this sentence will not apply to you if you are a Washington State resident or to the extent you are seeking Services in Washington State. Your use of the Services following the posting of changes or modifications to the Terms will constitute your acceptance of the revised Terms. Therefore, you should review the Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Services. If you do not agree to the amended terms, you must immediately stop using the Services.
The Terms do not alter in any way the terms or conditions of any other agreement you may have with CONSULTANT for services, products or otherwise. Your access to, and use of, the Services may also be subject to any legal notices or additional terms and conditions applicable to the Services, in addition to these Terms, (“Additional Terms”). Where Additional Terms apply to the Services, the Additional Terms will be accessible for you to read through your use of the Services and/or provided separately. These Terms, together with the Additional Terms, form a legally binding agreement between you and the CONSULTANT in relation to your use of the Services. It is important that you take the time to read them carefully. If there is any contradiction between what the Additional Terms say and what these Terms say with respect to the Services, then the Additional Terms shall take precedence in relation to that Service.
To use the Site and/or Services, you must be of legal age to enter into a binding contract and not be prohibited from using the Site and/or Services by the laws of the jurisdiction from which you access the Site and/or Services.
Eldercare Navigators is a consulting and information service that provides resources and personalized assistance in finding care facilities. CONSULTANT will help individuals find options based on their stated needs and preferences. The Client will then choose the facility that best fits their needs and preferences. CONSULTANT does NOT enter into an agreement with the CLIENT and the Facility for the facility’s services. CLIENT is solely responsible for evaluating, accepting and or declining the services selected out of the number of recommended facilities identified by CONSULTANT. CONSULTANT has no contractual relationship with any of the facilities and is not liable for any of the facilities’ services or the quality of care.
Assistance in gathering information on types of facilities may include independent living, home care, residential care homes, assisted living, specialized memory care and skilled nursing. Based on the family’s stated needs and preferences, we provide the family with information about different facilities to the CLIENT. The CLIENT will then, with or without the assistance of the CONSULTANT, interview, visit, and select the facility of the CLIENT’s choice. The CLIENT will receive and be able to review detailed information about facilities in their preferred geographical location and get personalized, knowledgeable assistance from the CONSULTANT throughout the entire process.
In addition to the above services, CONSULTANT also provides those services set forth on the Sites as updated and modified, including but not limited to non-medical case management, simple advance directive assistance, referrals to professionals such as attorneys, tax or other advisors at CLIENT’s request, review of invoices and health insurance.
No Endorsement; No Affiliation; Not a Broker
We exercise no independent judgment as to the quality of, nor do we recommend or endorse, any facility. We provide only an information service and do not (1) place the CLIENT in any facility, (2) perform any medical assessment of or for the CLIENT or the facility, or (3) participate in the CLIENT’s and facility’s decision regarding final selection or admittance. Further, we are not a representative of or agent for either the CLIENT or the facility and do not act on either’s behalf. It is the responsibility solely of the facility and the potential resident, and/or the potential resident’s family and care provider(s) and/or other involved parties acting on the potential resident’s behalf to determine if any person is an appropriate admission to the facility. CONSULTANT does not broker, sell or lease space directly and is not a party to any transaction between the provider and the resident, CLIENT or their family.
No Professional Advice
All information, materials, content and/or advice on the Sites or provided through the Services is for informational purposes only and is not intended to replace or substitute for any professional, financial, medical, legal or other advice. CONSULTANT expressly disclaims, and you expressly release CONSULTANT 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 Sites and/or Services. You should consult with an appropriately trained specialist for all concerns that require medical, legal, financial or other professional advice.
Privacy and Consent to Communications
Use of Sites; Limited License
You are granted a limited, non-sublicensable license to access and use the Sites and all content, data, information and materials included in the Sites (the “Site Materials”) solely for your personal use, subject to the terms and conditions set forth in the Terms. You will not use the Sites or any of the Site Materials other than for their intended purpose or in any way that is unlawful or harms CONSULTANT. Any use of the Sites or the Site Materials other than as specifically authorized herein is strictly prohibited and, without limiting other available remedies, will automatically and immediately terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in the Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by CONSULTANT at any time.
No Unauthorized Access of and/or Use of the Sites and/or Services
The following are examples of some actions and activities that are prohibited by you in accessing and/or using the Sites and/or Services, and you agree not to do any of the following:
Using the Sites for commercial purposes.
Conducting or promoting any illegal activities while using the Sites or Services.
Uploading or attempting to upload or otherwise transferring any virus, worm, trap door, back door, Trojan horse, timer, clock, counter, or other limiting or malicious routine, instruction, or design that would cause harm to the Sites, CONSULTANT’s computer and/or telecommunication systems or data.
Interfering in any way with the proper functioning of the Sites (including harming, disabling, or significantly slowing) or interfering with or disrupting any servers or networks connected to the Sites, or disobeying any requirements, procedures, policies or regulations of networks connected to the Sites.
Modifying, copying, distributing, reselling, transmitting, displaying, performing, reproducing, publishing, licensing, creating derivative works from, framing in another web page, and/or using on any other Web site or service any of the Sites content.
Engaging in the practices of “screen scraping,” “database scraping,” “data mining” or any other activity with the purpose of obtaining lists of users or other information, in whole or in part, from the Sites or use web “bots” or similar data gathering or extraction methods for such purposes.
Attempting to reverse engineer or jeopardize the correct functioning of the Sites, or otherwise attempting to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Sites;
Attempting to gain access to secured portions of the Sites.
Circumventing, attempting to circumvent, disabling, or attempting to disable, or discovering or attempting to discover any security measures (including without limitation encryption algorithms, keys, passwords, and the like) used by or for CONSULTANT to protect its computer and/or telecommunications systems.
Using the Sites and/or Services to generate unsolicited email advertisements or spam; and/or allowing, enabling, or otherwise supporting the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam).
Using the Sites and/or Services to stalk, harass or harm another individual.
Impersonating any person or entity, or otherwise misrepresenting your affiliation with a person or entity; or
Uploading, distributing or printing anything that may be harmful to minors.
Mirroring or framing the Sites, placing pop-up windows over its pages, or otherwise affecting the display of its pages.
Engaging in any other action in any way that is unlawful or harms CONSULTANT.
Intellectual Property Ownership
All trademarks, service marks, and trade names are proprietary to CONSULTANT and our licensors. All rights, title, and interests in and to the Sites, including content, materials, trademarks and other intellectual property contained in the Sites, vest solely in CONSULTANT and its licensors. The CONSULTANT name, and any CONSULTANT products and services, slogans or logos referenced herein on the Sites are either trademarks or registered trademarks of CONSULTANT in the United States and/or other countries. The names of actual third-party companies and products mentioned in the Sites may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved.
Hyperlinks to External Web Sites
The Sites may provide links to external Web sites (“External Web Sites”). We provide these links to External Web Sites for your convenience only. We do not control such External Web Sites; therefore, CONSULTANT is not responsible for the content of any linked site or any link contained in a linked site. Our inclusion of links to such External Web Sites does not imply any endorsement of any such third party who advertises their goods or services through the Sites (including facilities). We make no claim or representation regarding, and accept no responsibility for, the quality, content, nature or reliability of External Web Sites.
THE SITES AND THE SITE MATERIALS (INCLUDING ALL THIRD PARTY CONTENT), AND ALL LINKS, INFORMATION, MATERIALS, EVALUATIONS, RECOMMENDATIONS, SERVICES AND PRODUCTS PROVIDED ON OR THROUGH THE SITES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT USE OF THE SITES AND THE MATERIALS IS AT YOUR SOLE RISK. CONSULTANT AND ITS ASSOCIATED PARTIES (DEFINED AS AFFILIATES, SUCCESSORS, OFFICERS, DIRECTORS, SHAREHOLDERS, PERSONAL REPRESENTATIVES, AGENTS, AND EMPLOYEES) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SITES, THE SITE MATERIALS, LINKS, INFORMATION, MATERIALS, SERVICES AND PRODUCTS AVAILABLE ON OR THROUGH ON THE SITES AND/OR SERVICES. IN ADDITION, CONSULTANT IS NOT RESPONSIBLE FOR THE PRODUCTS OR SERVICES PROVIDED BY, OR THE CONDUCT OF, ANY THIRD PARTY OR ITS AGENTS OR EMPLOYEES (EVEN IF WE HAVE INTRODUCED YOU TO SUCH PARTY OR PARTIES), INCLUDING WITHOUT LIMITATION, ANY PARTICIPATING COMMUNITY OR OTHER HEALTH CARE AND/OR ANY OTHER SENIOR HOUSING AND CARE PROVIDER, WHETHER OFFLINE OR ONLINE. NO ORAL OR WRITTEN INFORMATION FROM CONSULTANT OR ANY OTHER PARTY WILL MODIFY THIS DISCLAIMER. CONSULTANT EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR COVENANTS THAT THE MATERIALS ON THE SITES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WHILE WE ATTEMPT TO PROVIDE YOU ACCESS SAFE FROM VIRUSES, CONSULTANT DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SITES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL CONSULTANT BE LIABLE TO USER FOR ANY OF THE PRODUCTS, SERVICES, CONTENT OR INFORMATION PROVIDED THROUGH THE SITES OR OTHERWISE PROVIDED BY OR ON BEHALF OF CONSULTANT.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CONSULTANT OR THE ASSOCIATED PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE SITES AND/OR SERVICES, OUR ACTS OR OMMISSIONS UNDER OR IN ANY WAY RELATED TO THE SITES AND/OR SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH THE SITES AND/OR SERVICES, REGARDLESS OF THE LEGAL THEORY INCLUDING WITHOUT LIMITATION TORT, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY BY US OR ANY ASSOCIATED PARTY, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS OF THIS “LIMITATION OF LIABILITY” SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS (SUCH AS WASHINGTON STATE) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INDIRECT DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify and hold CONSULTANT and the Associated Parties harmless from any claim or demand, including attorneys’ fees, arising out of your use of the Sites and/or the Services or your violation of our Terms, or the infringement by you of any intellectual property or other right of any person or entity.
We may terminate or suspend your access to the Sites at any time, with or without cause, and with or without notice. Upon such termination or suspension, your right to use the Sites will immediately cease.
Changes to the Sites and/or Services
We reserve the right to change, modify, suspend, or cease providing the Sites and/or Services (and therefore, your access to and use of) at any time without notice.
Governing Law and Forum Selection
The Terms are construed under the laws of the State of Washington, without reference to its conflict of laws provisions. You agree that any action at law or in equity arising out of or relating to the Sites and/or Services can be filed only and exclusively in a state or federal court located in Seattle, Washington, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of the Sites and/or Services. You hereby knowingly, voluntarily, intelligently, and irrevocably waive any available affirmative defenses under federal law or any states’ laws to venue and jurisdiction in Seattle, Washington, including without limitation improper venue, forum non conveniens, lack of in personam jurisdiction, and all related defenses. You further agree that this forum-selection clause shall apply to any and all claims under federal law or any states’ laws and that arise from or relate in any way to the Sites and/or Services, including, without limitation, contract, tort, and all other statutory or common law claims seeking equitable or legal relief, whether asserted as a cause of action, counterclaim, cross-claim, affirmative defense, or otherwise, and whether asserted on an individual basis or as putative representative of a class.
Class Action Waiver
For disputes arising between CONSULTANT and you, or any other user, you and we agree that we can only bring a claim against each other on an individual basis. NEITHER YOU NOR WE CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. If a court decides that this “Class Action Waiver” subsection is not enforceable or is invalid, then this Section shall cease to have effect, however, the remaining portions of the Terms will remain in full force and effect.
Waiver of Right to Jury Trial
YOU HEREBY KNOWINGLY, VOLUNTARILY, INTELLIGENTLY, AND IRREVOCABLY WAIVE YOUR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, OR IN ANY MANNER RELATING TO THE TERMS AND/OR CONSULTANT’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER. The scope of this waiver is intended to be all-encompassing and shall apply to any and all claims arising under federal law or any states’ laws and that arise from or relate in any way to the subject matter of the Terms and/or our performance, including, without limitation, contract, tort, and all other statutory or common law claims seeking equitable or legal relief, whether asserted as a cause of action, counterclaim, cross-claim, affirmative defense, or otherwise, and whether asserted on an individual basis or as putative representative of a class. You expressly acknowledge that this provision is an essential aspect of the bargain embodied by the Terms. If a court decides that this “Waiver of Right to Jury Trial” subsection is not enforceable or is invalid, then this Section shall cease to have effect, however, the remaining portions of the Terms will remain in full force and effect.
Claims Subject to Mandatory and Binding Arbitration
Subject to and without limiting the Governing Law and Forum Selection section, you expressly agree that any claim or cause of action that arises from, relates to, or has connection with the Sites and/or Services shall be adjudicated exclusively and finally by arbitration in Seattle, Washington, administered by the American Health Lawyers Association Alternative Dispute Resolution Service under its Rules of Procedure for Arbitration (available at http://www.healthlawyers.org). The arbitration award shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except as required by applicable law, you knowingly, voluntarily, intelligently, and irrevocably waive any right to appeal from the arbitration award, including but not limited to any appeal from any judgment entered on the arbitration award or any order based thereupon. YOU EXPRESSLY AGREE THAT ANY CLAIM OR CAUSE OF ACTION THAT IS SUBJECT TO ARBITRATION UNDER THE TERMS MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER EXPRESSLY AGREE THAT THE ARBITRATOR SHALL NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. If a court decides that this “Mandatory and Binding Arbitration” subsection is not enforceable or is invalid, then this Section shall cease to have effect, however, the remaining portions of the Terms will remain in full force and effect.
Waivers Not Applicable in Washington State
To the extent such provisions are not allowed or we otherwise state in writing to you that such provisions of the Terms are not intended by us to apply to you, waivers of liability and rights by certain individuals do not apply under Washington State law and therefore the waivers of liability and rights set out in the Terms may not apply to you if you are a Washington State resident or to the extent you are seeking Services in Washington State.
Copyright Infringement Notices / Digital Millennium Copyright Act (DMCA) Notices
If you believe in good faith that materials hosted by us infringe your copyright, you (or your agent) may send us a written notice that includes the following information. Please note that we will not process your complaint if it is not properly filled out or is incomplete. Any misrepresentations in your notice regarding whether content or activity is infringing may expose you to liability for damages.
1. A clear identification of the copyrighted work you claim was infringed.
2. A clear identification of the material you claim is infringing on the Website, such as a link to the infringing material.
3. Your address, email address and telephone number.
4. A statement that you have a “good faith belief that the material that is claimed as copyright infringement is not authorized by the copyright owner, its agent, or the law.”
5. A statement that “the information in the notification is accurate, and under penalty of perjury, the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
6. A signature by the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may send us your notice by email to firstname.lastname@example.org .
If any part of the Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms will continue in effect. You may not assign the Terms, or assign, transfer or sublicense your rights, if any, in the Sites. Except as expressly stated herein, the Terms constitute the entire agreement between you and CONSULTANT with respect to the Sites.