1. Authority to Bind Care Recipient
This Agreement is between Tomeah and you, or on behalf of a care recipient (“Recipient”). You represent and warrant that (a) you and the Recipient (if not yourself) are at least the age of legal majority in your jurisdiction; and (b) if the Recipient is someone other than yourself, you have full power and authority to legally obligate that person to this Agreement. In such a case, that person shall also be bound by this Agreement, and every reference in this Agreement to “you” and “your” shall also include the Recipient. Upon request, you will provide Tomeah with evidence of any such authority and will indemnify Tomeah against any claims based on your lack of authority.
2. No Professional or Medical Advice
You acknowledge that Tomeah’s Services are not a medical service or advice and are not intended to replace or substitute any professional or medical advice. Any information provided as part of the Services may not be relied on as medical advice, and you should consult with an appropriately trained professional or medical provider for all concerns that require professional or medical advice. In the course of providing services, Tomeah collects certain information about the care recipient and, as part of the service, transmits that information to you and others (for example, information about meals, visit notes, etc.). All information is collected and transmitted for your convenience only, and Tomeah is not responsible for taking action on any information that Tomeah collects or observes during the course of providing Care Services..
3. General Payment Terms
4. Cancellation by You
You may cancel any appointment for Services within the Tomeah Health App or by calling Tomeah at 470-729-2160. All appointments must be cancelled no later than 24 hours prior to the scheduled start time. You hereby authorize us to charge your credit card for any scheduled appointments that you do not cancel in accordance with this section, including if the Caregiver is unable to deliver the services due to the unavailability of or refusal of care 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.
5. Substitution of Caregiver
If a Caregiver is unable to make any scheduled appointment and Tomeah receives sufficient advance notification, Tomeah will make every reasonable effort to find a replacement Caregiver in sufficient time. If no replacement is available, you will be notified and no charge will be assessed for the appointment. Tomeah shall not otherwise be responsible for any inability to provide a substitute Caregiver.
6. Discounts and Promotion
Periodically, Tomeah may offer discounted or promotional rates (in an amount subject to Tomeah’s sole discretion), which will be subject to any additional terms outlined in connection with such discount or promotion. Any discounts and promotions offered may not be combined with any other offer.
7. Direct Hire Penalty
During a visit, if you elect to have the Caregiver 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 elect to be transported in the Caregiver’s car, you understand that the Recipient will ride in the Caregiver’s personal car as a passenger of the Caregiver. Tomeah expressly disclaims, and you hereby expressly release Tomeah from, any responsibility or liability for any damages resulting from your use of transportation services from a Caregiver. Mileage will be charged for transportation in the Caregiver’s car at then-current rates.
Tomeah does not designate any portion of your payment as a tip or gratuity to the Caregiver. While you can provide additional payment as a gratuity to any Caregiver at your discretion, you are under no obligation to do so. If you do decide to provide gratuities to our Caregivers, you are responsible for determining whether any such gratuity is reportable to a taxing authority and for any accompanying reports or remittance of applicable tax payments.
11. Tomeah Health Ratings
Upon completion of Caregiver visits, you or the Recipient will be asked to provide ratings of the service provided. By submitting, you agree that all ratings represent the honest and independent opinion of the person providing the rating.
12. Good Samaritan
As detailed in Section 3, the Services provided by Tomeah Health 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 Tomeah Caregiver is with a Recipient, neither the Caregiver nor Tomeah shall be liable for any damages resulting from any act or omission of the Caregiver. Whether a Caregiver renders emergency care is at the sole discretion of the Caregiver. Caregivers and, if applicable, Tomeah Health, shall be entitled to the full benefit of any “Good Samaritan” laws.
13. Communication from Tomeah Health
You hereby consent to the receipt of calls to your phone and mobile phone, as well as text (SMS) messages, from both Tomeah and the Caregivers who are providing Care Services to the Recipient. This consent covers both you and 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 Tomeah or Caregivers, including information about the Recipient, about the services, newsletters, special offers, and account reminders and updates. You can unsubscribe 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.
14. Privacy and Confidentiality
When you use Tomeah, personal information is submitted about both you and the Recipient. This information may include your name, address and mobile phone number, as well as information about the Recipient that may be relevant to the Care Services, including physical or mental condition, medications, preferences, diet, etc. You agree to provide accurate, complete and up-to-date information, and your failure to do so may result in adverse outcomes, including the inability of the Caregiver to provide the Care Services, your inability to access and use the Platform or suspension of your account.
15. Disclaimers; Limitation Of Liability; Indemnity
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE 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. TOMEAH MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE (I) REGARDING THE RELIABILITY, TIMELINESS, SAFETY, SUITABILITY, OR AVAILABILITY OF THE SERVICE, OR (II) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS.
TOMEAH 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 SERVICE. TOMEAH SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TOMEAH’S REASONABLE CONTROL. IN NO EVENT SHALL TOMEAH’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO TOMEAH FOR SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM OR ACTION.
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.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN TOMEAH AND YOU.
You agree to indemnify and hold Tomeah 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 Service, your lack of authority to bind the Recipient to this Agreement, the breach or violation of any of this Agreement, or your violation of the rights of any third party, including any Caregiver.
16. Governing Law
This Agreement and any action related thereto will be governed by the laws of the State of Georgia without regard to its conflict of laws provisions.
17. Agreement to Arbitrate
Tomeah believes that arbitration represents the best way to resolve disputes and accordingly requires that all disputes be resolved by arbitration.
18. Changes to Agreement or Service
Tomeah may modify the Agreement, including the rates it charges you, by sending notice as set forth in Section 19. If you do not want to be bound by the modified terms, then you must stop using the Services. Because our Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion. Any changes will be effective 48 hours after the time it is deemed to be given under the terms of Section 19, or such later date specified in the notice.
Tomeah may give notice by means of a general notice on the Platform, correspondence to your email address as listed on your account, or by written communication to the 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 12 hours after sending (if sent via email). You may give notice to Tomeah, with such notice deemed given when received by Tomeah, at any time by first class mail to Tomeah Health, LLC, 3423 Piedmont Road, Suite 560, Atlanta, GA 30305, or upon receipt when sent by email to Tomeah at email@example.com.
Tomeah may assign this Agreement without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Tomeah’s assets, business or equity; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of this Agreement 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. Tomeah’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Tomeah in writing.
Updated October 24th, 2017