Last Updated: May 15, 2025
CLIENT TERMS OF SERVICE
- These Client Terms of Service ("Client TOS") are made and entered by and between you, the entity you represent, and ShiftKey, LLC ("ShiftKey"). Each User, as defined herein, agrees to the terms of these Client TOS upon (a) Client's signing a duly executed Service Agreement, which it executes on behalf of itself and any of its Users, or (b) such User's use of the ShiftKey Services. As used herein, "you" refers to the User accessing the Platform, the Client or applicable Facility that authorized the User, and each of the Facilities set forth in the Client's Service Agreement. These Client TOS are organized as follows:
1. HOW THIS AGREEMENT WORKS
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1.1.
Service Agreement. These Client TOS are incorporated into each duly executed Service Agreement between you and ShiftKey. If you have not signed a Service Agreement, please contact help@shiftkey.com and cease using the Services. In the event of any conflict between the Service Agreement and these Client TOS, the terms of the Service Agreement shall govern. A Service Agreement may set forth the terms for more than one facility under your control but a User should not use the Service for any facility that is not explicitly set forth in a Service Agreement. In the event you use the Service or Platform for the benefit of a facility that is not explicitly set forth in a Service Agreement, you hereby agree that such facility is bound by these Client TOS at the highest Fee set forth in the executed Service Agreement with the Client.
1.2.Changes to this Agreement. We reserve the right to modify these Client TOS from time to time and we will notify you of such changes by posting the updated terms on the Platform or via email. Updated versions of these Client TOS will never apply retroactively and the updated Client TOS will give the exact date it goes into effect. Your continued access or use of the Platform or Services following the effective date of any changes to these Client TOS means you accept those new terms by clicking "accept" or something similar when prompted or by continuing to use the Platform after the effective date . For the avoidance of doubt, any Shift will be governed by the version of these Client TOS effective as of the date the Shift was accepted by both the Professional and Facility unless such changes are mandated by Laws and placed into effect at the time of notification by ShiftKey.
1.3.Updates. Periodically, ShiftKey may incorporate product updates and new releases with respect to the Platform or Services. All such updates and releases shall be governed by this Agreement unless such update or new release is accompanied by a separate agreement in which case the terms of that agreement will govern.
1.4.Privacy Policy Community Guidelines. Your use of the Platform and the Services are also governed by the ShiftKey Privacy Policy, as amended from time to time, located at https://app.shiftkey.com/privacy-policy-clients
2. SETTING UP YOUR ACCOUNT & OPERATING THE PLATFORM
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2.1.
Registration and Eligibility to Use the Services.
2.1.1.By accessing the Platform, you represent that you have the legal authority to bind the Client set forth in the Service Agreement. If you do not have such authority, lose the authority, or if you do not agree with the terms of this Agreement, you may not access or use the Platform or Services. ShiftKey is not liable for any loss or damage resulting from its reliance on any instruction, notice, document, or communication reasonably believed by us to be genuine and originating from an authorized representative of your Facility, including any activity on an Account that is accessed with the User ID and password. If there is reasonable doubt about the authenticity of any such instruction, notice, document, or communication, we may, but are not obliged to, require additional authentication from you.
2.1.2.To utilize all the features of the Platform, a Client or its delegate is required to create a User Account and select a User ID and password. Failure to provide accurate, complete, and updated registration information to create, access, and use your User Account may result in immediate termination or deactivation of your User Account. The initial User will be given full permissions and may create other User Accounts, delegate permissions, and otherwise customize your User Accounts, each of which will be deemed a User.
2.1.3.Notwithstanding anything to the contrary in this Agreement, by designating a User, the Client is authorizing such person to access and use the Platform and Services in order to request, accept, and approve Shifts and that the Client is bound by any and all actions taken or activity conducted by User Accounts that access the Platform with apparent authority. If the Client wishes to replace its designated contact for any reason, the Client shall promptly notify ShiftKey by written notice. The Client is solely responsible for activity that occurs on or through your User Account.
2.1.4.You agree to never use the ShiftKey account of another person, even another User of your Facility. If you discover any unauthorized use of your ShiftKey account, or other known account-related security breach, you must report it to help@shiftkey.com immediately.
2.1.5.By creating an Account, each User affirms that the holder of such Account is at least 18 years old and is fully able and competent to enter into, and comply with, this Agreement. Additionally, each User must (a) reside in the United States, but not in the Excluded States, or any of its territories or possessions, (b) have not been previously suspended or removed from the Platform, or engaged in any activity that could result in suspension or removal from the Platform, (c) not have more than one Account, and (d) have full power and authority to enter into this Agreement and in so doing will not violate any other agreement to which you are a party.
2.1.6.ShiftKey may, in its sole discretion, refuse to offer the Services to any person or entity, close or suspend any Account, and change its eligibility criteria at any time, for any lawful reason or no reason at all.
2.1.7.ShiftKey is not liable for any loss or damage arising from or connected to your failure to comply with this section. Regardless of whether you create a User Account, you are still subject to the terms and conditions set forth in this Agreement covering your access and use of the Platform and Services.
2.2.Your Use of the Platform and Services. You may use the Platform and Services only for lawful purposes and in accordance with this Agreement. Without limiting the generality of the foregoing, you agree not to use the Platform and/or Services:
2.2.1.In any way that violates any applicable federal, state, local, or international law, ordinance, rule or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries).
2.2.2.For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
2.2.3.To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the content standards set forth in Section 4.3 of this Agreement.
2.2.4.To transmit, or procure the sending of, any advertising or promotional material without ShiftKey's prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
2.2.5.To impersonate or attempt to impersonate ShiftKey, a ShiftKey employee, another User, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
2.2.6.To engage in any other conduct that reasonably restricts or inhibits anyone's use or enjoyment of the Platform and/or Services, or which, as determined by us, may harm ShiftKey or other Users, or expose them to liability or that could damage, disable, overburden or impair the functioning of our Platform or Services in any manner.
2.2.7.Reverse engineer any aspect of our Platform or Services or other services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Platform or Services.
2.2.8.Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Platform or Services that you are not authorized to access.
2.2.9.Develop or use any third-party applications that interact with our Platform or Services without our prior written consent, including any scripts designed to scrape or extract data from our Platform or Services.
2.2.10.To extract data from the Platform via an automated process, such as a bot or webcrawler.
2.2.11.In violation of the Community Guidelines, available at https://www.shiftkey.com/community-guidelines .
2.3.Admin Assist.
2.3.1.The Admin Assist feature, if enabled by a User, automatically accepts a Professional's request to complete a Shift on behalf of the Facility that posted the Shift, according to the Facility's configuration of the Admin Assist functionality within the Platform. A Shift filled through Admin Assist is subject to all other terms in these Client TOS.
2.3.2.The Admin Assist feature is optional and is available on the Platform at Client's sole discretion. To activate, deactivate, or configure the Admin Assist feature, contact your account manager. Upon activation, the Admin Assist feature will be applied to all listed Shifts then-available and all Shifts that become available by Client until disabled by Client. Notwithstanding the foregoing, ShiftKey does not guarantee the availability of Professionals for any Shifts.
2.3.3.By activating and using the Admin Assist feature, Client hereby releases and will hold harmless ShiftKey from any liability associated with the Admin Assist feature. The Client remains responsible for the selection of the Professional for each Shift and, subject to this Agreement, may cancel a scheduled Shift. Admin Assist is a technology feature of the Platform that a Client may use based on the Client's configuration and does not represent ShiftKey's recommendation or selection of a Professional.
3. ROLES & RESPONSIBILITIES: SHIFTKEY, YOU, AND THE PROFESSIONALS
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3.1.
ShiftKey Services.
3.1.1.ShiftKey is a technology company that, subject to [Section 5.4.6], provides the Platform through the internet and mobile applications for the use of third parties to connect and be able to contract with one another, if they so choose, under the terms set forth on the Platform and agreed by the Facility and the Professional.
3.1.2.ShiftKey provides support to Clients, Facilities, and Users in their use of the Platform and Services, but ShiftKey does not provide staffing services, does not guarantee that any Shift posted to the Platform will be filled, or guarantee the Professionals will complete healthcare services to any standard or at all.
3.1.3.ShiftKey's Platform facilitates collection, proof, and verification of certain credentials of Professional, set forth in the Service Agreement, which are viewable to a User after a Professional has requested a Shift.
3.1.4.ShiftKey's Services include collecting payments from a Facility on behalf of and as the agent of the Professional and then delivering the payment to the Professionals for a completed Shift, less ShiftKey's own fees.
3.1.5.The Platform enables a Facility, through its Users, to utilize the Services, including to request, accept, approve, and receive healthcare services from an authorized Professional. Unless expressly provided otherwise in this Agreement, all requests, approvals, confirmations, and cancellations for the provision of health care services by the Professionals are done so only through the Platform.
3.1.6.ShiftKey, through the Platform, offers functionally that enables a Facility to enter into agreements with Professionals.
3.1.7.ShiftKey and its affiliates do not screen or otherwise evaluate Professionals except as expressly set forth herein or in a Service Agreement. ShiftKey does not recommend or assign Professionals.
3.1.8.ShiftKey does not discriminate on what Users or Professionals may use the Services on the basis of sex, color, race, national origin, religion, gender, gender identity, marital status, age, or sexual orientation.
3.2.Client Responsibilities.
3.2.1.Client will comply with all applicable laws and regulations in its use of the Services and its actions with Professionals during a Shift.
3.2.2.If the Client elects to do so, it is the Client's responsibility to have any Professional execute a business associate agreement prior to the Professional's first Shift at Client. The Client may elect to use the Platform functionality that enables it to enter into agreements with Professionals that bid on Shifts at the Facility.
3.2.3.Client will, and will cause its Users, employees, officers, directors, managers, contractors, consultants to comply with the terms and conditions of the Services Agreement, this Agreement and the Privacy Policy.
3.2.4.During the Term of the Agreement and for a period of one (1) year thereafter, Client shall procure and maintain (i) commercial general liability insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 aggregate, including coverage for bodily injury, property damage, products and completed operations, and contractual liability, and (ii) medical malpractice insurance covering all of the Client's acts, errors and omissions, including contributory acts, errors, and omissions, of no less than $1,000,000 per occurrence and $3,000,000 aggregate. Client shall obtain an extended reporting period or "tail" of two (2) years for any "claims made" policy not renewed or replaced shall have an extended reporting period or "tail" of two (2) years.
3.3.Professionals' Responsibilities. All Professionals registered on the Platform who seek to bid on, request, accept, or fulfill Shifts:
3.3.1.are required to obtain and maintain at all times a professional liability or medical malpractice insurance policy with limits of $1,000,000.00 per claim and $3,000,000.00 aggregate;
3.3.2.are required to maintain Occupational Accident Insurance coverage with limits of $1,000,000 and $2,000,000 aggregate;
3.3.3.are required to maintain and keep current appropriate minimum credentials, licenses and/or certifications to provide the applicable healthcare services during a Shift, or otherwise practice their respective disciplines, in accordance with any applicable Laws governing such healthcare services in the city and state in which the Professional bids on, requests, accepts, or fulfills any Shift;
3.3.4.are required to lawfully reside and offer their services within the United States, other than the Excluded States;
3.3.5.have represented and warranted that they are able to provide healthcare services to the Client in a manner acceptable under current professional standards and applicable federal, state, and local Laws;
3.3.6.are required to comply with the Privacy Policy and otherwise maintain the confidential nature of patient health information and the Client's proprietary business information at all times in accordance with governing Law.
3.4.Professionals' Responsibilities.
3.4.1.Your use of the Services to request, accept, or receive healthcare services from a Professional during a Shift creates a direct business relationship between the Facility and the applicable Professional. ShiftKey is not responsible or liable for the actions or inactions of Professional, the Facility or any of their affiliates, officers, directors, managers, employees, agents, or patients in relation to you or your activities at the Facility's location, in connection with the Professional's fulfillment of any Shift, or otherwise. Facility and the applicable Professional shall have the sole responsibility for any obligations or liabilities to Facilities, the Professional, or third parties that arise from the Professional's provision of healthcare services in fulfillment of a Shift for such Facility.
3.4.2.Facility is solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance and licensing that meets the requirements of all applicable laws and Facility standards, practices, policies, and procedures) regarding any acts or omissions by the Facility, the applicable Professional during a Shift, or a third party. Unless specifically consented to by the Professional and Facility, Professional may not perform any additional healthcare services during a scheduled Shift, other than the healthcare services identified by the Facility for the applicable Shift when Facility accepted or approved the Professional's fulfillment of such Shift, unless the additional healthcare services are in response to an emergency and are necessary to prevent harm or further damage.
3.4.3.The Facility and the Professional are, and shall at all times, be acting in the capacity of independent contractors and are each independent contractors with, and not partners, agents, employer, or employees of each other. ShiftKey and Facility both expressly agree that no work, act, commission or omission by ShiftKey or any Professional, shall be construed to make or render ShiftKey, or any Professional, an agent, employee, or partner of the Facility and nothing herein shall authorize any party to act as agent for another, except to the extent herein provided.
3.5.Professionals Relationship with ShiftKey.
3.5.1.ShiftKey is not an employer to the Professionals, and is not affiliated with any of the independent contractor health care professionals or the healthcare Facilities. ShiftKey does not hire the Professionals and the Professionals are not employed by ShiftKey. Notwithstanding anything to the contrary herein, ShiftKey assumes no responsibility for any act or omission of any Professional either during the fulfillment of a Shift or otherwise.
4. IP & LICENSING
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4.1.
License and Restrictions.
4.1.1.Subject to the terms and conditions of this Agreement, ShiftKey hereby grants to Client a limited, revocable, non-exclusive, non-transferable license for each of its Facilities, through its Users on behalf of such Facility, to access the Platform so that the Facility can use the Services in strict accordance with this Agreement, throughout the Term. You may only access or use the Platform and Services for your Facility's own internal purposes in accordance with this Agreement. All rights not expressly granted to the Facility are reserved by ShiftKey, its affiliates and their respective licensors.
4.1.2.As a condition of your access or use of the Platform and/or Services, you promise not to access or use the Platform and/or Services for any purpose that is prohibited by this Agreement or applicable law. You are responsible for all of your activity in connection with the Platform or Service.
4.1.3.You shall not, and shall not allow any other person or entity to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party your use of or access to the Platform and/or Services in any way; (b) modify or make derivative works based upon the Platform and/or Services; (c) improperly use the Platform and/or Services, including creating internet "links" to any part of the Platform, "framing" or "mirroring" any part of the Platform on any other websites or systems, or "scraping" or otherwise improperly obtaining data from Platform; (d) reverse engineer, decompile, modify, or disassemble the Platform, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Platform and/or Services to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Platform an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Platform; (iv) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the servers on which the Platform are stored, or any server, computer, database, system or network connected to the Platform; or (v) otherwise attempt to interfere with the proper working of the Platform.
4.1.4.We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process or governmental request, to the extent permitted by applicable law; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to User support requests; or (v) protect the rights, property or safety of ShiftKey, other Users and the public.
4.2.ShiftKey Intellectual Property and User Contributions.
4.2.1.All ShiftKey Data and all other information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, and all intellectual property rights therein, are and shall remain, owned by ShiftKey, its affiliates, licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other applicable intellectual property or proprietary rights laws. Neither this Agreement nor your use of the Platform and/or Services conveys or grants to you any rights in or related to the Platform, Services, ShiftKey Data, or other of the foregoing tangible or intangible property of ShiftKey, its affiliates, licensors, or other providers, except for the limited license granted above. Other than as specifically permitted by ShiftKey in connection with your use of the Services, you are not permitted to use or reference ShiftKey Data in any manner for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the ShiftKey Marks and names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any similar mark, name or title, for any goods and services.
4.2.2.ShiftKey or any of its third-party partners and its affiliates, may ask you for Feedback on your experience with the Platform and/or Services. ShiftKey shall become the owner of such Feedback and may share such information with any of its affiliates. ShiftKey will not be required to treat any Feedback as confidential and will not be liable for any Feedback posted on the Platform or elsewhere. Without limitation, ShiftKey will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, including to advertise and promote ShiftKey, without compensation to you or any other person or entity sending the Feedback. You specifically waive any "moral rights" in and to any Feedback or User Contributions.
4.2.3.The Platform may contain certain functions or features that allow you to Post User Contributions. All User Contributions must comply with the content standards set forth in Section 4.3 of this Agreement. Any User Contribution you post to the Platform or ShiftKey's social media pages will be considered non-confidential and non-proprietary. By posting any User Contribution on the Platform or ShiftKey's social media pages, you grant ShiftKey and its affiliates and service providers, and each of their and its respective licensees, successors, and assigns the right to remove, bring down, use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose in accordance with the terms and conditions of this Agreement and ShiftKey's Privacy Policy.
4.2.4.You are responsible for any and all User Contributions you submit or contribute, and you, not ShiftKey, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Platform.
4.2.5.ShiftKey complies with the Digital Millennium Copyright Act, 17 U.S.C. ยง 512 ("DMCA"). If any person, whether a User or otherwise, believes that content on the Platform violates their copyright and want to request its removal, please email Legal@ShiftKey.com with the information outlined in section 512(C)(3) of the DMCA or to request instructions on how to submit a take-down request. ShiftKey has appointed its General Counsel as agent to remove documentation, and the General Counsel can be reached at Legal@ShiftKey.com or by writing to ShiftKey LLC, Attention: General Counsel, 5221 North O'Connor Boulevard Suite 1400 Irving, TX 75039.
4.3.Content Standards. These content standards apply to any and all User Contributions and use of the Platform. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws, ordinances, rules and regulations. Without limiting the foregoing, User Contributions must not:
4.3.1.Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable to a reasonable person.
4.3.2.Promote sexually explicit or pornographic material, violence, or unlawful discrimination based on race, sex, religion, nationality, veteran status, disability, sexual orientation, age, or any other legally protected status.
4.3.3.Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
4.3.4.Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement or the Privacy Policy.
4.3.5.Be likely to deceive any person.
4.3.6.Promote any illegal activity, or advocate, promote, or assist any unlawful act.
4.3.7.Be intended to cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other reasonable person.
4.3.8.Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
4.3.9.Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
4.3.10.Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
4.4.Marketing. Client grants ShiftKey the right to use Client's name, mark and logo in ShiftKey's marketing materials; provided, however, that any use in marketing materials must be pre-approved, not to be unreasonably withheld, in writing by Client. Without requiring prior Client's approval, Client agrees that ShiftKey may use Client's name, mark and logo on ShiftKey's website and marketing materials and state the fact that Client is a ShiftKey customer without revealing specifics about the Agreement or the relationship.
5. RISK ALLOCATION & DISPUTES
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5.1.
Indemnification and Liability.
5.1.1.To the fullest extent permitted by applicable law, none of Shiftkey, its affiliates, or their licensors, service providers, employees, agents, officers, or directors shall be liable under, related to, or arising out of this Agreement, your use, or inability to use, the Platform and/or Services, any websites linked to the Platform, any content on a platform or such other websites for any of the following, whether based on contract, tort or any other legal theory, even if such person or entity has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) your or any third party's property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. In no event shall the liability of Shiftkey, its affiliates, or their licensors, service providers, employees, agents, officers, or directors under, related to, or arising out of this Agreement, your use, or inability to use, the Platform and/or Services, any websites linked to a platform, any content on a platform or such other websites, exceed the amount of the total fees actually paid to or due to Shiftkey hereunder in the six (6) month period immediately preceding the event giving rise to such claim.
5.1.2.You shall indemnify, defend (at ShiftKey's sole discretion), and hold harmless ShiftKey and its affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all Claims arising out of or related to (a) your breach of this Agreement, your use of the Platform, including, but not limited to, your User Contributions, any use of a Platform's Content, Services, and products other than as expressly authorized in this agreement, your use of any information obtained from a platform, and your acts and omissions in connection with your use of any Services pursuant to this Agreement, and (b) made by a Professional or you against each other for any Claim related to the Services or for any reason whatsoever. Without limiting the generality of the foregoing, you are responsible for your own actions and omissions and hereby agree to indemnify ShiftKey and shall hold ShiftKey harmless for any and all claims against or incurred by ShiftKey, including any Claims that may have been contributed to by ShiftKey's own negligence, in whole or in part, arising out of, in connection with, or as a result of your access or use of the Services that fails to comply with governing laws and applicable professional standards. Notwithstanding anything to the contrary herein, ShiftKey reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with ShiftKey in asserting any available defenses.
5.1.3.ShiftKey will indemnify, defend and hold Client harmless from and against any third-party claims relating to (a) any employer tax liability or penalty imposed upon Client by the Internal Revenue Service, or to other taxing authority, directly relating to the Professional(s), except to the extent such claim arises out of an act or omission of Client; and (b) a lapse in Medical Malpractice or Occupational and Accident Insurance coverage that the Professionals are required to obtain and maintain in order to use the Platform. As a condition of ShiftKey's obligations set forth above, Client must (i) provide prompt written notice of such claim to ShiftKey, (ii) upon demand, give ShiftKey exclusive right to control and direct the defense and any settlement of such claim, and (iii) fully cooperate and provide all reasonably requested information to ShiftKey upon request. Notwithstanding the foregoing or other provisions contained herein, ShiftKey's maximum liability pursuant to ShiftKey's indemnification obligations set forth above shall not exceed the lesser of the amount set forth in Section 5.1.1 or Five Hundred Thousand Dollars ($500,000.00).
5.2.Insurance. During the Term of the Agreement and for a period of one (1) year thereafter, ShiftKey shall procure and maintain (i) commercial general liability insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 aggregate, including coverage for bodily injury, property damage, products and completed operations, and contractual liability, and (ii) worker's compensation in the amount statutorily required. Client acknowledges that ShiftKey's worker's compensation insurance is intended to cover its own employees and not the Professionals.
5.3.Geographic Limits of Service.
5.3.1.ShiftKey is based in the State of Texas in the United States. We provide the Platform and Services for use only by persons and healthcare facilities located in the United States, with the exception of the Excluded States. ShiftKey makes no claim or representation that any information, documentation, or materials contained on or accessible through the Platform or any products or services described or offered on or through the Platform and/or Services are appropriate or available for use in jurisdictions outside the United States or in the Excluded States, or that this Agreement comply with the laws of any other country or the Excluded States. Accessing or using the Platform or Service is prohibited from territories where the Content is illegal or from any sanctioned country or region. If you access the Platform from other locations, you do so at your own initiative and are responsible for compliance with local laws.
5.3.2.ShiftKey reserves the right, at any time in its sole discretion, to limit, restrict, or terminate the availability or accessibility of the Platform and/or Services to any person, entity, geographic area, or jurisdiction we so desire.
5.4.Disclaimer.
5.4.1.Your use of and access to the Platform or Service is at your own risk and on an "as is" and "as available" basis, without any warranties of any kind, either express or implied. ShiftKey and its affiliates do not represent, warrant or guarantee that your access to or use of the Platform or Service: (a) will be uninterrupted or error free; or (b) will result in any qualified Professionals being available to fulfill a shift.
5.4.2.TO THE FULLEST EXTENT PROVIDED BY LAW, SHIFTKEY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
5.4.3.NEITHER SHIFTKEY NOR ANY PERSON ASSOCIATED WITH SHIFTKEY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PLATFORMS. WITHOUT LIMITING THE FOREGOING, NEITHER SHIFTKEY NOR ANYONE ASSOCIATED WITH SHIFTKEY REPRESENTS OR WARRANTS THAT THE PLATFORMS, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT SHIFTKEY'S PLATFORMS OR THE SERVER(S) THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORMS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
5.4.4.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SHIFTKEY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
5.4.5.THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
5.4.6.SHIFTKEY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE PLATFORMS AND/OR SERVICES. THE PLATFORMS AND/OR SERVICES MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON, INCLUDING DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE. FURTHER, THE PLATFORMS AND/OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND SHIFTKEY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
5.5.Governing Law and Dispute Resolution. This agreement and any disputes that arise hereunder are governed by the laws of the state of Texas. You and ShiftKey each hereby agree that any action at law or in equity arising out of or related to this agreement or the subject matter contained herein shall be subject to the exclusive jurisdiction of the state and federal courts located in the city and county of Dallas, Texas. You and ShiftKey each hereby submit to the exclusive jurisdiction and forum of such courts in any suit, action, or proceeding. If any dispute shall arise out of this agreement and legal action filed, the prevailing party shall recover all of its reasonable and necessary attorneys' fees as well as its costs of court. The Client, including all Facilities, Users, successors, affiliates, subsidiaries, and agents, waives the right to participate in a class action or other representative action in court or in arbitration.
6. GENERAL TERMS
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6.1.
Term and Termination.
6.1.1.The term of the Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Agreement (the "Term").
6.1.2.In addition to any rights the Parties may have to terminate the Services or this Agreement:
6.2.2.1.Either Party may terminate the Service Agreement by written notice to the non-terminating Party at least thirty (30) days in advance of the intended termination date.
6.2.2.2.The Client may terminate the Service Agreement immediately: (a) upon the suspension, revocation, relinquishment, restriction, or lapse of ShiftKey's license to conduct business in the state where the Client is located; (b) upon the failure of ShiftKey to make timely required disclosures as required herein; (c) upon ShiftKey's breach of the confidentiality provisions of these Client TOS; or (d) when specifically permitted by any other provision of the Agreement.
6.2.2.3.ShiftKey may terminate the Service Agreement with a Client upon a material breach by the Client or a User.
6.1.3.In the event of termination, you may still be charged fees in accordance with the cancellation policy set forth in the Service Agreement or for outstanding payment obligations. Correspondingly, ShiftKey may terminate or delete any User Account or otherwise cease providing you with access to or use of the Platform and/or Services at any time and for any reason.
6.1.4.Termination of Agreement; Survival. Following termination of the Service Agreement or deactivation of all of the User Accounts associated with a Facility, such Facility's license that is granted hereunder automatically terminates and ShiftKey has no obligation to provide you with access to or use of the Platform and/or Services. You agree that even upon termination or deactivation of your User Account, any fees paid to ShiftKey are non-refundable and any fees associated with Shifts completed prior to termination are due and payable. Notwithstanding anything to the contrary herein, [Sections 5, 7.3, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19 and 20] shall survive the termination of this Agreement.
6.2.Confidential Information. Each party acknowledges and agrees that it may be exposed to Confidential Information of the other party. Except as set forth otherwise in the ShiftKey Privacy Policy, Confidential information of the receiving party will be used solely for the purposes of carrying out the receiving party's obligations under this Agreement. Further, each Party agrees to maintain the confidentiality of the Confidential Information disclosed by the other Party and will hold such Confidential Information in strict confidence. Each Party shall notify the other Party of any actual or suspected misuse, misappropriation, or unauthorized disclosure of the disclosing party's Confidential Information. Upon expiration or termination of this Agreement, each Party shall return or destroy any Confidential Information in its possession. Confidential Information does not include information that at the time of disclosure can be reasonably shown: (a) is or becomes generally known by the public other than as a result of any breach by the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis from a third party, provided that such third party is not prohibited from disclosing such information; (c) was known by or in the possession of the receiving party prior to being disclosed by the disclosing party, or (d) was or is independently developed by the receiving party without reference to or use of the disclosing party's Confidential Information. The receiving party may disclose Confidential Information of the disclosing party if it is required to be disclosed pursuant to applicable law, administrative or court order, provided the receiving party makes reasonable efforts to notify the disclosing party prior to disclosing the information, if permissible, and only discloses Confidential Information that is required to be disclosed.
6.3.Miscellaneous.
6.3.1.Entire Agreement. The Service Agreement, these Client TOS, and the Privacy Policy, together with any Schedules, exhibits, and/or amendments to each of the foregoing, constitute the entire agreement of the Parties with respect to the matters provided for in this Agreement, and supersedes all other prior or contemporaneous oral or written agreements or commitments by or among such Parties with respect to the subject matter of this Agreement. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that you and ShiftKey shall remain bound by all other provisions hereof. Except for the Client TOS that can be amended as described herein, no subsequent terms, including any conditions or amendments, will be effective unless mutually agreed by the parties in writing.
6.3.2.Modification. ShiftKey may revise and update these Client TOS from time to time in its sole discretion. In the event ShiftKey revises or updates the terms and conditions of this Agreement, at any time, such modifications shall be binding on you only upon your acceptance of the modified Client TOS or use of the Platform or Service. No modification to the Service Agreement will be effective unless mutually agreed in writing.
6.3.3.Assignment. Client may not assign this Service Agreement without the prior written consent of ShiftKey. Notwithstanding the foregoing, if Client assigns the Service Agreement, the successor or assignee agrees to assume all obligations, liabilities, and responsibilities set forth in the Service Agreement. Without limiting the foregoing, any use of the ShiftKey platform after a sale, divestiture, management change or other change to the operation or ownership of a Facility shall not waive liability of any Fees incurred by the entity employing the User who continued such use.
6.3.4.Interpretation. For purposes of this Agreement, (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; and (d) each definition herein includes the singular and the plural and any reference to the singular in this Agreement shall also include the plural and vice versa. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to in the Service Agreement shall be construed with, and as an integral part of, the Service Agreement to the same extent as if they were set forth verbatim herein. The headings in this Client TOSare for reference only and shall not affect the interpretation of this Client TOS
6.3.5.Counterparts. The Service Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Service Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Service Agreement.
6.3.6.Relationship of Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither ShiftKey nor you have any authority of any kind to bind the other in any respect. Notwithstanding anything to the contrary herein, and for the avoidance of doubt, any and all actions taken by a Facility's Users with respect to the Platform and/or Services shall be binding upon the Facility.
6.3.7.Notice Policy and Your Consent.
6.3.7.1.Any and all notices, consents, or other formal communication, which either ShiftKey or a Facility is required to or may desire to give the other under this Agreement, shall be done so in writing, addressed to ShiftKey or the Client, as applicable, at the address set forth in the Service Agreement for such party and shall be sent via U.S. Mail, certified, return receipt requested, or by courier service such as Federal Express. Additionally, a duplicate copy of any notice given by ShiftKey to Facility or by Facility to ShiftKey hereunder may be provided to the applicable party via e-mail at the email address set forth in the Services Agreement for such party; except that the sending of any such duplicate copies shall not substitute for the original notice.
6.3.7.2.Communications. By creating an Account, you consent to receive electronic communications from ShiftKey (e.g., via email, text message, or by posting notices to the App). These communications may include operational notices about your Account and are part of your relationship with ShiftKey. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
6.3.7.3.Notwithstanding anything to the contrary herein or in the Services Agreement, ShiftKey may also provide notice to you, in your individual capacity as a User or as a representative of the Client, through the Platform by posting on the Platform or on a portal that is available through the Platform.
6.3.8.Force Majeure. The failure of ShiftKey to comply with this Agreement because of an act of God, war, fire, riot, terrorism, pandemic, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of ShiftKey, shall not be deemed a breach of this Agreement. If ShiftKey fails to act with respect to Your breach or anyone else's breach on any occasion, ShiftKey is not waiving its right to act with respect to future or similar breaches.
6.3.9.No Waiver. No waiver by ShiftKey of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of ShiftKey to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
6.3.10.Third Party Beneficiary. If you use the Platform on an Apple phone or mobile device, Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be considered to have accepted that right) to enforce this Agreement against You as a third-party beneficiary of this Agreement. Subject to this Agreement, ShiftKey, not Apple, is responsible for addressing any claims you may have relating to the Platform or your possession or use of the Platform. In the event of any failure of the Platform to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price (if any) for the Platform to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform. In addition, Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform. In the event of any third party claim that the Platform or your possession and use of the Platform infringe that third party's intellectual property rights, subject to this Agreement, ShiftKey, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. DEFINITIONS
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"Account" means an account registered on the ShiftKey Platform or App.
"Admin Assist" means the feature on the ShiftKey Platform whereby a Client elects to automatically fill available Shifts.
"Agreement" means the collective Service Agreement, including Schedules, and Client TOS.
"App" means ShiftKey's mobile application.
"Claim" means all liabilities, judgments, awards, losses, costs, expenses (including reasonable legal fees), damages, penalties, fines, fees, social security contributions and taxes incurred in connection with a dispute associated with this Agreement.
"Client" means the entity set forth in the Service Agreement on whose behalf the User has registered its Account and access or use the Platform and/or Services.
"Client Terms of Service" or "Client TOS" means these terms of use of the ShiftKey Services and Platform, as amended from time to time.
"Confidential Information" means confidential and proprietary information about a party and its business affairs and services, including but not limited to, materials comprising or relating to user data, marketing campaigns, intellectual property, trade secrets, third-party confidential information, financial, and other sensitive or proprietary information, whether orally or in written, electronic or other form or media marked or identified as "confidential" or where a reasonable person should know the confidentiality of the information.
"Content" means various content, including, but not limited to, videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, campaigns, other material and information, and associated trademarks and copyrightable works.
"Excluded States" means the states where ShiftKey does not operate, including the State of California and the Commonwealth of Massachusetts.
"Facility" means the entity that operates a healthcare facility or the entity that provides healthcare services to patients (including but not limited to dentistry, physical therapy, occupational therapy, respiratory therapy, speech therapy) and is represented by the Client that entered into a Service Agreement with ShiftKey.
"Feedback" means any reviews, comments, suggestions or other feedback regarding the Platform and/or Services posted to the Platform or on ShiftKey's social media pages.
"Laws" means applicable laws, rules, regulations, ordinances, or codes.
"Platform" means the Site and App, collectively.
"Post" means post, submit, publish, display, transmit, or otherwise make available to other Users, persons, or entities, including ShiftKey.
"Professional" or "Professional Provider" means an independent health care service provider offering their services as an independent contractor through the Platform.
"Service Agreement" means the mutually signed agreement setting forth your identity, the Shift Fees, descriptions of your Facilities, and certain other terms.
"Services" means the access and use of the Platform and services and functions related thereto including ShiftKey's services that enable Facilities to locate Professionals to seek, request, receive, bid on, approve, accept, reject, and/or fulfill on-demand contractual requests to perform healthcare services.
"Shift" means the provision of healthcare services by a Professional to Facility in accordance with the description and scope of such healthcare services, including the type and nature of such healthcare services, the date, time, duration, and location of such healthcare services, that are requested, bid on, received, approved, accepted, fulfilled, paid for by Professionals and/or Facility through the use of the Services.
"Shift Fee" means the fee collected by ShiftKey for the performance of the Shift by the Professionals and as further set forth in the Service Agreement.
"Shift Fee Schedule" means the Shift Fee amounts and any associated Premium Rates which will be used for all completed Shifts in accordance with the respective Professional's specialty.
"ShiftKey Data" means the Platform and the Platform's entire contents, features, and functionality including but not limited to all data related to the access and use of the Services hereunder, including all data related to the provision of Shifts via the Services.
"ShiftKey Marks and Name" means ShiftKey's, its affiliates', or their respective licensors' respective company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs.
"Site" means ShiftKey's website located at www.shiftkey.com, and all pages accessible through such site.
"User" or "Authorized User" means that certain employee, contractor, or agent who has been authorized by the Client, or Facility, including the ability to contribute, add, create, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible Content, unless Client has stated in writing that the User does not have authority to access and use the Platform and Services, including all functions, content and services related thereto, on each Facility's behalf and on the terms and conditions set in this Agreement.
"User Contributions" means information, content, or materials, including Feedback, on or through the Platform or you may otherwise post such information, content, or materials on ShiftKey's social media pages.