Updated and Effective as of: May 16 2016
THESE TERMS OF SERVICE (“TERMS OF SERVICE”) GOVERN YOUR USE OF AND ACCESS TO THE SERVICES (DEFINED BELOW) PROVIDED BY OPENPLACEMENT, INC. AND ITS AFFILIATES (“OPENPLACEMENT”, “WE”, “US”, “OUR”). BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
If you are using the Services on behalf of an organization (e.g., a care provider), you are agreeing to these Terms of Service on behalf of that organization and promising to OpenPlacement that you have the authority to bind that organization to these Terms of Service (in which event, “you” and “your” will refer to that organization), unless that organization has a separate contract with us, in which event the terms of that contract will govern your use of the Services.
If you are using the Services on behalf of individuals who are in need of senior care (“Care Recipients”), you hereby represent and warrant that you have express authority and consent from the applicable Care Recipient to enter into these Terms of Service and register for and use the Services on that Care Recipient’s behalf and/or disclose any information, including, but not limited, to care needs, limitations and location, about such Care Recipient.
If at any time OpenPlacement becomes aware that the above authority or consent has been withdrawn or was misrepresented, OpenPlacement reserves the right to promptly terminate your use of the Service.
To be eligible to access and use our Services, you must meet the following criteria:
By accessing, requesting to use, registering to use and/or using the Services, you represent and warrant that (a) you meet the eligibility criteria set forth above, and (b) you have the right, authority and capacity to enter into these Terms and you commit to abide by all of the terms and conditions hereof, subject to Section 1 (Authority and Consent).
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MUST NOT USE THE SERVICES.
The services offered by OpenPlacement include openplacement.com and all linked pages, features, content (including OP Content, User Content and third party content), application and other services (the “Services”). Subject to the terms and conditions of these Terms, OpenPlacement may offer to provide certain other services as described more fully on openplacement.com, and that have been selected by you, solely for your own use, and not for the use or benefit of any third party.
As a Care Recipient or an individual on behalf of a Care Recipient, through the Services you may access senior housing and care marketing and information services which provide resources and personalized assistance in finding senior housing and care for Care Recipients.
As a care provider, through the Services you may create a profile with certain content marketing your organization’s senior housing and care services and other health or medical products and services.
Depending on which Services you use, additional terms and policies presented with those Services may apply (“Additional Terms”). Those Additional Terms become a part of your agreement with us if you use those Services. For example, if you sign up to our subscription service for eldercare information services, then the Additional Terms for Eldercare Information Services will apply to you. We refer to the combination of these Terms of Service and any applicable Additional Terms collectively as these “Terms”. To the extent any conflict exists, the Additional Terms prevail over these Terms of Service with respect to the Services to which the Additional Terms apply.
In the course of using the Services you may post information or content or otherwise provide content, materials or information to OpenPlacement or in connection with the Services (collectively, “User Content”). User Content may include communications, images, sounds, videos, and all the material, data and information that you upload or transmit through the Services, or that other users upload or transmit, including without limitation, any content, questions, answers, messages, images, videos, reviews or profiles (such as care provider profile pages) that you publish or display. You retain the ownership of the User Content that you post in the Services, subject to the license to us herein.
You understand and agree that OpenPlacement may, in its sole discretion, review and delete any User Content, in each case in whole or in part, that in the sole judgment of OpenPlacement violates these Terms or which OpenPlacement determines in its sole discretion should be removed.
By posting, transmitting and providing any User Content through the Service, you agree, represent and warrant that you will comply with your obligations in these Terms of Service, including Section 8 (Restrictions).
You understand that by submitting, posting or displaying User Content on or through the Services or otherwise providing User Content to OpenPlacement or in connection with the Services, you hereby grant to OpenPlacement, its affiliates, third party partners and service providers, licensees and successors and assigns, a nonexclusive, worldwide, royaltyfree, fully paid-up, perpetual, irrevocable, sublicenseable, assignable, and transferable right to use, copy, publicly perform and display, publish, transmit, reproduce, reformat, process, adapt, excerpt, distribute, modify, remove, analyze, translate, and commercialize the User Content and prepare derivative works of the User Content (including all related intellectual property rights) as permitted through the current and future functionalities of the Services and under these Terms in any media formats and through any media channels.
You also hereby grant each user of the Services a non-exclusive, worldwide, royaltyfree, perpetual, and irrevocable license to access and use your User Content through the Services, and to use, copy, publicly perform and display, reproduce, distribute, modify, remove, analyze and prepare derivative works of the User Content as permitted through the current and future functionality of the Services and under these Terms in any media formats and through any media channels.
You warrant, represent and agree that you have the right to grant the licenses described above.
We own the content that we create and make available in connection with the Service, including but not limited to interfaces, interactive features, graphics, design, our compilation of the website content, computer code, products, software, aggregate user review ratings, and all other elements, components and content of the Service, excluding User Content and third party content (the “OP Content”). We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the OP Content and the Service, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. We do not grant you any express or implied rights, and all rights in and to the OP Content and the OP Content is and the Services are retained by us. The Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws.
You must comply with the following restrictions and requirements when using or accessing the Services and posting, transmitting and providing any User Content on the Services.
We welcome your feedback and questions about the Services. However, you agree that any comments, ideas, messages, questions, suggestions, or other communications you send to us or share with us through any channel (including, without limitation, the Services, email, telephone, surveys, and our social media accounts) shall be and remain the exclusive property of OpenPlacement and we may use all such communications, all without notice to, consent from, or compensation to you.
As a condition to using certain aspects of the Services, you may be required to register with OpenPlacement and select a password and user name (“OpenPlacement User ID”). You shall provide and maintain accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your account. You may not select or use an OpenPlacement User ID (i) that is the name of another person with the intent to impersonate that person; or (ii) that is subject to any rights of a person other than you without appropriate authorization. OpenPlacement reserves the right to refuse registration of or cancel or require you to change an OpenPlacement User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
You agree to pay to OpenPlacement all fees for each service purchased by you in accordance with the pricing and payment terms presented to you for that service. Where applicable, you will be billed or charged using the billing and charge methods you selected through your account management page or at the time of purchase. Fees paid by you are non-refundable, except as provided in these Terms or when required by law. Some of our Services are billed on a subscription basis (“Subscriptions”). This means that you will be billed or charged automatically via credit card in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you selected when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless terminated in accordance with these Terms.
OpenPlacement provides no guarantee as to the quality of any of the providers found on the Services, nor does OpenPlacement endorse any providers. We do not provide any advice regarding which providers you should use. We only provide information through the Services and do not (1) place the consumer in any senior care facility, (2) perform any medical assessment of or for the consumer or any senior care facility, or (3) participate in the consumer’s and senior care facility’s decision regarding final selection or admittance. You should only make decisions regarding service providers after consulting with them, your family members and other knowledgeable sources, based on your specific needs, and after a thorough review and investigation. OpenPlacement is not a representative of or agent for either you or any senior care provider and do not act on either’s behalf.
OPENPLACEMENT DOES NOT ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF, ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN OPENPLACEMENT.
The Services are provided for informational purpose only, and should not be interpreted to substitute for professional medical advice, diagnosis or treatment, which should only be provided by license medical professionals, or for any other professional advice. OpenPlacement makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Service. If you have specific concerns or a situation arises in which you require professional or medical advice, you should consult with an appropriately trained and qualified specialist.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, OP CONTENT, PRODUCTS AND SERVICES ACCESSED AND OBTAINED THROUGH THE SERVICES, AND ANY SOFTWARE ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY REGARDING AVAILABILITY, RELIABILITY, ACCURACY OR AUTHENTICITY.
OPINIONS, ADVICE, STATEMENTS, OFFERS, OR OTHER INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICES, BUT NOT DIRECTLY BY OPENPLACEMENT, ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND SHOULD NOT NECESSARILY BE RELIED UPON. SUCH AUTHORS ARE SOLELY RESPONSIBLE FOR SUCH CONTENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPENPLACEMENT OR ITS SUPPLIERS AND LICENSORS, OR THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THESE TERMS: (I) IN THE AGGREGATE IN EXCESS OF THE GREATER OF $100 OR THE TOTAL FEES PAID BY YOU TO OPENPLACEMENT FOR THE SERVICES DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (III) FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT ON THE SERVICES; OR (IV) OR ANY DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE'S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICE, OR TRANSMITTED TO OR BY ANY USERS OR ANY OTHER INTERACTIONS WITH OTHER USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE, INCLUDING ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU; EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Services may contain links to websites or services, including senior care providers and facilities that are maintained by third parties (“Third Party Services”). When you access Third Party Services, you do so at your own risk. OpenPlacement does not represent that it has reviewed such Third Party Services and is not responsible for such Third Party Services or any content appearing on them. In addition, your interactions with organizations and/or individuals found on or through the Services (including senior care providers and facilities), including payment and delivery of goods or services with such third parties, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You irrevocably waive any claim against us with respect to the Third Party Services, such third parties and their content. If there is a dispute between you and any of such third parties, you understand and agree that OpenPlacement is under no obligation to become involved.
These Terms shall remain in full force and effect while you use the Services.
By You. You may terminate your use of the Services at any time, except as set forth in the Additional Terms, if applicable to you.
By OpenPlacement. Company may limit, terminate, suspend or remove your access to the Services or your subscription at any time, at our discretion and without notice, which may result in the forfeiture and destruction of all information associated with your use of the Services or your subscription. Except for paid subscriptions, we reserve the right to terminate and delete your account if you have not accessed our Services for 12 consecutive months.
Effect of Termination. Upon termination of your account, your right to use and access the Services will immediately cease. All provisions of these Terms which, by their nature, should survive termination, shall survive termination, including, without limitation, the following sections of these Terms: 6 (Our Right to Use User Content), 7 (Ownership of OP Content), 11 (Fees and Payment), 12 (Indemnification), 14 (Medical Disclaimer), 15 (Disclaimer), 16 (Limitation of Liability), this paragraph, 21 (Consent to Electronic Communications) and 22 (Miscellaneous), and such similar sections in any Additional Terms.
OpenPlacement may change the Services at any time, including the availability of any feature, functionality, database, or content. OpenPlacement may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
OpenPlacement reserves the right, in its sole discretion, to modify these Terms at any time by posting a notice on the Service, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions as modified.
By creating an account with OpenPlacement, you understand that we may send you communications or data regarding the Services, including but not limited to: (a) notices about your use of the Services, including any notices concerning violations of use; (b) notices about changes to the Services or these Terms; and (c) other updates.
Waiver. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
Assignment. These Terms are not assignable, transferable or sublicensable by you except with OpenPlacement’s prior written consent. OpenPlacement may transfer, assign or delegate these Terms and its rights and obligations without your consent.
No Agency. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind OpenPlacement in any respect whatsoever.
Headings. Headings for each section have been included for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
Governing Law; Venue. These Terms shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Each party submits to the exclusive jurisdiction and venue of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California with respect to the subject matter of these Terms.
Entire Agreement. Each of the parties agrees that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.
OpenPlacement, Inc. responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify OpenPlacement’s agent for claims of copyright infringement.
Designated Agent to Receive Notification of Claimed Infringement:
Attn: DMCA Notices
220 Main Street, Suite 200
Los Altos, CA 94022
If you have any questions, complaints, or claims with respect to the Services, you may contact us at the following address:
220 Main Street, Suite 200
Los Altos, CA 94022