Terms of Service
Last Updated Date: November 2017
THESE TERMS OF SERVICE (“Terms”) APPLY WHEN USING MYCARE’S PLATFORM. PLEASE READ THEM CAREFULLY. A GLOSSARY IS AT THE END OF THESE TERMS
1 Background Mycare’s Platform is an online marketplace connecting people looking for services with people offering services. Mycare’s Platform helps you to make connections, manage and pay for services, communicate and share information. The Platform is accessed at www.mycare.co.nz.
2 Acceptance By accessing and using the Platform, you agree you have read, accept, and will use the Platform in accordance with, these Terms. These Terms are a legal agreement between you and Mycare and other Users. If you do not agree to these Terms, you may not use the Platform.
3 Licence to Use As long as you comply with these Terms, Mycare grants you a limited non-exclusive, non-transferable license to access and use the Platform strictly for your own personal use.
4 Mycare is a Marketplace Mycare’s Platform is an online marketplace. Mycare makes the Platform available for Users to post Listings; to find and agree a match that suits them; and to manage and pay for services they agree between themselves. All service contracts and arrangements for home care services are between Users. Mycare is not a party to those contracts. Mycare is not a provider of home care or support services and Mycare has no control over the conduct of Users of the Platform in the provision of such services and disclaims all liability in this regard to the maximum extent permitted by law.
5 Your Risk Mycare’s Platform is intended to help Users connect and engage with each other. All use is at your own risk. Mycare cannot and does not control the actions of any person in relation to the Platform including the provision of any Content. Mycare gives no undertakings, representations, or warranties in relation to any person’s conduct or use of the Platform except as expressly contained in these Terms. You agree not to involve, or attempt to involve, Mycare in any dispute between you and a User or another person as a result of any service, action or omission of a User or another person.
6 Joining Mycare You must register and create a Mycare Account to and access certain features of the Platform. You may only have one active Mycare Account. You agree to provide accurate information during the registration process and to update that information to keep it current. Mycare may in its discretion refuse to accept any registration.
7 Account and Passwords You agree to keep your password safe; not to disclose your password to any third party; to take sole responsibility for any activities or actions under your Mycare Account (including provision of Content, whether or not authorised by you); and to notify Mycare immediately of any unauthorised use of your Mycare Account.
8 Account Changes Mycare may change, restrict, suspend or terminate your Mycare Account and your access to the Platform at its discretion including if any information provided is or becomes inaccurate, fraudulent, deceptive or misleading, or if you do not comply with these Terms. Mycare is not liable to you for any loss or damage incurred by you or anyone else if it changes, restricts, suspends or terminates your Mycare Account. Mycare may in its sole discretion, issue warnings to you, warn other Users about your actions or alleged actions or take other steps it considers appropriate.
9 Trials Mycare may in its discretion offer you trial periods to use the Platform. These Terms apply to all trial periods. You may be required to provide your credit card details in order to participate in a trial. You may cancel a trial by emailing us.
10 Cancelling Your Mycare Account You may cancel your Mycare Account at any time by sending us an email. After your Mycare Account is cancelled, Mycare does not have any obligation to delete or return to you any Content you have provided on the Platform.
11 Mycare Access Mycare may monitor User access to or use of the Platform and may access, use and disclose any use information or Content for the purposes of: operating and improving the Platform; and monitoring and enforcing compliance with these Terms and applicable laws. Mycare may, at any time, without prior notice, in its discretion take such action as it considers reasonable for the above purposes.
12 Feedback Mycare would like your feedback on the Platform. Feedback should be by email or use of other contact details or messaging features on the Platform. All information and ideas in any feedback may be freely used by Mycare for any purpose and the content and copyright in any feedback will, on receipt by Mycare, be the sole property of Mycare and you assign to Mycare all intellectual property rights in all feedback you provide to Mycare.
14 User Content You are responsible for all Content you provide for the Platform (your Content) and will ensure your Content complies with these Terms. Mycare does not assume responsibility for and does not endorse any Content. You should review your Content regularly to ensure it is accurate, lawful and not misleading. You warrant your Content is accurate; you will remove any inaccuracies in your Content; you own or have all rights, licenses and consents necessary to provide your Content; other authorised Users and Mycare may use your Content in accordance with these Terms; and your Content and all use of your Content as contemplated by these Terms will not infringe anyone’s intellectual property rights, privacy, or breach any law.
15 Content Licence You agree that Mycare may use, and you grant to Mycare a worldwide, irrevocable, perpetual, non-exclusive, assignable, royalty-free license (with the right to sublicense) for your Content. Mycare may use your Content for all purposes relating to the Platform including advertising, marketing, commercial and other business purposes in any media or platform without notice or payment.
16 Content Use Content on the Platform may be publicly available, available for Users or certain Users only, or retained on the Platform and unpublished, in each case in Mycare’s discretion. Mycare may, without prior notice, remove, disable or otherwise alter access to Content for any reason including Content that Mycare, in its sole discretion, considers to be objectionable for any reason, in breach of these Terms, or otherwise detrimental or harmful to Mycare, Users other persons or the Platform. If Mycare removes or restricts access to Content it may do so without notice and without liability to you.
17 Background Checks Mycare encourages all Users to conduct or request to see background or other checks as may be appropriate for the types of services you intend to provide or obtain. Mycare may provide Services to assist you getting background or other checks. Mycare provides, at its own cost, Ministry of Justice criminal conviction history checks for all Workers. Where a Worker consents to Mycare obtaining a background check, Mycare may disclose contents of that check to a Client where Mycare believes it is necessary to prevent or lessen serious harm. Mycare does not warrant the contents or results of background checks and all background checks are provided strictly subject to all terms and conditions contained in the relevant terms of service provided to Mycare or you from the Ministry of Justice, Police or other relevant agency. Mycare may, but does not have any obligation to, conduct background checks on any User, including, but not limited to, Clients or Workers.
18 No Endorsement Users are required by these Terms to provide accurate information, and although Mycare may assist with providing additional checks or processes designed to help verify or check the identities or backgrounds of users, Mycare makes no representations about and does not confirm or endorse any User in any way.
19 Your Interactions With Other Users You make your own decisions about the identity and suitability of all persons you communicate with, meet, contract with or have any other interaction with on or in relation to the Platform. Mycare recommends you always exercise care when deciding whether to communicate, meet, contract with or have any other interaction with any other User. Mycare is not responsible for any damage or harm resulting from your interactions with other Users or persons contacted directly or indirectly through the Platform. You agree not to attempt to impose liability on or seek any legal remedy from Mycare relating to actions or omissions of other Users or third parties.
20 Harassment You agree you will not contact, harass or stalk any User of the Platform, or collect or store any personally identifiable information about any user other than for purposes of legitimately transacting on the Platform in accordance with these Terms. If another Mycare User requests that you do not continue to contact or communicate with them then you will cease to contact or communicate with them.
21 User Conduct You agree not do any of the following in relation to use of the Platform:
- breach any law including, employment, health and safety, immigration or criminal law;
- use, access, copy or store any part of the Platform or Content for any commercial or other purposes not expressly permitted by these Terms;
- register a Mycare Account on behalf of a person other than you (except where you are legally authorised to do so or do so with their consent);
- impersonate anyone, falsify or misrepresent yourself or your affiliation with anyone;
- provide or transmit any false, misleading or deceptive Content or Content that infringes anyone’s intellectual property, privacy or contractual rights; or defame anyone
- transmit, distribute, post or submit any Content relating to any other person without their consent, including photographs personal, financial (credit, debit card or account numbers) or other confidential information;
- use the Platform in connection with the distribution of unsolicited commercial messages ("spam") or advertisements for your services or services of another person;
- provide any Content which is obscene, pornographic or offensive;
- promote discrimination, hatred, harassment or harm against any person or group; be violent or threatening or promote violence or actions that are threatening to any other person; or promote illegal or harmful activities or substances;
- encourage, or assist any person to do any of the above
22 Reporting Misbehaviour If you believe a User is acting or has acted inappropriately, including but not limited to anyone who engages in disturbing, criminal, offensive, violent or sexually inappropriate conduct, you should immediately report such person to the appropriate authorities. Mycare will cooperate with all authorities as required by law. Reporting any details of inappropriate activities or actions to Mycare does not require Mycare to take any action or cause Mycare to incur any liability to you.
23 Mycare not responsible for Users Actions You are solely responsible for all of your communications with other users of the Platform and with other persons with whom you communicate or interact as a result of your use of the Platform, including, but not limited to, any other User. You agree to take reasonable precautions in all communications and interactions with other Users of the Platform and with other persons with whom you communicate or interact as a result of your use of the Platform, including, but not limited to, other Users, particularly if you decide to meet them in person regardless of whether such meetings are organised using the Platform. Mycare expressly disclaims all liability for any act or omission of any member or other third party.
24 User Acknowledgement Users agree that Mycare does not act as your advisor or agent and you decide entirely in your discretion who you choose to communicate with, interview, meet or hire. As a User you should obtain your own health and safety, employment, financial, tax and insurance advice in relation to your use of the Platform and your legal responsibilities in relation to any services you contract for. Any agreement you enter into with another User is between you and the User and Mycare is not a party to it. You acknowledge and agree that you are responsible for your own acts and omissions relating to the use of the Platform and any arrangements you make with other Users.
25 Harvesting Users agree not to use the Platform to solicit, recruit or otherwise seek to procure any Worker to join, or provide service for or through, a third party business or service provider, without Mycare's prior written approval. A Client may only contact Workers identified or introduced through the Platform for the genuine purposes of obtaining help and services sought under a current Job and otherwise in accordance with these terms. Unless expressly agreed in writing by Mycare, no User will, in relation to a Listing or Job solicit, encourage, offer, accept or require engagement, employment or other relationships or payment arrangements which have the intent or effect of circumventing the use of Mycare's Visit and payment services on the Platform in accordance with these Terms of Service. Any User who breaches these or related provisions will (in addition to any other action which Mycare may take, including account suspension or termination), be liable, on demand, to pay Mycare the amounts Mycare would have been entitled to charge the User had these Terms of Service been fully complied with in relation to a Job.
26 Clients Using Mycare’s Platform Clients who create a Listing and find suitable Workers will engage those Workers using the Mycare Platform including the hire, create agreement, manage and payment features of the Platform. All Clients who hire a Worker for a Job agree to use the Platform to schedule and record all Visits by that Worker. Clients agree to pay to Mycare the funds required to pay Workers for Visits. Mycare may require those payments to be made in advance of Visits in order to provide certainty of available payment to Workers for scheduled Visits. Mycare may have arrangements with funders or other organisations which allow certain types of Users to use all or part of the Mycare Platform on special arrangements. Mycare may publish details of special arrangements on this site (for example, Mycare has agreed certain use terms for Clients who receive Ministry of Health Funding for Disability Support Services).
27 Workers Using Mycare’s Platform Workers posting a Profile and finding work through the Mycare Platform will engage with Clients using the Mycare Platform including the hire, create agreement, manage and payment features of the Platform. Workers who accept a Job for a Client agree to use the Platform to record Visits for and receive payment from that Client. Workers will not agree to any payment or other arrangement which circumvents the use of the Platform for the provision of services, Visits or payment between the Worker and a Client in relation to a Job.
28 Spirit of Payment Mycare allows Users to access and use the Platform on the basis that Users will observe the spirit of platform use. The spirit of Platform use includes:
- not offering or accepting a payment for hours worked or Visits outside of the Platform
- properly recording the hours in a Visit (not more or less hours than actually worked)
- not giving another User your contact information (phone number, email address or other) for the purpose of off-Platform services or payments
- not cancelling a Visit that has been completed
- not doing any other action that circumvents the Mycare Visit or payment system
(Mycare acknowledges and thanks Task Rabbit for the concept of “spirit of payment”)
30 User Obligations Users, not Mycare, are solely responsible for their obligations under the service agreements they make with other Users, including payment obligations. Users agree and understand they are responsible for all terms and conditions under those transactions or agreements and they, and not Mycare, will be responsible for performing the obligations of any such agreements. Mycare is not a party to such agreements, and Mycare disclaims all liability in relation to any such agreements.
31 Mycare Fees Mycare charges Users Fees for the use of the Platform. Mycare may set or change the structure, timing and amount of Fees at any time in respect of any User or types of User. Taxes may also be charged in respect of Fees. Fees for use of the Platform will be deducted from amounts paid by or payable to Users and are not refundable. Mycare will provide clear information and invoices to you for any Fees it charges you, and you agree to pay the amount invoiced.
32 Payments All payments between a Client and Worker in relation to a Job will be made through the Platform. Mycare will facilitate payment between Users (by credit card, bank payment or otherwise) through Mycare’s selected third party payment agents. You agree Mycare is not responsible for the validity, security or accuracy of such payments and is not a party to the payment for any services provided by any User to another User. You will comply with any relevant terms of service for such third party payment agents.
33 Payments Between Users As part of Mycare’s features, Users appoint Mycare to facilitate payments between them and other Users under their service agreements. In facilitating payments for Users, Mycare assumes no liability for any obligations, acts or omissions of the paying or receiving User. Mycare does not itself make or guarantee payments to Users.
34 Taxes Users agree to provide Mycare with all information reasonably required to comply with Tax laws. Users are solely responsible for keeping the information you provide to us complete and accurate. You agree that you are solely responsible for determining your Tax information, reporting and payment obligations. Workers authorise Mycare to make schedular payment deductions from amounts paid to Workers on behalf of Clients and to pay those deductions to the Inland Revenue Department on behalf of the Worker with the IRD number information provided by the Worker to Mycare. Where Mycare makes those deductions it will provide details to the relevant Worker.
35 Ownership The Platform is protected by copyright, trademark, and other laws of New Zealand. You acknowledge and agree that the Platform, including all associated intellectual property rights, are the exclusive property of Mycare and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform.
36 Mycare Branding All trademarks, service marks, logos, trade names and collateral of Mycare belong to Mycare and may not be used or reproduced without Mycare’s prior written agreement.
37 Restricted Use You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Mycare or its licensors, except for the licenses and rights expressly granted in these Terms.
38 Interference With Mycare Platform Mycare provides its Platform on the basis it will enjoy reasonable public and online access and Mycare’s business relies on all Users using the Platform for proper purposes. Users agree not to:
- enter any false or misleading information into the Platform;
- damage or interfere with the Platform or negatively impact User access to the Platform;
- access or use any system, the Platform or any Mycare API to use, expose, or allow to be used or exposed, any Content or any data relating to the Platform that is not publicly displayed or intended to be publically displayed by Mycare;
- access, use, copy, "scrape," "crawl" or "spider" Content or any data relating to the Platform or create or compile, directly or indirectly, a collection, compilation, database, directory or similar using Content or any data relating to the Platform;
- access, tamper with, or use non-public areas of the Platform, Mycare 's computer systems, or the technical delivery systems of Mycare 's providers; or attempt to probe or test the vulnerability of the Platform, or any Mycare system or network, or breach any security or authentication measures;
- circumvent any technological measure implemented by Mycare or any of Mycare 's providers or any other third party (including another user) to protect the Platform;
- forge any TCP/IP packet header or any part of the header information in any communication, or in any way use the Platform to send altered, deceptive or false source-identifying information;
- re-use or display, mirror or frame any part of the Platform, Mycare 's name, trademark, logo or other proprietary information, or the layout and design of any page or part of a page;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform; or
- encourage or assist any person to do any of the above.
40 No Platform Warranties Mycare does not warrant that the Platform will meet your requirements, or will be available on an uninterrupted, secure, or error-free basis. The Platform is provided "as is", without warranty of any kind, either express or implied. Without limiting this, Mycare expressly disclaims any warranties of merchantability or fitness for a particular purpose.
41 No Other Warranties Mycare makes no warranty regarding the quality of any Content or Users, including the accuracy, timeliness, truthfulness, completeness or reliability of any Content used, seen or otherwise obtained through the Platform. No advice or information, whether oral or written, obtained from Mycare or through the Platform, will create any warranty not expressly made in these Terms.
42 Advertising Mycare may allow advertisements and links on the Platform. By allowing advertising, Mycare does not recommend or endorse advertisers’ goods or services, and you agree Mycare is not responsible for anything promised, said, done or omitted by such advertiser.
43 Indemnity You agree to indemnify, Mycare and its related companies, and their officers, directors, employees and agents, and keep them harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Platform or your non compliance with these Terms; your Content; and your interactions with any User.
44 Excluded Liability You agree that to the maximum extent permitted by law, the entire risk arising from your access to and use of the Platform, any contact you have with other Users of Mycare whether in person or online remains with you. Mycare is not liable for any direct, indirect, incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms, from the use of or inability to use the Platform, from any communications, interactions or meetings with other Users or other persons with whom you communicate or interact as a result of your use of the Platform, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Mycare has been informed of the possibility of such damage, even if a limited remedy set out in these Terms is found to have failed of its essential purpose.
45 Limited Liability If for any reason the exclusions from liability in these Terms do not apply, then Mycare's total liability arising out of or in connection with these Terms and your use of the Site or Services will not exceed the amounts you have paid to Mycare in the six (6) month period prior to the event giving rise to the liability, or $150, whichever is the greater. These limitations of damages are fundamental elements of the basis of the bargain between Mycare and you.
46 Force Majeure Mycare has no liability for non performance, unavailability or failure of the Platform, or compliance with these Terms (“failures”) if the failures arise from any cause reasonably beyond Mycare’s direct control.
47 Amendments Mycare may, in its sole discretion, change the Platform, these Terms, (including Fees) at any time and without prior notice. If we change these Terms, the change will take effect on the earlier of when we post the change on the Platform or otherwise provide you with notice of the change. By continuing to access or use the Platform after we have posted a change on the Platform or have provided you with notice of a change, you are indicating that you agree to be bound by the changed Terms.
48 Entire Agreement These Terms constitute the entire and exclusive understanding and agreement between Mycare and you regarding the Platform and these Terms supersede and replace any and all oral or written understandings or agreements between Mycare and you regarding the Platform.
49 Assignment You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Mycare may assign or transfer these Terms, at its sole discretion, without restriction. These Terms bind the parties, their successors and permitted assigns.
50 Notices Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Mycare via email (in each case to the address that you provide it) or by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which the notice is transmitted.
51 Law and Jurisdiction These Terms and your use of the Platform are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand.
52 General A failure by Mycare to enforce any part of these Terms will not constitute a waiver and any enforcement of these Terms is without prejudice to any other remedies available to Mycare. If a part of these Terms is invalid or unenforceable then that part will be split from the Terms and the remaining Terms will not be affected.
53 Third party beneficiary These Terms do not and are not intended to confer any rights or remedies on any person other than the parties.
54 Contacting Mycare If you have any questions about these Terms please contact Mycare at email@example.com
55 Glossary These terms have these meanings:
“Advertiser” includes a User who provides a Listing for a Job or a Profile or other information using the ad placement features of the Platform
“Client” means a User who requires services the subject of a Listing for a Job or who is an Organiser in relation to that Listing or Job
"Content" includes text, graphics, images, documents, files, music, software, audio, video, information in connection with Accounts and Listings and other information or materials, posted, uploaded or transmitted, or made available on the Platform
"Fees" means the amounts charged by Mycare in relation to the Platform
"Listing" means a Profile or a Job or other searchable information on the Platform
“Job” means a description of services required or sought by a Client and published on the Platform in the format provided by Mycare from time to time
"Mycare", "we", "us", or "our" means Mycare Limited
"Mycare Account" means the account membership status and information required by Mycare
“Organiser” means a User who has an organiser role (as determined by Mycare from time to time) when using the Platform
“Platform” includes the Site, Services and Content
“Profile” means the information provided by a Worker or other User describing the Worker or User and the services the Worker or other User offers
"Services" means the functionality and services provided by Mycare via the Platform
"Site" means www.Mycare.co.nz and any other websites or mobile application through which Mycare makes the Services available
"Tax" or "Taxes" means any taxes, goods and services taxes (GST), amounts in the nature of tax, scheduler payments and withholdings that may be requested or required by law to be paid, collected or deducted and remitted to governmental agencies
“User” means all users of the Platform including a person who completes Mycare’s registration process and opens a Mycare Account, and including but not limited to Clients, Workers, Advertisers and other Users
“Visit” means a scheduled visit or attendance by a Worker for a Client where the Worker provides services in relation to a Job
"Worker" means a Member who creates a Profile or uses the Services relating to a Job and includes a volunteer
“You” and “your” are a reference to you