This Agreement constitute a legally binding agreement (the “Agreement”) between you and Nanno, Inc. (“Nanno,” “we,” “us” or “our”) governing your use of the Nanno application, website, and technology platform (collectively, the “Nanno Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND NANNO HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST NANNO 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. AS A CAREGIVER OR CAREGIVER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
Nanno enables people, organizations and other legal entities ("Clients") seeking child care services for children ("Child Care Services") to find and engage, on an independent contractor basis, qualified and experienced child care providers that have satisfied the requirements of Nanno’s onboarding process ("Caregivers" and, together with Clients and all other people, organizations and other legal entities who access the Nanno Platform and/or the Services for any reason, “Users”). Each User shall create a User account that enables access to the Nanno Platform. Each person may only create one User account, and Nanno reserves the right to shut down any additional accounts.
YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN CHILD CARE SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH NANNO AS A PROVIDER OF CHILD CARE SERVICES.
Based on information provided by Users, Nanno matches Clients with Caregivers who meet the Client’s criteria, and sends information about the time, date, and location of the needed Child Care Services (the "Booking") to all such Caregivers. Caregivers are matched with Clients on a first-to-respond basis. Nanno does not utilize discretion in screening which Caregivers are appropriate for a Client’s needs, other than applying the criteria provided by the Client. Neither Nanno nor our respective employees are making a referral to, or endorsing, any individual, company or agency nor are we providing any medical, diagnostic, treatment or clinical service or engaging in any conduct that requires a professional license.
For purposes of this Agreement, the Child Care Services provided by Caregivers to Clients that are matched through the Nanno Platform shall be referred to collectively as the “Services.” Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Child Care Service provided by a Caregiver to a Client shall constitute a separate agreement between such persons.
The Child Care Services do not include medical care of any kind, including emergency care, and no part of the Caregiver Fees or the Service Fees constitute compensation for any medical or emergency care. If an emergency occurs while a Caregiver is with a Child, neither the Caregiver nor the Company 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 Nanno, shall be entitled to the full benefit of any "Good Samaritan" laws.
ANY CHILD FOR WHICH A CLIENT USES NANNO TO ARRANGE CHILD CARE SERVICES (EACH A "CHILD") MUST BE A CHILD FOR WHOM THAT CLIENT HAS THE AUTHORITY TO ORDER CHILD CARE SERVICES, EITHER IN THAT CLIENT’S CAPACITY AS A PARENT, LEGAL GUARDIAN OR OTHER RELATIVE, OR FOR ON-SITE CHILDCARE WHERE THE CHILD’S PARENT, LEGAL GUARDIAN OR OTHER RELATIVE WILL BE PRESENT ON PREMISES AND/OR WILL GIVE AFFIRMATIVE CONSENT FOR THE PROVISION OF CARE.
Subject to your compliance with this Agreement, Nanno grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Nanno Platform on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Nanno and Nanno's licensors.
The Company may from time to time provide certain services, programs, promotions, opportunities and contests to Clients and/or Caregivers ("Nanno Programs"). Nanno may at any time in its sole discretion, change, modify, add to, supplement or delete the terms and conditions of any Nanno Program, including without limitation changing the name, fees and eligibility requirements to participate in such Nanno Program. The Company will endeavor to notify you of any material changes by email, but will not be liable for any failure to do so. In any case, the liability of any of Company’s partners pursuant to such Nanno Programs shall be limited as described in this Agreement, including but not limited to Section 14 of this Agreement.
Nanno reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Nanno Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
To be eligible to use our Services, you must meet the following criteria:
Notwithstanding the foregoing, Nanno reserves the right to restrict access to the Services to any person or persons, at any time, at our reasonable discretion.
Nanno does not employ any Caregivers. Clients are the potential employers of Caregivers and are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish (such as applicable payroll, tax and minimum wage laws).
Nanno does not have control over the quality, timing, or legality of the services actually delivered by Caregivers, nor of the responsibility or actions of Clients or Caregivers, and we neither refer or recommend Clients or Caregivers nor make any representations about the suitability, reliability, timeliness, and accuracy of the services provided by Caregivers or the responsibility or actions of Clients or Caregivers whether in public, private or offline interactions. Nanno does not provide any training or equipment to Caregivers, nor does Nanno have the right to direct and control the work performed by Caregivers or the financial and business aspects of Caregivers’ work.
As a Caregiver on the Nanno Platform, you acknowledge and agree that the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Nanno expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Nanno; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Nanno, and you undertake not to hold yourself out as an employee, agent or authorized representative of Nanno.
All Users hereby agree and acknowledge that Nanno is not responsible for ensuring compliance with federal, state or local laws regarding employment classification, overtime, workers’ compensation, income tax withholding or any other tax matters, and that all Users will indemnify and hold harmless Nanno, its employees, directors, consultants and shareholders, with respect to any all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of or relating to the foregoing.
If you are a Caregiver, you hereby expressly acknowledge and agree that you are not entitled to unemployment insurance benefits through Nanno, and that unless you have entered into an express written agreement with a Client or Clients, you are obligated to pay federal and state income tax on any moneys you receive through the Nanno Platform. You also acknowledge that providing Child Care Services through the Nanno Platform does not constitute your primary source of income, and that your work for Clients is on an informal, occasional basis.
The Company conducts a criminal background check (a "Background Check") on all Caregivers as a condition to being eligible to accept Bookings on the Nanno Platform, and in most cases on Clients as a condition to being eligible to request Bookings on the Nanno Platform. By registering for and using the Nanno Platform or Services, you hereby acknowledge and agree that the Company has the right to use a third-party consumer reporting agency on an ongoing basis to use your personal information to run periodic background checks on you for the legitimate business purpose of protecting the safety and integrity of the Nanno Platform and all Users. The Company may order these checks when you register with the Company and thereafter in connection with your continued use of our Services and/or interaction with the Nanno Platform (such as by contacting or communicating with other members, posting or updating a job or profile, ordering or authorizing a Background Check, etc.).
These Background Checks may be regulated by the Fair Credit Reporting Act ("FCRA"), and the background reports resulting from these services may be considered "consumer reports" under FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports.
You acknowledge and agree that the Company reserves the right to deny or terminate your membership based on the information contained in your Background Check, even if such information was subsequently dismissed. If the Company denies you membership on the Nanno Platform or terminates your membership or access to the Nanno Platform on the basis of information in a Background Check, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you a copy of the report upon your request, unless the consumer reporting agency has already provided you a copy or access to it. You hereby represent, understand and expressly agree that the Company does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these Background Checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it and not the Company.
BY AGREEING TO THESE TERMS AND USING OUR SITE, YOU AGREE TO ALLOW THE COMPANY TO PERFORM THESE INTERNAL BACKGROUND CHECKS FOR THE PURPOSES DESCRIBED ABOVE. IF YOU DO NOT WANT THESE INTERNAL BACKGROUND CHECKS TO BE PERFORMED, YOU SHOULD NOT USE THE SERVICE. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE CHECKS TO BE PERFORMED.
By registering for and using the Nanno Platform or Services as a User, you hereby represent, understand and expressly agree that all Background Checks are completed by a third party consumer reporting agency (not the Company), that the specific records searched, and the comprehensiveness of the search, varies by the type of Background Check ordered as well as the state and county where the check is performed, and that the checks are not always accurate or a complete compilation of a person's criminal history. In addition to legal and reporting system limitations of Background Checks, each check is performed with the consent of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If a User provides incorrect information, the check might be run with inaccurate identifying data, which can impact the validity of the criminal check. Finally, criminal records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check offered may not disclose the existence of all criminal records in all jurisdictions. Therefore, you agree to release, indemnify and hold harmless the Company from any loss, liability, injury, death, damage, or costs that may result from reliance on a Background Check regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information.
Regardless of how payment is processed, Clients contract for Child Care Services directly with the Caregiver with whom they are paired through the Nanno Platform.
In most cases, Clients will be required to provide their credit card to the Payment Service Provider retained by the Company (the "PSP"). The PSP will charge Clients’ credit cards according to the rates for Child Care Services published on the Nanno Platform and mobile application from time to time (the “Client Fee”). All published rates are inclusive of the fees paid to the Caregivers for the Child Care Services (the “Caregiver Fees”) and Nanno’s fees for usage of the Nanno Platform ("Service Fees”). Within 24 hours after completion of a Booking, the PSP will release the portion of the Client Fee for that booking that constitutes Caregiver Fees to the Caregiver and the portion that constitutes Service Fees to Nanno.
In certain situations, where processing payment through the PSP is not possible, Nanno may agree to act as payment service provider, receiving the Client Fee directly through check or credit card, distributing the Caregiver Fees through the PSP and retaining the Service Fees. In no circumstance shall any such alternative payment process constitute or imply a direct contractor relationship between Nanno and the Client.
In order to receive payment, Caregivers are required to register with the PSP, agree to Terms of Service of the PSP and go through a vetting process to set up their account with the PSP. Terms of Service between Caregivers and the PSP retained by the Company are available here: https://stripe.com/us/connect-account/legal (the "PSP Agreement"). By accepting this Agreement, each Caregiver agrees that they have downloaded or printed, and reviewed and agreed to the PSP Agreement. Please note that the Company is not a party to the PSP Agreement and that the Caregiver, the PSP and any other parties listed in the PSP Agreement (currently, Stripe) are the parties to the PSP Agreement and that the Company has no obligations or liability to any Caregiver under the PSP Agreement.
The Company reserves the right, in its sole discretion (but not the obligation), to (i) place on hold any out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so, in either case with respect to both Clients and Caregivers.
No refunds or credits will be provided once a Client’s credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made.
The Nanno Platform will be made available to you upon your registration with the Company. Without limitation, while using the Nanno Platform, neither Users nor Caregivers may:
BY USING THE SITE OR THE SERVICES, YOU AGREE TO REPORT ANY ALLEGED IMPROPRIETIES OF ANY USERS OR CAREGIVERS TO THE COMPANY IMMEDIATELY VIA ELECTRONIC CORRESPONDENCE. IN THE EVENT THAT ANY ALLEGATION OF IMPROPER CONDUCT BY ANY CAREGIVER OR USER IN VIOLATION OF THESE TERMS OR OF APPLICABLE LAW, THE COMPANY WILL IMMEDIATELY SUSPEND THE ACCOUNT OF SUCH USER OR CAREGIVER PENDING A FULL INVESTIGATION INTO SUCH ALLEGATIONS.
The Nanno Platform may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities ("Public Areas") that allow the Company, Users and Caregivers to communicate with each other. The Company, Users and Caregivers may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. You understand that all submissions made to Public Areas by Users or Caregivers ("Public Content") will be public and not confidential and that you will be publicly identified by your name or login identification when communicating in Public Areas, and the Company will not be responsible
You must register with the Company and create an account to use the Nanno Platform and use the Services. If you are a User, you may use your account only to find care for your Children for whom you are the legal guardian. If you are a Caregiver, you may use your account only to find Bookings for yourself. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or the Company for accessing the Nanno Platform. You are solely and fully responsible for all activities that occur under your password or account. The Company has no control over the use of your account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact the Company immediately.
By entering into this Agreement or using the Nano Platform, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Nanno, its affiliated companies and/or Users, may include but are not limited to: operational communications concerning your User account or use of the Nanno Platform or Services, updates concerning new and existing features on the Nanno Platform, communications concerning promotions run by us or our third-party partners, and news concerning Nanno and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL EMAIL MAY IMPACT YOUR USE OF THE NANNO PLATFORM OR THE SERVICES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS, EMAILS OR CALLS AS A CONDITION OF USING THE NANNO PLATFORM OR THE SERVICES.
You hereby grant the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in your Personal Information, excluding the Child Information, in any media now known or not currently known in order to perform and improve upon the Nanno Platform.
Caregiver content is primarily user generated, and we do not control or vet user generated content for accuracy. Nanno does not assume any responsibility for the accuracy or reliability of any information provided by Caregivers on or off the Nanno Platform.
The Company may terminate or suspend your right to use the Nanno Platform at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.
Without limitation, the Company may terminate or suspend your right to use the Nanno Platform if you breach any term of this Agreement or any policy of the Company posted through the Nanno Platform from time to time, or if the Company otherwise finds that you have engaged in inappropriate and/or offensive behavior. If the Company terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, the Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Should the Company find that you violated these Terms, the Company reserves the right, at its sole discretion, to immediately terminate your use of the Nanno Platform and Services. By using the Nanno Platform and/or Services, you agree that the Company may assess, and you will be obligated to pay, $10,000 per each day that you: (i) maintain User, Caregiver or Child information (including but not limited to, names, addresses, phone numbers, or email addresses) or copyrighted material that you scraped (either directly or indirectly in a manual or automatic manner) from the Nanno Platform, or (ii) otherwise mis-use or mis-appropriate Nanno Platform content, including but not limited to, use on a "mirrored", competitive, or third party site. This obligation shall be in addition to any other rights the Company may have under these Terms or applicable law. Further, in order to protect the integrity of the Nanno Platform and the Services, the Company reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Nanno Platform.
Even after your right to use the Nanno Platform is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all use of the Nanno Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Links (such as hyperlinks) from the Nanno Platform to other sites on the Web do not constitute the endorsement by the Company of those sites or their content. Such links are provided as an information service, for reference and convenience only. The Company does not control any such sites, and is not responsible for their content. The existence of links on the Nanno Platform to such websites (including without limitation external websites that are framed by the Nanno Platform as well as any advertisements displayed in connection therewith) does not mean that the Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the Nanno Platform, you may link your account with online accounts you may have with third party service providers (each such account, a "Third Party Account") by either: (i) providing your Third Party Account login information through the Nanno Platform; or (ii) allowing the Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to the Company and/or grant the Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating the Company to pay any fees or making the Company subject to any usage limitations imposed by such third party service providers. By granting the Company access to any Third Party Accounts, you understand that (i) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Nanno Platform via your account, including without limitation any friend lists, and (ii) the Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered Personal Information for all purposes of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Nanno Platform. Please note that if a Third Party Account or associated service becomes unavailable or the Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Nanno Platform. You will have the ability to disable the connection between your account on the Nanno Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. The Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and the Company is not responsible for any SNS Content. You acknowledge and agree that the Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Nanno Platform. At your request made via e-mail to firstname.lastname@example.org, the Company will deactivate the connection between the Nanno Platform and your Third Party Account and delete any information stored on the Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively "Proprietary Material") that Users see or read through the Nanno Platform is owned by the Company, excluding Personal Information that the Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. The Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Nanno Platform without the Company's express prior written consent and, if applicable, the holder of the rights to the Personal Information. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of the Company and, if applicable, the holder of the rights to the Personal Information.
The service marks and trademarks of the Company, including without limitation the Company and the Company logos, are service marks and trademarks owned by the Company. Any other trademarks, service marks, logos and/or trade names appearing via the Nanno Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
The Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Nanno Platform infringe upon your copyright or other intellectual property right, please send the following information to the Company's Copyright Agent at: Nanno, Inc., 1615 California Street, Suite 310, Denver, CO 80202 or email@example.com.
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR CAREGIVER. ANY SCREENING OF A CAREGIVER AND HIS, HER OR ITS INFORMATION BY NANNO IS LIMITED AND SHOULD NOT BE TAKEN AS COMPLETE, ACCURATE, UP-TO-DATE OR CONCLUSIVE OF THE INDIVIDUAL'S OR ENTITY'S SUITABILITY AS A CARE PROVIDER.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
Nanno is not responsible for the conduct, whether online or offline, of any User, Caregiver or other user of the Nanno Platform or Services. Moreover, Nanno does not assume and expressly disclaims any liability that may result from the use of information provided on the Nanno Platform. All users, including both Users and Caregivers, hereby expressly agree not to hold Nanno (or Nanno's officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers, hereinafter "Affiliates") liable for the actions or inactions of any User, Caregiver or other third party or for any information, instruction, advice or services which originated through the Nanno Platform, and, to the maximum extent permissible under applicable law, Nanno and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, "LIABILITIES") THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER OR CAREGIVER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER OR CAREGIVER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SERVICE.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless the Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the Nanno Platform, or (ii) any content submitted by you or using your account to the Nanno Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of the Company.
(a) Agreement to Binding Arbitration Between You and Nanno
YOU AND NANNO 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 Nanno 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 (defined below) between you and Nanno, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Nanno’s partners and service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND NANNO. These 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 and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Nanno Platform, the Services, any other goods or services made available through the Nanno Platform, your relationship with Nanno, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, background checks performed by or on Nanno’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Nanno, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Nanno and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND NANNO ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND NANNO 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 NANNO BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST NANNO, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, 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: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought 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.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Nanno agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Nanno agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“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) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper 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.
As part of the arbitration, both you and Nanno will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
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 Clients or Caregivers, but is bound by rulings in prior arbitrations involving the same Client or Caregiver 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.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (k) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Nanno agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Nanno, Nanno will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If Nanno initiates arbitration under this Arbitration Agreement, Nanno will pay all AAA filing and arbitration fees.
With respect to any Claims brought by Nanno against a Caregiver, or for Claims brought by a Caregiver against Nanno that: (A) are based on an alleged employment relationship between Nanno and a Caregiver; (B) arise out of, or relate to, Nanno’s actual deactivation of a Caregiver’s User account or a threat by Nanno to deactivate a Caregiver’s User account; (C) arise out of, or relate to, Nanno’s actual termination of a Caregiver’s Agreement with Nanno under the termination provisions of this Agreement, or a threat by Nanno to terminate a Caregiver’s Agreement; (D) arise out of, or relate to, Fares (as defined in this Agreement, including Nanno’s commission or fees on the Fares), tips, or average hourly guarantees owed by Nanno to Caregivers for Services, other than disputes relating to referral bonuses, other Nanno promotions, or consumer-type disputes, or (E) arise out of or relate to background checks performed in connection with a user seeking to become a Caregiver (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Caregiver Claims”), Nanno shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Nanno pursuant to the fee provisions above). However, if you are the party initiating the Caregiver Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 17(e)(3), the term “Caregiver” shall be deemed to include both Caregivers and Caregiver applicants who have not been approved to work.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws Nanno may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Nanno agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of Nanno’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (k) below, then Nanno will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and Nanno agree otherwise, any arbitration hearings between Nanno and a Client will take place in the county of your billing address, and any arbitration hearings between Nanno and a Caregiver will take place in the county in which the Caregiver provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Nanno agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Nanno may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Nanno. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You and the Company agree that if any portion of Section 16 entitled "Dispute Resolution" is found illegal or unenforceable, that portion will be severed and the remainder of the section will be given full force and effect. Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Colorado, without regard to choice of law principles.
The Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of the Company, and can be activated, modified or removed at any time by the Company without advance notification and the liability of any of the Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to this Agreement, including but not limited to Section 14 of this Agreement.
Failure by the Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right, will be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules. This Agreement constitutes the entire agreement between you and the Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement will inure to the benefit of the Company, its successors and assigns.