1.1 The AlayaMarket solution
In these Terms of Participation and the relationship of the parties generally, AlayaMarket refers to the commercial offering by which home care and home health service providers supply and/or access [home care] services from care workers who are employed or engaged by other participants in AlayaMarket. Details of AlayaMarket, including the technical methods by which Partner service requirements and availability, along with associated information and data will shared, is set out in more detail at www.alayacare.com/alayamarket.
1.2 Glossary and definitions
|Client Data||All data and information provided by or on behalf of a Participant to AlayaCare or to another Participant via AlayaMarket.|
|Demand Participant||A homecare agency that sends a request for a referral/services of a care worker to Supply Participants via AlayaMarket.|
|Supply Participant||A homecare agency that accepts a referral to provide the services of one of its care workers to a Demand Participants via AlayaMarket.|
|AlayaMarket Partner||An AlayaMarket participant that is not a homecare or home infusion agency, or providing ancillary services that complement the core offering from AlayaMarket.|
|Funders / Payors||A person or organization that provides compensation to a Demand Participant.|
|Software / Solution
||Means the software, including features, functions, UI and interfaces, along with all related services (and any updated or upgrades to any of them) that create and support AlayaMarket.|
1.3 AlayaMarket infrastructure & hosting
AlayaMarket will be hosted, maintained and supported by AlayaCare. Beyond this, each party shall be solely responsible for hosting, maintaining and supporting its respective products and services and all associated infrastructure requirements, including those required by Partner in order to access, use, pay, schedule, etc. from AlayaMarket.
1.4 Registration and account setup
Provide organization details to AlayaCare to initiate registration. The activation code will be sent to the User’s registered email. For AlayaCare Customers, access to AlayaMarket is governed by existing AlayaCare account access in addition to an AlayaMarket account that is registered and created outside of either of these applications. If not otherwise specified, AlayaMarket agency name & contact information will be gathered from existing contract details to provision AlayaMarket account. For Partners and other organizations, see Partner onboarding document.
2.1 No other fees
Other than as set alayacare.com/alayamarket and in the Terms of Participation for AlayaMarket, which Partner shall independently review and, at its discretion, approve, neither party shall be liable to the other party for any other fees or payments, including capital contributions, reimbursements of expenses, revenue sharing or other financial obligation in connection with AlayaMarket and the activities set out in this Agreement. Nothing in these Terms of Participation shall constitute a joint venture, legal partnership or any other expense or profit-sharing arrangement.
2.2 Existing reimbursement models
The parties acknowledge and agree that any applicable Payor/Funder reimbursement for services rendered through AlayaMarket will not be altered as a result of participation in AlayaMarket. Demand Participants will continue to maintain and bear sole responsibility for their relationships with Payors and will be reimbursed in accordance with the contractual obligation between them. Upon completion of any care services provided via AlayaMarket, funds will be transferred from AlayaMarket holding accounts to Supply Participants, net of the AlayaMarket Fees set out here www.alayacare.com/alayamarket.
Additionally, by using the AlayaMarket platform, each Participant acknowledges and agrees that internet and data transmissions are never completely private or secure and that information conveyed or transmitted via AlayaMarket has a risk of being read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
3.1 Security and data protection
Each Participant shall at all times comply with all data protection and privacy laws and regulations in all jurisdictions that are applicable to their respective processing of data exchanged by AlayaMarket.
Each Participant acknowledges and agrees that it will be required to cooperate in connection with its respective implementation of security measures reasonably adequate to preserve the confidentiality, security and privacy of all Client Data. If one or more transactions facilitated by AlayaMarket requires the provision by one Participant to another of Client Data that comprises personal (or protected) health information (“PHI”) under applicable law, then such Participants agree to enter into such legal agreements or directives to ensure compliance with privacy laws in the relevant jurisdiction governing the processing, use, disclosure and security of such PHI. In the event that a Participant fails to comply with a counterparty’s reasonable security and privacy requirements, then AlayaCare shall be entitled to suspend such Participants right to effect transactions in AlayaMarket until such security or privacy issue is resolved to AlayaCare’s reasonable satisfaction.
3.2 Intellectual property rights
Each Participant acknowledges that all intellectual property rights in AlayaMarket and the Software and in all content, information and material made available to it via AlayaMarket, wherever in the world such rights arise, belong to AlayaCare, that these rights are licensed (not sold) to each Participant, and that no Participant has any ownership rights in or to AlayaMarket, the Software, content, information or material other than the right to use each of them in accordance with these Terms of Participation. No Participant has any right to AlayaMarket or its associated software in source-code form.
Participant acknowledges that AlayaMarket has not been developed to meet its individual requirements, and that it is therefore each Participant’s responsibility to ensure that the facilities and functions of AlayaMarket meet its requirements. Participant’s use of AlayaMarket and the Software is entirely at its own risk. Under no circumstance will AlayaCare, nor its agents, licensors or suppliers be liable to a Participant on account of its use or misuse of, or reliance on, AlayaMarket or the Software.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OF ALAYACARE OR ITS AGENTS, LICENSORS OR SUPPLIERS), WILL ALAYACARE NOR ITS AGENTS, LICENSORS NOR SUPPLIERS BE LIABLE TO PARTICIPANT FOR ANY ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE ALAYAMARKET, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR HAVE LEGISLATION WHICH RESTRICTS THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO CERTAIN PARTICIPANTS. IN NO EVENT WILL THE TOTAL LIABILITY OF ALAYACARE, ITS AGENTS, LICENSORS OR SUPPLIERS FOR ALL DAMAGES EXCEED US$10,000.
This Agreement shall be effective for a term commencing on the Effective Date and continuing for a period of three (3) years (the “Initial Term”). After the Initial Term, this Agreement shall automatically renew for successive one (1) year periods unless sooner terminated in accordance with this Section 6.
Either party may terminate this Agreement without cause or penalty at any time by giving the other party written notice three (3) months in advance of the desired effective date of termination.
5.3 Effect of termination
Upon termination of this Agreement for any reason: (i) the Parties shall continue to provide and support services booked and committed in AlayaMarket for three (3) additional months from the effective date of termination (the “Transition Period”) in order to provide AlayaMarket participants with the opportunity to source other supply or demand, as applicable; and (ii) each party shall return to the other or destroy, as applicable, all respective Confidential Information and Intellectual Property of the other party.
All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the tenth business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notice of an indemnifiable claim).
Each Participant covenants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement, except for any reasonable gifts and entertainment provided in the ordinary course of business.
6.3 Governing law
These Terms of Participation shall be deemed to be made in the State of Delaware, for U.S. Participants and in the Province of Ontario, Canada, for Canadian Participants. They shall in all respects be interpreted, construed and governed by and in accordance with the applicable jurisdiction to contracts executed and to be wholly performed therein, and without regard to its conflicts of laws principles. Each Participant irrevocably submits to the jurisdiction of the state, provincial and/or federal courts of its country of residence and any action or proceeding arising out of the Terms of Participant will be heard and determined in such courts. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
6.4 Non-solicitation of client or care workers
You agree that for so long as you participate in AlayaMarket and for twelve (12) months after, you will not directly or indirectly solicit, encourage or otherwise engage the Services of any care worker who provides care services under AlayaMarket on behalf of a Supplier (Agency). You further agree not to intentionally interfere with the relationship of a care worker and their associated Supplier (Agency) or endeavour to entice away a care worker from their associated Supplier (Agency). Violation will result in immediate termination from participating in AlayaMarket.
AlayaCare will maintain its professional services, errors and omissions and cyber-liability insurance policies in connection with its provision of the Software. Each Participant will at all times be responsible to maintain insurance coverage (including medical malpractice coverage) with limits commercially reasonable in connection with its provision of home health care services to Clients via AlayaMarket.
Participants must acquire and maintain all relevant licensures, and/or certifications required to participate or provide homecare or home health services. Participants agree to maintain accurate records of their employees or contractors who are relevant to participation in AlayaMarket. Participant agrees to indemnify, defend, and hold harmless AlayaCare and its employees from and against any claims, losses, costs, fees, liabilities, damages, or such injuries arising out of Participant’s failure to obtain licensures and/or certifications.
6.7 Code of conduct
Participants agree to abide by the AlayaMarket Code of Conduct, which at its sole discretion AlayaCare may update or change. Participants in AlayaMarket will be notified if/when changes will be made to the Code of Conduct to allow participants time to adjust operational processes to remain compliant.