Phlex65 Terms of Service
Last Updated: April 27, 2022
These Terms of Service are a legal agreement (the “Agreement”) between you and Phlex65.com Inc. a Delaware C Corporation doing business as Phlex65 (“Phlex65,” “we,” “us” or “our,” and includes our licensors, licensees, suppliers, advertisers, officers, members, employees, consultants, and agents) governing your use of the Phlex65 application, website, and technology services (collectively, the “Phlex65 Services”).
Please be advised: This Agreement contains provisions that govern how claims you and Phlex65 have against each other can be brought (see Section 18 below). These provisions will, with limited exception, require you to submit any claims to binding and final arbitration on an individual basis, not as a plaintiff or class member in any class, group or representative action or proceeding.
By entering into to this Agreement, you expressly acknowledge that you understand it and accept all its terms. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use or access the Phlex65 Services.
1. The Phlex65 Services
The Phlex65 Services provide a community that facilitates the matching of qualified Caregivers (each a “Caregiver”) to assist clients (each a “Client”) in personal care grooming, ambulation, assisting in transfer, cooking, light housekeeping, assistance in bathing and other Activities of Daily Living (“ADLs”) of the non-medical variety (collectively, “Caregiving Services”). The Phlex65 Services enable a Client to peruse and solicit a Caregiver to provide Caregiving Services. Caregivers and Clients are “Users” of the Phlex65 Services. Any decision by a User to offer or accept Caregiving Services is made in that User’s sole discretion. Each assignment of Caregiving Service (an “Assignment”) is a separate legal agreement that is solely between the Client and Caregiver.
Phlex65.com Inc. is a referral agency and is not the employer of any Caregiver. Depending on a Client’s arrangement with the Caregiver, that Client may have employer responsibilities.
2. Who can be a User of the Phlex65 Services?
The Phlex65 Services may only be used by individuals who can form legally binding contracts under applicable law. The Phlex65 Services is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent that you are at least 18 years old and that you have the right, authority and capacity to enter into this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized person accessing your account.
We require you to register as a User before you use or access the Phlex65 Services by providing us complete and accurate information requested on the registration form such as a User name and password. You are solely responsible for maintaining the confidentiality of your password. You agree to notify us immediately of any unauthorized use of your account, User name, or password. We shall not be liable for any loss you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by us.
3. We grant Users a license to use the Phlex65 Services
The Phlex65 Services contain images, text, software, and other content (the “Content”), all of which is owned by us or our licensors and protected by intellectual property laws. During the term you are an authorized User, you are granted a limited, non-transferable license to access the Content and use the Phlex65 Services, subject to this Agreement. If you cease to be an authorized User, your license automatically terminates.
5. Referral Fees paid by the Client to Phlex65
For our referral of Caregivers to the Client for perusal and possible solicitation, Clients pay us a referral fee with a Credit Card a fee (collectively, the “Referral Fees”) of $30.00 per hour for one (1) hour up to eight (8) hours of service. After 8 hours a flat rate of $260.00 will be charged until twelve (12) hours of Caregiving Services have been provided. Caregiver Services in 24-hour increments will be charged at a flat rate of $280.00. Payments are made to us through an independent third party payment service. All Referral Fees are facilitated through a third-party payment processing service. Phlex65 may replace such payment services without notice to you.
6. Fees paid by the Client to the Caregiver
The Client pays the Caregiver directly through an independent third party payment service.
7. How we communicate with Users
By becoming a User, you agree to receive communications from us, such as by e-mail, text message, and phone calls. Such communications may relate to your User account or use of the Phlex65 Services, and updates concerning new and existing features of the Phlex65 Services. Standard text messaging fees applied by your cell phone carrier will apply to text messages we send.
As Users, each Caregiver and Client have the opportunity to respond to our surveys or other communications and provide feedback regarding their experience in using the Phlex65 Services. We reserve the right to remove any User from the Phlex65 database based on feedback we receive if, in our sole discretion, we believe removal is in the best interests of the wellbeing of Phlex65 User community.
8. We collect some of your information
You may be able to create or log-in to your Phlex65 User account through online accounts you may have with third party social networking sites (each such account, an "SNS Account"). By connecting to Phlex65 through an SNS Account, you understand that Phlex65 may access, store, and make available any SNS Account content according to the permission settings of your SNS Account [such as friends, mutual friends, contacts or following/followed lists (the “SNS Content”)]. You understand that SNS Content may be available on and through the Phlex65 Services to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be Your Information.
9. Prohibited activities
When using the Phlex65 Services, you agree that you will not (a) impersonate anyone; (b) violate any provision of this Agreement or any applicable law; (c) interfere with the Phlex65 Services or related servers or networks; (d) act in a manner which is illegal, false, misleading, defamatory, abusive, obscene, harassing, or otherwise offensive; (e) infringe any third party’s rights, including but not limited to intellectual property rights, or rights of publicity or privacy; (f) attempt to interrupt, damage, or limit the functionality of any software or system or intercept or expropriate any data or personal information; (g) disguise the origin of any information transmitted; (h) “frame” or “mirror” any part of the Phlex65 Services or use any device to direct any person to any other web site; (i) modify, reverse engineer, decompile or otherwise disassemble any portion of the Phlex65 Services or any related software; (j) give access to, rent, sell, redistribute, or license the Phlex65 Services; (k) use any process to in any way reproduce or circumvent the navigational structure or presentation of the Phlex65 Services; (l) link to any other web site; (m) transfer or share your User account, password or identification; (n) discriminate against anyone on the basis of age, race, ethnicity, religion, gender, gender identity, disability, medical condition, marital status, or sexual orientation; or (o) encourage or cause any third party to engage in any restricted activity listed above.
10. Intellectual property
All intellectual property rights in the Phlex65 Services are solely owned by Phlex65 and its authorized licensors.
11. Users’ copyright concerns
We respect intellectual property rights, and we insist Users to do the same. If you believe that posted Content infringes your rights under copyright law in specific materials (collectively, a "Work"), please follow the procedure described below to notify us of your concerns or objections.
The Digital Millennium Copyright Act of 1998 (the "DMCA") gives recourse to copyright owners who believe material on the Internet infringes their rights under U.S. copyright law. If you have a good faith belief that material on the Phlex65 Services or the Content infringes your copyright, to the extent allowed by law you or your agent may send us a notice requesting that the material be removed or that or access to it be blocked (the “Notice”). The Notice must contain the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted Work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Service; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
If you believe in good faith that a Notice of copyright infringement has been wrongly filed by us against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See www.loc.gov/copyright for details. You may wish to consult your legal adviser before filing a Notice or counter-notice. Please be aware that there can be penalties for false claims under the DMCA.
Any Notice or counter-notices must be sent to us at:
Phlex65 Inc., Legal Department, P.O. Box 26593 San Jose, CA 95126 or by email email@example.com
Phlex65 does not provide the Caregiving Services; that relationship is solely between the Client and Caregiver. It is up to the Caregiver to decide whether or not to provide Caregiving Services to a Client contacted through the Phlex65 Services, and it is up to the Client to decide whether or not to request Caregiving Services from any Caregiver listed by the Phlex65 Services. We have no direction or control over the Caregiving Services.
The Phlex65 Services are provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from your use of the Phlex65 Services or the Caregiving Services. We specifically disclaim any implied warranties of merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Phlex65 Services will be completely uninterrupted, always available, secure, or error-free, or will meet your particular requirements, that any defects in the Phlex65 Services will be corrected in a particular timeframe, or that the Phlex65 Services is free of viruses or other harmful components.
Phlex65 expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us without delay.
Phlex65 is not responsible for the conduct, whether online or offline, of any User. You are solely responsible for your interactions with other Users. It is possible for others to obtain information about you that you provide, publish or post to or through the Phlex65 Services (including any profile information you provide), send to other Users, or share during the Caregiving Services, and to use such information to harm you. We are not responsible for the use of any personal information that you disclose to other Users. Please carefully select the type of information that you post on the Phlex65 Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users).
Any information or Content concerning Phlex65 or made available through the Phlex65 Services, but not directly composed by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such Content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other Content posted by third parties. We reserve the right, but we have no obligation, to monitor the materials posted on the Phlex65 Services and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this Agreement.
Location data provided by the Phlex65 Services is for basic location purposes only. Phlex65 does not guarantee the availability, accuracy, completeness, or timeliness of location data tracked or displayed by the Phlex65 Services. Any of Your Information, including geo-locational data, you upload, provide, or post on the Phlex65 Services may be accessible to Phlex65 and certain Users of the Phlex65 Services.
Phlex65 shall not responsible or liable for any fees, costs, or overage fees associated with any data plan you use to access the Phlex65 Services.
13. Links to third party web sites
The Phlex65 Services may contain links to web sites (the “Linked Sites”). We do not review their content or management, and we are not responsible for them. Our inclusion of any Linked Site does not mean we endorse it. Your interaction with any Linked Site is at your sole risk.
14. State and local disclosures
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at www.Phlex65.com/terms/disclosures. Please check regularly for updates.
You will defend, indemnify, and hold us harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) (a “Loss”) related to (a) your use of the Phlex65 Services, (b) interaction with Users, or (c) your violation of this Agreement. We will notify you promptly of any Loss and provide you with reasonable assistance, at your expense, in defending any such Loss. This indemnity is applicable without regard to the negligence of any party, including any indemnified party.
16. Limitation of liability
In no event will we be liable to you for any incidental, special, exemplary, punitive, consequential, or indirect damages (including, but not limited to, loss of data or service interruptions) related to the Phlex65 Services, your interaction with Users, or this Agreement, however arising, including negligence, even if we or our agents or representatives have been advised of the possibility of such damages. Certain jurisdictions may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
17. Term and termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: (a) by a User, without cause, upon seven (7) days’ prior written notice to Phlex65; or (b) by either the User or Phlex65 immediately, without notice, upon the other party’s material breach of this Agreement. In addition, Phlex65 may terminate this Agreement or deactivate your User account immediately in the event: (a) you no longer qualify to be a User or (b) Phlex65 has the good faith belief that such action is necessary to protect the wellbeing of Users or third parties.
18. Dispute resolution
Agreement to binding arbitration between you and Phlex65
You and Phlex65 mutually agree to waive our respective rights to resolution of disputes in a court of law by a judge or jury and agree to resolve any dispute by arbitration, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Phlex65 ends. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. Except as expressly provided below, this Arbitration Agreement applies to all Claims between you and us. “Claims” include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to this Agreement or the Phlex65 Services.
Prohibition of class actions
You understand and agree that you and Phlex65 may each bring Claims in arbitration against the other only in an individual capacity and not on a class, collective action, or representative basis (“Class Action Waiver”). You understand and agree that you and Phlex65 both are waiving the right to pursue or have a dispute resolved as a plaintiff or class member.
Notwithstanding any other provision of this Agreement or the American Arbitration Association Rules (“AAA”), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
Rules governing the arbitration
Any arbitration shall be administered by the AAA pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org). Notwithstanding the foregoing, if requested by you and if appropriate based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different parties, but is bound by rulings in prior arbitrations involving the same party to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
Location and Manner of Arbitration
Any arbitration hearings or proceedings shall take place in Santa Clara County, California.
If any portion of these arbitration provisions is deemed illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed and the remainder of the arbitration provisions in this Agreement shall be given full force and effect.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Phlex65’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by Phlex65 for your own use or for any purpose other than as contemplated in this Agreement. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Confidential Information of Phlex65 in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Phlex65 with regard to any Confidential Information which you can prove: (a) was in the public domain at the time it was disclosed by Phlex65 or has entered the public domain through no fault of yours; (b) was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of Phlex65; (d) becomes known to you, without restriction, from a source other than Phlex65 without breach of this Agreement by you and otherwise not in violation of Phlex65’s rights; or (e) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to Phlex65 to enable Phlex65 to seek a protective order or otherwise prevent or restrict such disclosure.
20. Your relationship with Phlex65
You acknowledge and agree that your use of the Phlex65 Services does not create between you and Phlex65 any relationship of employment, joint venture, partnership, or agency.
Phlex65 does not, and shall not be deemed to, direct or control the giving or receiving of Caregiving Services. You retain the sole right to determine when, where, and for how long you will utilize the Phlex65 Services. Clients have sole discretion whether or not to solicit a particular Caregiver. Caregivers have sole discretion (a) whether to accept, decline, or ignore a Client’s request for Caregiving Services via the Phlex65 Services and (b) engage in other business or employment activities.
21. Modification to this Agreement
If Phlex65 modifies this Agreement, such modifications are binding on you only upon your acceptance of the modified Agreement. Phlex65 reserves the right to modify any information referenced in the links from this Agreement from time to time, and such modifications become effective upon posting. Your continued use of the Phlex65 Services after any such changes shall constitute your consent to such changes.
22. General Provisions
Except as provided in Section 18 regarding arbitration, this Agreement shall be governed and interpreted by the laws of the State of California without regard to choice of law principles. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Phlex65, in our sole discretion, by providing notice to you. Except as explicitly stated otherwise, any notices to Phlex65 shall be given by certified mail, postage prepaid and return receipt requested to MACMA GROUP, LLC P.O. Box 26593, San Jose, California 95126. Any notices to you shall be provided to you through the Phlex65 Services or given to you via the email address or physical address you provide to Phlex65 during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement, along with any separate agreement you may enter into with Phlex65 in your particular role as a Client or Caregiver, sets forth the entire understanding and agreement between you and Phlex65 with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Phlex65 Services, please contact our Customer Support Team at firstname.lastname@example.org
By accessing the Phlex65 Services, you agree to be bound by this Agreement.
PLEASE NOTE THAT, TO COMPLETE YOUR REGISTRATION WITH US, YOU WILL BE REQUIRED TO VERIFY YOUR CONSENT TO THIS AGREEMENT.