Updated as of April 9, 2017
These terms and conditions are part of the Pillar Care Service Agreement between you and Optus Americas, Inc. (“Pillar”), legally represented by “Creative Medical SDN BHD,” in Malaysia, together with any service order or service agreement that you sign are referred to as the “Agreement.” Hence, you are contracting with Creative Medical SDN BHD while the service is known as “Pillar.” Pillar provides non-medical services in the home (the “Services”). Pillar’s technology, including its website, all Pillar apps, are referred to as the “Platform” and are considered part of the Services.
You acknowledge that the Services are not a medical service or advice and are not intended to replace or substitute for any professional or medical advice. Any information provided as part of the Services may not be relied on as medical advice, and you should consult with an appropriately trained professional or medical provider for all concerns that require professional or medical advice. In the course of providing services, Pillar collects certain information about the care recipient and, as part of the service, transmits that information to you and others (for example, information about meals, sleep, mood, etc.). All information is collected and transmitted for your convenience only, and Pillar is not responsible for taking action on any information that Pillar collects or observes.
This Agreement is between Pillar and you, on behalf of yourself and, if different, a care recipient (“Recipient”). You represent and warrant that (a) you and the Recipient (if not yourself) are at least the age of legal majority in your jurisdiction; and (b) if the Recipient is someone other than yourself, you have the full power and authority to bind that person to this Agreement. In that case that person shall also be bound by this Agreement, and every reference in this Agreement to “you” and “your” shall also include the Recipient. You will provide Pillar with evidence of any such authority upon request and will indemnify Pillar against any claims based on your lack of authority.
Pillar may modify the Agreement, including the rates it charges you, by sending notice as set forth in Section 19. If you do not want to be bound by the modified terms, then you must stop using the Services. Because our Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion. Any changes will be effective 48 hours after the time it is deemed to be given under the terms of Section 19, or such later date specified in the notice.
You agree to keep a current credit or debit card on file with Pillar at all times unless all parties agree otherwise. You agree to pay Pillar for any transactions made in connection with your account (“Service Fees”). We will charge your credit or debit card according to the agreed rates for Services, as modified from time to time. Any changes in rates will be communicated to you in accordance with these Terms and Conditions. All Service Fees are due immediately upon completion of the scheduled appointment and you hereby authorize Pillar to charge the card on file following completion. We retain the right to place a hold on your credit card for an ordered or completed appointment. In addition, you agree that Pillar may charge your payment method for verification and pre-authorization purposes and you agree to bear any additional charges that your bank or other financial service provider may levy on you. We will use third party services to process credit card information.
You acknowledge that Pillar has invested significant resources in recruiting and training caregivers. In the event that you hire any caregiver that has been employed by Pillar or its partners within the past twelve (12) months, you will pay Pillar a placement fee equal to RM12,000. You acknowledge that this is a reasonable representation of damages suffered by Pillar. If you hire a caregiver directly neither you nor the caregiver will be covered by any insurance or liability protection that may be provided by Pillar or its partners. and you will assume responsibility for all taxes, insurance, overtime and other requirements. Pillar may also terminate its Agreement with you immediately.
You may cancel any appointment for Care Services by calling Pillar at +60-17-805-9677 no later than 24 hours prior to the scheduled appointment. You authorize us to charge your credit card for any scheduled appointments that you do not cancel in accordance with this paragraph, including if the caregiver is unable to deliver the services due to the unavailability of or refusal by the Recipient. Certain discounted or promotional rates may be subject to additional restrictions and penalties for cancellation, which will be outlined in connection with the discount or promotion.
If a caregiver is unable to make any scheduled appointment and Pillar receives sufficient advance notification, Pillar will make will make every reasonable effort to find a replacement in sufficient time, and if no replacement is available, you will not be charged for the appointment. Pillar shall not otherwise be responsible for any inability to provide a substitute caregiver.
From time to time, you may be offered discounted or promotional rates (in an amount subject to Pillar’s sole discretion), which will be subject to any additional terms outlined in connection with such discount or promotion. Discounts and promotions may not be combined with any other offer.
If you elect to have the caregiver provide transportation in the Recipient’s car, you will be responsible for all necessary insurance to cover any accidents or liability that may occur. If you elect to be transported in the caregiver’s car, you understand that the Recipient will ride in the caregiver’s personal car as a passenger of the caregiver. Pillar expressly disclaims, and you hereby expressly release Pillar from, any responsibility or liability for any damages resulting from your use of transportation services from a caregiver. Mileage will be charged for transportation in the caregiver car at then-current rates.
Pillar does not designate any portion of your payment as a tip or gratuity to the caregiver. While you are free to provide additional payment as a gratuity to any caregiver, you are under no obligation to do so. You are responsible for determining whether any gratuity is reportable to any taxing authority and for making such report or paying any applicable taxes.
Whenever you or the Recipient is asked to provide ratings of the caregiver, you agree that all ratings will represent the independent, honest and genuine opinion of the person providing the rating.
The Services do not include medical care of any kind, including emergency care, and no part of the Service Fees constitute compensation for any medical or emergency care. If an emergency occurs while a caregiver is with a Recipient, neither the caregiver nor Pillar 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, Pillar, shall be entitled to the full benefit of any “Good Samaritan” laws.
You are responsible for providing a safe and secure working environment for the caregiver, and for obtaining all necessary insurance relevant to your home and your automobile. If a caregiver detects violence or abuse affecting the Recipient, the caregiver may be required by law to report that abuse to law enforcement.
You consent to the receipt by both you and the Recipient of calls to your phone and mobile phone and text (SMS) messages from both Pillar and the caregivers who are providing Care Services to the Recipient. Standard voice and data charges from your phone carrier may apply to these calls and texts. You may also receive email communications from Pillar or caregivers, including information about the Recipient, about the services, newsletters, special offers, and account reminders and updates. You can remove yourself from communications that are not related to the delivery of services by following the instructions in the email. If you do not want to receive communication of sensitive or confidential information by email, please notify us at firstname.lastname@example.org.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” 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. Pillar MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE (I) REGARDING THE RELIABILITY, TIMELINESS, SAFETY, SUITABILITY, OR AVAILABILITY OF THE SERVICE, OR (II) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS. PILLAR SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, COST OF SUBSTITUTE SERVICES, PERSONAL INJURY, OR PROPERTY LOSS OR DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE. Pillar SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND PILLAR’S REASONABLE CONTROL. IN NO EVENT SHALL PILLAR’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO PILLAR FOR SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM OR ACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PILLAR AND YOU. You agree to indemnify and hold Pillar and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with your use of the Service, your lack of authority to bind the Recipient to this Agreement, the breach or violation of any of this Agreement, or your violation of the rights of any third party, including any caregiver.
This Agreement and any action related thereto will be governed by the laws of the Country of Malaysia without regard to its conflict of laws provisions.
Pillar believes that arbitration represents the best way to resolve disputes and accordingly requires that all disputes be resolved by arbitration in accordance with the attached Agreement to Arbitrate, which constitutes a part of this Agreement.
Pillar may give notice by means of a general notice on the Platform, electronic mail to your email address in your account, or by written communication sent by first class mail or pre-paid post to your address in your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Pillar, with such notice deemed given when received by Pillar, at any time by first class mail or pre-paid post to Pillar / Creative Medical, No 59-02, The Boulevard, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur, Malaysia, or upon receipt when sent by email to Pillar at email@example.com.
Pillar may assign this Agreement without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Pillar’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Pillar’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Pillar in writing.
You and Pillar agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court. You acknowledge and agree that you and Pillar are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Pillar otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Agreement to Arbitrate” will be deemed void. Except as provided in the preceding sentence, this “Agreement to Arbitrate” will survive any termination of this Agreement.
The arbitration will be administered by the Malaysian Institute of Arbitrators (MIArb) in accordance with their rules, except as modified by this “Dispute Resolution” section. MIArb information is available at http://www.miarb.com/index.php.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified by MIArb. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the MIArb’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the MIArb will appoint the arbitrator in accordance with the MIArb Rules.
Unless you and Pillar otherwise agree, the arbitration will be conducted in the state where you reside. If your claim does not exceed RMD 44,000, then the arbitration will be conducted solely on the basis of the documents that you and Pillar submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds RMD 44,000, your right to a hearing will be determined by the MIArb Rules. Subject to the MIArb Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the MIArb Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Pillar will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any MIArb filing, administrative and arbitrator fees will be solely as set forth in the MIArb Rules. However, if your claim for damages does not exceed RM 332,,000, Pillar will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose.
Notwithstanding anything else in this Agreement, if Pillar changes this “Agreement to Arbitrate” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Pillar’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Pillar in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
If you don’t want to settle Disputes by arbitration as described above, you will notify Pillar by sending us an email to email@example.com telling us that you don’t want to use arbitration, within thirty (30) days of the date on which you agreed to this Agreement, and consequently you agree that all Disputes will be resolved exclusively by a court located in Kuala Lumpur, Malaysia.