Updated January 21, 2020
Welcome to www.restup.today and/or the RestUp mobile application (the “Site”) operated by RestUp, LLC. (also referred to as “RestUp”, “we”, “us” or “our”).
We provide our Careseekers, Caregivers, and Facility/Agency Providers (hereinafter both referred to collectively as “You” or “Your” or “Users”) with an online network, designed to connect those family members and friends looking for non-medical home care services for a care recipient with non-medical home care providers (“Caregivers”), and Facility/Agency Providers with skilled and licensed Health Care Professionals. “Facility/Agency Provider” shall mean any health care facility (such as assisted living facilities, skilled nursing facilities, hospitals, doctor’s offices, etc.) or home health care agency which agrees to RestUp’s Facility/Agency User Agreement.
Please review the following terms carefully. Each time You access the Site or use the Services, You are agreeing to be bound by these terms, whether You are a “Guest” (which means that You simply browse the Site), or You are a “User” (which means that You have established an account with us as either a Caregiver or Careseeker). If You do not agree to all of these terms, RestUp is unwilling to grant You access to the Site or Services, and You must cease access to the Site and Services immediately.
The Site and Services provided by RestUp are not medical services or advice and are not intended to replace or substitute any professional or medical advice. RestUp expressly disclaims, and You expressly release RestUp 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 Site or Services. You should consult with an appropriately trained professional or medical provider for all concerns that require professional or medical advice
RestUp is not the employer of the Caregiver it refers to the Careseeker. RestUp makes no guarantee as to the quality of the services provided by a Caregiver. RestUp makes no guarantee as to the accuracy of each Caregiver’s profile nor as to the liability insurance status of each Caregiver. However, RestUp may choose to treat the Caregiver as an independent RestUp, LLC. The Caregiver may be the Careseeker’s employee or an independent RestUp, LLC depending on the relationship each has with each other. If the Careseeker directs and controls the manner and means by which the Caregiver performs his or her work, the Careseeker may have employer responsibilities, including employment taxes and workers’ compensation, under state and federal law.
RestUp does not hire, train, or set rates for our Caregivers. For additional information contact your local Employment Office or the IRS.
In the event that a Careseeker complains about the quality of the services rendered, breakage, theft, property damage, bodily injury, or any other problem occurring in or on the premises where Caregiver rendered service, it is the sole responsibility of Caregiver to resolve the matter directly with the Careseeker, and not with RestUp.
If any such complaints are received by RestUp, We agree to promptly inform Caregiver in order for Caregiver to be able to resolve the matter directly with the Careseeker. RestUp will remove a Caregiver from the Site after three (3) such complaints.
Caregiver releases RestUp, its owners, officers, directors, employees and agents from any and all liability and/or damages claimed or incurred in relation to or as a result of Caregiver’s services, action, negligence, or pursuant to or ancillary to this Agreement.
The work and services performed by the Caregiver shall be at the risk of the Caregiver and Careseekers, exclusively. To the fullest extent permitted by law, Caregiver shall indemnify, defend (at Caregiver’s sole expense) and hold harmless RestUp, LLC, affiliated companies of RestUp, LLC (including Facility/Agency Providers), their partners, joint ventures, representatives, members, designees, officers, directors, shareholders, employees, agents, successors, and assigns (“Indemnified Parties”), from and against any and all claims for bodily injury, death or damage to property, demands, damages, actions, causes of action, suits, losses, judgments, obligations and any liabilities, costs and expenses (including but not limited to investigative and repair costs, attorneys’ fees and costs, and consultants’ fees and costs) (“Claims”) which arise or are in any way connected with the Caregiver’s work performed, Materials furnished, or Services rendered under this Agreement or Facility/Agency User Agreement incorporated herein, by Caregiver or its agents. These indemnity and defense obligations shall apply to any acts or omissions, negligent or willful misconduct of Caregiver, its employees or agents, whether active or passive. Said indemnity and defense obligations shall further apply, whether or not said claims arise out of the concurrent act, omission, or negligence of the Indemnified Parties, whether active or passive. Caregiver shall not be obligated to indemnify and defend RestUp, LLC for claims found to be due to the sole negligence or willful misconduct of Indemnified Parties. Caregiver’s indemnification and defense obligations hereunder shall extend to Claims occurring after this Agreement is terminated as well as while it is in force, and shall continue until it is finally adjudicated that any and all actions against the Indemnified Parties for such matters which are indemnified hereunder are fully and finally barred by applicable Laws.
Additionally, to the fullest extent permitted by law, Careseekers shall indemnify, defend (at Careseeker’s sole expense) and hold harmless RestUp, LLC, affiliated companies of RestUp, LLC, their partners, joint ventures, representatives, members, designees, officers, directors, shareholders, employees, agents, successors, and assigns (“Indemnified Parties”), from and against any and all claims for bodily injury, death or damage to property, demands, damages, actions, causes of action, suits, losses, judgments, obligations and any liabilities, costs and expenses (including but not limited to investigative and repair costs, attorneys’ fees and costs, and consultants’ fees and costs) (“Claims”) which arise or are in any way connected with the Careseeker or Careseeker’s care recipient in their receipt of services rendered under this Agreement by Caregiver or its agents. These indemnity and defense obligations shall apply to any acts or omissions, negligent or willful misconduct of the Careseeker or the Careseeker’s care recipient, its employees or agents, and family or friends. Said indemnity and defense obligations shall further apply, whether or not said claims arise out of the concurrent act, omission, or negligence of the Indemnified Parties, whether active or passive. Careseekers shall not be obligated to indemnify and defend RestUp, LLC for claims found to be due to the sole negligence or willful misconduct of Indemnified Parties. Caregiver’s indemnification and defense obligations hereunder shall extend to Claims occurring after this Agreement is terminated as well as while it is in force, and shall continue until it is finally adjudicated that any and all actions against the Indemnified Parties for such matters which are indemnified hereunder are fully and finally barred by applicable Laws.
Upon execution of this Agreement, and prior to the Caregiver’s commencing any work or services with regard to the Project, the Caregiver shall carry Professional Liability Insurance commonly referred to as, "Medical Malpractice Insurance" or simply, "Med Mal." It can also be known as an "Errors and Omissions" policy. The Caregiver shall provide the RestUp, LLC with a Certificate of Insurance and Additional Insured Endorsement naming the RestUp, LLC and the Owner as Additional Insureds thereunder. Additional insured coverage shall apply as primary insurance with respect to any other insurance afforded to Owner and RestUp, LLC.
The coverage available to the RestUp, LLC and Owner, as Additional Insureds, shall not be less than $100,000 per incident and an aggregate limit of $300,000. Such insurance shall cover claims arising from real or alleged errors or omissions, including negligence, in the course of your professional duties. All coverage shall be placed with an insurance company duly admitted in the State of Indiana and shall be reasonably acceptable to RestUp, LLC. All Caregiver insurance carriers must maintain an A.M. Best rating of “A-” or better. Coverage shall be afforded to the Additional Insureds whether or not a claim is in litigation.
The insurance coverage required under the preceding paragraph shall be of sufficient type, scope, and duration to ensure coverage for the RestUp, LLC for liability related to any manifestation date within the applicable statutes of limitation and/or repose which pertain to any work performed by Caregiver while using the Services provided by the Site.
Caregiver agrees to maintain the above insurance for the benefit of RestUp, LLC and Owner for a period of five (5) years, or the expiration of the Statute of Limitations pursuant to Ind. Code § 34-11-2-4(1), whichever is later.
Each Certificate of Insurance shall provide that the insurer must give the RestUp, LLC at least 30 days’ prior written notice of cancellation and termination of the RestUp, LLC’s coverage thereunder. Not less than two weeks prior to the expiration, cancellation or termination of any such policy, the Caregiver shall supply the RestUp, LLC with a new and replacement Certificate of Insurance and Additional Insured endorsement as proof of renewal of said original policy. Said new and replacement endorsements shall be similarly endorsed in favor of RestUp, LLC and Owner as set forth above.
Additionally, and prior to commencement of use of and services performed for any Careseekers, the Caregiver shall provide the RestUp, LLC with a Certificate of Insurance showing liability insurance coverage for the Caregiver and any employees, agents, or Sub-Caregivers of the Caregiver for any Workers’ Compensation, Employer’s Liability and Automobile Liability. In the event any of these policies are terminated, Certificates of Insurance showing replacement coverage shall be provided to RestUp, LLC. Coverages shall be no less than the following:
Individual liability insurance as a home health aide at a minimum of $100,000 per incident and an aggregate limit of $300,000 while using the Services and providing non-medical home health care under this agreement..
Waiver of Subrogation: Caregiver shall obtain from each of its insurers a waiver of subrogation on Commercial General Liability in favor of RestUp, LLC and Owner with respect to Losses arising out of or in connection with the Work.
You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services (“Our Technology”) are: (a) copyrighted by us and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of RestUp or other entities. You are not authorized to use any such Marks.
RestUp may, in RestUp's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to RestUp through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content").
Any User Content provided by you remains your property. However, by providing User Content to RestUp, you grant RestUp a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and RestUp's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant RestUp the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor RestUp's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation
You also certify under penalties of perjury that all information provided in any profile, either Caregivers or Careseeker, is true and accurate.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by RestUp in its sole discretion, whether or not such material may be protected by law. RestUp may, but shall not be obligated to, review, monitor, or remove User Content, at RestUp's sole discretion and at any time and for any reason, without notice to you.
When You access the Site and/or Services, You obtain access to various kinds of information and materials, all of which we call “Content.” Content includes information and materials posted to the Site or through the Services by You and other Users. You are entirely responsible for each individual item of Content that you post, email or otherwise make available on the Site or the Services. You agree not to revise Content posted by others, and You represent and warrant that You will not post or use any Content in any manner that: violates the privacy, publicity, or other rights of third parties, including other Users; violates any law, statute, ordinance or regulation, including laws regarding anti-discrimination and false advertising; is discriminatory, false, or harmful in any way as determined by us in our sole discretion.
It is our goal to make access to our Site and Services a good experience for all Users. Correspondence between Caregivers and Careseeker should be for the sole purpose of connecting Careseekers and Caregivers, in effort to provide non-medical home care. If You receive the personal information of any other User through the use of the Services, You may use the information solely as necessary to conduct a transaction through the Site and Services. You may not use another User’s personal information for any other purpose.
You agree not to, and represent and warrant that you will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use of the Site or Services or access to the Site or Services for any purposes other than for which the Site or Services are being provided to You, or do any of the following:
RestUp is not designed at a platform to connect Careseeker to Caregivers for the purposes of transportation. No Caregiver should be providing transportation to a Careseeker in with respect to the services described in this agreement. However, if Careseeker has elected to have the Caregiver provide transportation in the Careseeker’s car, Careseeker will be responsible for all necessary insurance to cover any accidents or liability that may occur. If you have elect to be transported in the Caregiver’s car, you understand that the Careseeker will ride in the Caregiver’s personal car as a passenger of the Caregiver. RestUp expressly disclaims, and you hereby expressly release RestUp, from any responsibility or liability for any damages resulting from your use of transportation services from a Caregiver.
RestUp does not designate any portion of your payment as a tip or gratuity to the Caregiver. While you are free to provide additional payment as a gratuity to any Caregiver, 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 Careseeker is asked to provide ratings of the Caregiver, you agree that all ratings will represent the independent, honest and genuine opinion of the person providing the rating.
The Site and Services provided by RestUp or the independent Caregivers 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 Caregiver is with a Careseeker, neither the Caregiver nor RestUp shall be liable for any damages resulting from any act or omission of the Caregiver. Whether a Caregiver renders emergency care is at the discretion of the Caregiver. Caregivers and, if applicable, RestUp, shall be entitled to the full benefit of any “Good Samaritan” laws.
Careseekers are responsible for providing a safe and secure environment for the Caregiver, and for obtaining all necessary insurance to protect against harm to the Caregiver. If a Caregiver detects violence or abuse affecting the Careseeker, the Caregiver may be required by law to report that abuse to law enforcement.
By using our Services, Careseekers agree to pay Caregivers at the hourly rate then in effect and specified by Caregivers at the time of the transaction, unless specifically notified otherwise. Careseeks and Caregivers agree that in consideration for the use of RestUp Services, both parties agree that Twenty (20%) of the Caregiver’s total fee shall be paid as a network usage fee, charged after each transaction is complete. RestUp reserves the right, at any time, to modify its fees and/or billing methods. If Careseekers uses our Services, then:
i. information regarding the type of care and services requested to be provided by the Caregiver;
ii. Name, address, and phone number; and
iii. credit card information
At the end of each working shift a receipt is created for each Careseeker to whom the Caregiver provided care during such period.
RestUp is not responsible for and will not reimburse any fees incurred by Caregiver or Careseeker from their bank or other financial institution, including without limitation overdraft charges, insufficient funds charges, interest charges, or finance charges, which may have occurred as a result of charges billed by RestUp.
RestUp reserves the right to correct any errors in the payment of RestUp fees even if it has already requested and/or received payment. Careseekers will remain responsible for the RestUp fee and any other applicable fees in connection with any refund or chargeback of a Caregiver’s payment. RestUp may use third party payment processing services to process bank account information and ACH transfers.
RestUp expressly disclaims any and all liability for any claims or damages related to RestUp’s use of third party payment processing services and ACH transfers, including without limitation any damage that may result should any such information be released to any third parties.
All payments relating to services provided by a Caregivers to a Careseeker must be made through the payment channels provided or specified by RestUp.
RestUp uses a third party payroll service to ensure the proper payment to Caregivers and reporting to the IRS.
RestUp may send Users SMS text messages and Push Notifications in connection with the Services or otherwise. Receipt of the SMS text messages from RestUp is voluntary. By deciding to receive SMS text messages and Push Notifications from RestUp, You give RestUp express permission to send SMS text messages and Push Notifications to Your cellular phone and/or mobile device. Additionally, You do hereby represent, understand and expressly agree that RestUp does not have control over or assume any responsibility for the quality, accuracy, or reliability of this Service. Carrier charges may apply for receiving SMS text messages. You are solely responsible for any costs You incur when receiving SMS text messages from RestUp.
You expressly agree that your use of the Site and/or Services is at your sole risk. Both the Site and Services are provided by us on an “as is” and “as available” basis. We expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to, any warranties of merchantability, fitness for a particular use or purpose, non-infringement, title, operability, condition, quiet enjoyment, value, accuracy of data and system integration. We make no warranty that the site and/or services will meet your requirements, or that the site and/or services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the site or services, or that defects in the site or services will be corrected.
You acknowledge and agree that we are only willing to provide access to the site and to provide the services if you agree to certain limitations of our liability to you and to third parties. You understand that to the extent permitted under applicable law, in no event will we or our officers, employees, directors, parents, subsidiaries, affiliates, agents or licensors be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, lost real estate opportunities, or business interruptions or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy), arising out of or related to your use of or access to, or the inability to use or to access, the site or the services, regardless of whether such damages are based on contract, tort (including negligence and strict liability), warranty, statute or otherwise. We will not be liable for any damages arising from the transactions between you and third party merchants or service providers or for any information appearing on third party merchant or service provider sites or any other site linked to our site. In no event will we be liable to you or any third party in connection with any act or omission of any User. If you are dissatisfied with any portion of this site or the services, your sole and exclusive remedy is to discontinue use of the site and the services.
You understand and agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
Caregivers hereby acknowledge that You are not legally affiliated with RestUp in any way, and that you are only an independent RestUp, LLC of RestUp. Caregivers also acknowledge that they may also be employees of the Careseekers sought on this Site or Services. Caregivers or the Agencies that employ them
These Terms and any action related thereto will be governed by the laws of the State of Indiana without regard to its conflict of laws provisions.
Agreement to Arbitrate
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) 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 RestUp 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 RestUp 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. RestUp 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, RestUp 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 RestUp 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 RestUp’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 RestUp 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 RestUp 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 Indianapolis, Indiana.