Last Updated: May 31, 2023

Terms of Service

• This ShiftKey LLC (“ShiftKey”) Terms of Service (this “Agreement”) is made and entered by and between you (as defined below), your Facility (as defined below), and ShiftKey, a technology company that provides a technology platform for self-employed or independent contractor health care service providers and healthcare facilities so that they can find one another for the purposes of engaging in a business to business arrangement whereby the two may contract for services needed by the healthcare facility, and provided by the self-employed or independent contractor health care service provider. ShiftKey’s technology platform facilitates proof of credentials, and payments from the healthcare facility to self-employed or independent contractor health care service provider. ShiftKey has no involvement in the relationship between self-employed or independent contractor health care providers and healthcare facilities. ShiftKey merely provides this platform for such parties to connect and be able to contract with one another, if they so choose, under whatever terms they choose. ShiftKey is not a healthcare facility or employer, and is not affiliated with any of the self-employed or independent contractor health care providers or the healthcare Facilities.

1. Acceptance of Terms

• 1.1. Access to Platforms and/or Services.
• • 1.1.1. By using the ShiftKey’s website located at www.shiftkey.com, and all pages accessible through such site (collectively, the “Site”), ShiftKey’s mobile application (the “App” and, collectively with the Site, the “Platforms” and each a “Platform”), and all other related services offered or performed through the Platforms, including any content, functionality, and services offered on or through the Platforms in any manner, including, but not limited to, visiting or browsing the Site or contributing content, information, or other materials or services to the Platforms, you, the user on behalf of a Facility (as defined below) (“you”, or “your”), acknowledge and agree that this Agreement constitutes a legally binding agreement between you and ShiftKey. If you do not want to agree to this Agreement, you must not access or use the Platforms and/or Services.
  • 1.1.2. For purposes of this Agreement: (a) “Facility” means the entity that operates a healthcare facility and entered into a Client Services Agreement with ShiftKey related to such healthcare facility’s use of the Services and (b) “Services” means the access and use of the Platforms and services and functions related thereto, including, ShiftKey’s on-demand lead generation and related services that enable Facilities to locate self-employed or independent contractor health care service providers to seek, request, receive, bid on, approve, accept, reject, and/or fulfill on-demand contractual requests to perform healthcare services; (c) “your Facility” means the Facility that has designated you for access to a Facility account on the Platforms and on whose behalf you have registered your Authorized User Account (as defined below) and access or use the Platforms and/or Services; and (d) “Services Agreement” means the Client Services Agreement that was entered by and between ShiftKey and your Facility.
  • 1.1.3. PLEASE READ THIS AGREEMENT CAREFULLY. PLEASE NOTE THAT TO USE THE PLATFORMS AND SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY VIRTUE OF YOUR USE OF THE PLATFORMS AND SERVICES, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE SERVICES AGREEMENT, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH HEREIN, YOU MAY NOT USE OR ACCESS THE PLATFORMS AND/OR SERVICES.
  • 1.1.4. You agree to access and use the Platforms and Services only for your Facility’s lawful internal purposes, and that you are responsible for your access and use of the Platforms and Services and communications with us, all of which must comply with this Agreement. You agree not to access or use the Platforms and Services in any manner that interferes with the normal operation of the Services or with any other User's (as defined below) access, use, or enjoyment of the Platforms and Services. Notwithstanding anything to the contrary herein, the Facility is responsible for the access and use of the Platforms and Services and any and all actions taken by the Facility’s Authorized Users (as defined below) with respect to the Platforms and/or Services shall be binding upon the Facility.
• 1.2. Use of the Platforms and Services on Behalf of Third Party
• The Platforms and Services are made available to Facility and its Authorized Users for Facility’s internal business use only. If you are accessing this portion of the Platforms, you are doing so in conjunction with the Services Agreement, which is incorporated herein by reference. By accessing or using the Platforms and/or Services, you hereby agree to be bound by and comply with the terms and conditions of this Agreement. In entering into this Agreement on behalf of your Facility, you represent that you have the legal authority to bind such entity to these terms, in which case the terms “you” or “your” shall collectively refer to you and your Facility. If you do not have such authority or if you do not agree with the terms of this Agreement, you may not access or use the Platforms and/or Services. If you do not have, or in the future no longer have, authority to bind your Facility to any and all actions you take with respect to the Platforms and/or Services, you will be personally responsible for any and all actions you take with respect to the Platforms and Services, including without limitation, any payment obligations that may arise from requesting and scheduling a Shift (as defined below) using the Services. ShiftKey shall not be 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. 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.
• 1.3. Authorized Users.
• • 1.3.1. Pursuant to the Services Agreement, Facility has authorized certain employees, contractors, or agents who have been designated in the Services Agreement (each, an “Authorized User”) to access and use the Platforms and Services, including all functions, facilities, content and services related thereto, on Facility’s behalf and on the terms and conditions set in this Agreement. By accessing or using the Platforms and/or Services, each Authorized User hereby agrees that such access and use shall be governed by, and shall be utilized in strict accordance with, this Agreement.
  • 1.3.2. An Authorized User may only access the healthcare facility portion of the Platforms by invitation. Invitations are sent to each Authorized User, as determined by the Facility, so that a unique username and password can be created for each Authorized User to create a ShiftKey account in the facility portion of the Platforms (“Authorized User Account”). Facility hereby acknowledges and agrees that any and all access or use by an Authorized User of the Platforms and/or Services shall be subject to the terms and conditions of this Agreement. Facility is responsible for ensuring that its Authorized Users’ access and use of the Platforms and Services is in strict compliance with this Agreement. Facility hereby acknowledges and agrees that any and all actions taken by its Authorized Users with respect to the Platforms and/or Services shall be binding upon Facility.
  • 1.3.3. Facility hereby acknowledges and agrees that all of its Authorized Users shall be 18 years of age or older. If an Authorized User is under 18 years of age, such Authorized User is not authorized to access or use the Platforms and/or Services. To register for an Authorized User Account, an Authorized User must be at least 18 years old (or the age of majority, as determined by the laws in the state in which you reside, whichever is older). By creating an Authorized User Account, each Authorized User affirms that such Authorized User is at least 18 years old and are fully able and competent to enter into, and comply with, this Agreement. Additionally, each Authorized User must (a) reside in the United States, but not in the State of California or Massachusetts (which are State where ShiftKey does no business), or any of its territories or possessions, (b) have not been previously suspended or removed from the Platforms, or engaged in any activity that could result in suspension or removal from the Platforms, (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. If you are accessing or using the Platforms or Services on behalf of another person or entity, you represent that you are authorized to accept this Agreement on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates this Agreement.
• 1.4. Changes to this Agreement
• If changes to this Agreement occur in accordance with Section 21.1 hereof, we will notify you by posting the updated terms on the Platforms or by email. It is your responsibility to check this Agreement periodically for changes. Updated versions of this Agreement will never apply retroactively and the updated Agreement will give the exact date it goes into effect. Your continued access or use of the Platforms and/or Services following the effective date of any changes to this Agreement means you accept those new terms. Therefore, you should review this Agreement prior to each access or use of the Platforms and/or Services. For the avoidance of doubt, unless such changes are mandated by law, any Professional Providers (as defined below) who are scheduled for a Shift with the Facility before changes to this Agreement occur may continue such scheduled Shift based on the version of the Agreement effective as of the date the Shift was accepted by both the Professional Provider and Facility.

2. Application of this Agreement

• 2.1. Applicability.
• This Agreement applies to you, your access to and use of the Platforms and Services, and your relationship with ShiftKey and should be read and applied in conjunction with the Services Agreement.

3. The ShiftKey Services

• 3.1. Scope of Services.
• • 3.1.1. ShiftKey, through its proprietary online scheduling system on the Platforms, provides certain lead generation services between healthcare facilities, such as Facility, that are seeking self-employed or independent contractor health care service providers who are registered to use the Services (“Professional Providers”), for such Professional Providers to potentially provide such healthcare services to the Facility during a Shift. The Platforms enable Facility, through its Authorized Users on Facility’s behalf, to utilize the Services, including to seek, bid on, request, accept, approve, and receive healthcare services from an authorized Professional Provider. Unless expressly provided otherwise in this Agreement, all requests, approvals, confirmations, and cancellations for the Services are done so only through the Platforms. For purposes of this Agreement, “Shift” means the provision of healthcare services by a Professional Provider to Facility in accordance with the description and scope of such healthcare services, including the type and nature such healthcare services, the date, time, duration, and location of such healthcare services, that are requested, bid on, received, approved, accepted, and fulfilled by Professional Providers and Facility through the use of the Services.
  • 3.1.2. Through the Platforms, you can view the profile of each Professional Provider. Professional Providers are required to upload to their profile certain information and documentation that shows such Professional Provider’s qualification to perform healthcare services, including the Professional Provider’s professional certification and licensing information.
• 3.2. Vetting
• • 3.2.1. ShiftKey does not hire the Professional Providers and the Professional Providers are not employed by ShiftKey. ShiftKey only requires Professional Providers to undergo standard background checks, including criminal and drug testing as required under both federal and applicable state law, and submit accompanying licensing documentation consistent with the healthcare services being provided by the Professional Provider pursuant to the Services.
  • 3.2.2. In the event that any Professional Provider loses his/her necessary licensure or otherwise is no longer qualified to provide healthcare services, such Professional Provider is required to immediately notify ShiftKey and the Facility for which the Professional Provider has bid on, requested, accepted, or is scheduled to fulfill a Shift.
  • 3.2.3. Notwithstanding anything to the contrary herein, ShiftKey assumes no responsibility for any act or omission of any Professional Provider either during the fulfillment of a Shift or otherwise. We make no representation or warranty whatsoever as to the willingness or ability of Professional Providers to give advice or provide healthcare services.
• 3.3. Listing and Scheduling a Shift
• • 3.3.1. You may schedule a Shift with a Professional Provider through the Platforms. Through the Platforms, you will be able to list a work request for which you desire a Professional Provider to fulfil and you will be able to filter through Professional Providers that have listed their availability for such Shift.
  • 3.3.2. SHIFTKEY DOES NOT GUARANTEE THE AVAILABILITY OF PROFESSIONAL PROVIDERS FOR ANY SHIFT OR FOR ANY NUMBER OF SHIFTS.
  • 3.3.3. After you list a requested Shift on the Platforms, Professional Providers will have the opportunity to respond to the request to fulfil your listed Shift. After a Professional Provider responds to your listed Shift, you will be asked to review and confirm the Professional Provider for the applicable Shift. By authorizing the Professional Provider for the Shift, you are agreeing to the Shift being fulfilled by such Professional Provider. If, for any reason, during the course of the Shift, you and the Professional Provider determine that more hours of work than were listed for the Shift in the Platforms are needed, you and the Professional Provider may agree to extend the Shift.
• 3.4. Professional Providers Relationship with Facilities
• • 3.4.1. You acknowledge and agree that your use of the Services to request, bid on, accept, or receive healthcare services from a Professional Provider during a Shift creates a direct business relationship between the Facility and the applicable Professional Provider. ShiftKey is not responsible or liable for the actions or inactions of Professional Provider, 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 Provider’s fulfillment of any Shift, or otherwise. Facility and the applicable Professional Provider shall have the sole responsibility for any obligations or liabilities to Facilities, the Professional Provider, or third parties that arise from the Professional Provider’s provision of healthcare services in fulfillment of a Shift for such Facility. Facility acknowledges and agrees that it 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 Provider, or a third party. You acknowledge and agree that, unless specifically consented to by the Professional Provider and Facility, Professional Provider 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 Provider’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.
  • 3.4.2. It is mutually understood and agreed that the Facility and the Professional Provider are, and shall at all times, be acting in the capacity of independent contractors and are each independent contractors with, and not partners, agents, or employees of each other. ShiftKey and Facility both expressly agree that no work, act, commission or omission by ShiftKey or any Professional Provider, shall be construed to make or render ShiftKey, or any Professional Provider, 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.
  • 3.4.3. ShiftKey does not discriminate on the basis of sex, color, race, national origin, religion, gender, gender identity, marital status, age, or sexual orientation.
  • 3.4.4. Do Not Return List. If you have any questions or complaints, please reach out to help@shiftkey.com. Do Not Return (“DNR”) is a common term used by both Facilities, and Professional Providers to express disinterest in having a Professional Provider perform another Shift for the Facility. If a Facility selects a Professional Provider to be on their DNR list, the Professional Provider will no longer see Shift opportunities for that Facility. A Facility may request a DNR for whatever reason they deem necessary.
• 3.5. Automatic Assignment
• • 3.5.1. The ShiftKey Platform has the ability to automatically fill Shifts that you list as available (“Easy-Assign Feature”). The Easy-Assign Feature assigns Professional Providers to all Shifts listed by Client according to the following: (a) any Professional Providers designated as a preferred Professional Provider by Client (for example, labeling such Professional Provider with #favorite in its feedback), then (b) any Professional Providers with a reasonably satisfactory reliability rating, and then (c) other mutually acceptable criteria.
  • 3.5.2. The Easy-Assign Feature is an optional benefit to the Platform and is available at Client’s sole discretion. To activate the Easy-Assign Feature, contact your account manager. Upon activation, the Easy-Assign 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 Professional Providers for any Shifts. Client may withdraw this authorization at any time during the Term by providing notice to help@shiftkey.com.
  • 3.5.3. By activating and using the Easy-Assign Feature, Client hereby releases and will hold harmless ShiftKey from any liability associated with the Easy-Assign Feature. The Client remains responsible for the selection of the Professional Provider for each Shift and, subject to Section 5.4 of this Agreement, may cancel the scheduling or assignment of any Professional Provider. The Easy-Assign Feature is intended to be a benefit to Client and does not represent ShiftKey’s recommendation or selection of a Professional Provider.

4. ShiftKey’s Responsibilities

• 4.1. ShiftKey Compliance
• • 4.1.1. ShiftKey, to its knowledge, has and shall maintain all appropriate federal and applicable state licenses and certifications which are required in order for ShiftKey to operate the Platforms and provide the Services under this Agreement.
  • 4.1.2. ShiftKey, to its knowledge, has not been excluded from any federal healthcare program, no basis for such exclusion exists, and it has not been subject to any final adverse action as defined under the Health Care Fraud and Abuse Data Collection Program. ShiftKey agrees to notify Facility promptly upon ShiftKey becoming aware that ShiftKey has become the subject of an inquiry, investigation, or final adverse action by a governmental agency, third party payer, or intermediary that could reasonably interfere with ShiftKey’s operation of the Platforms and services provided through the Platforms. The Facility, at its sole discretion, shall have the right to terminate this Agreement, and the Services Agreement, immediately upon notice of such an event.
  • 4.1.3. ShiftKey shall keep, maintain, and store records relating to the Platforms and services rendered hereunder as is commercially reasonable and in accordance with accepted professional standards and practices in the lead generation services’ industry in which ShiftKey operates. In addition to the foregoing, ShiftKey may, in its reasonable discretion, keep, maintain, and store such records as may be requested by the Facility and any federal, state, or local government agency, or other party to whom ShiftKey submits invoices for services rendered. ShiftKey further agrees to make all such records available upon reasonable request for inspection or copying by Facility, during ShiftKey’s normal business hours and at Facility’s cost and expense, subject to any federal or applicable state laws relating to confidentiality of such records.
  • 4.1.4. ShiftKey and Facility acknowledge and agree that Protected Health Information, as defined under HIPAA, is not exchanged between the ShiftKey and Facility in order for Professional Providers to request, or provide services for those Shift requests submitted by the Facility. You hereby acknowledge and agree that you will not access or use the Platforms and/or Services, including uploading to any Platforms or otherwise providing ShiftKey any individually identifiable health information, in violation of the Health Insurance Portability and Accountability Act of 1996, set forth in Title XI, Part C of the Social Security Act (42 U.S.C §1320d-1329d- 8) and the regulations thereunder (45 C.F.R Part 160,162, and 164) (as amended from time to time “HIPAA”).

5. Payment, Credit Limits, and Cancellations

• 5.1. Payment
• • 5.1.1. ShiftKey does not charge a fee to your Facility for you to create an Authorized User Account. We do charge fees, however, for certain services that are utilized through the Platforms and Services, including booking a Shift through the Platforms. When you use a service that has a fee you will have an opportunity to review and accept the fees that you will be charged. You are responsible for paying all fees and taxes associated with your use of the Services. In your Authorized User Account, you are able to enter payment information for your Facility to facilitate payment to ShiftKey upon the conclusion of a Shift.
  • 5.1.2. Prior to each scheduled Shift, a fee schedule for such Shift shall be listed on the Platforms. Rates vary by licensure level of Professional Provider, time of day, and weekend/holiday requests. Additionally, ShiftKey may charge a higher rate if the Shift request is within 24 hours of start of work (“Premium Rate”).
  • 5.1.3. The fee schedule that is posted to the Platforms prior to the start of a Shift shall include the following fee information: (a) the hourly rate for which a Professional Provider is to be paid during a Shift (the “Bid Rate”); (b) the amount of payment the Professional Provider is to receive for fulfilling a Shift which is calculated by multiplying the Bid Rate by the number of hours to be worked by a Professional Provider for the applicable Shift (the “Bid Fee”); and (c) the service fee that ShiftKey charges, on a per Shift basis, the Facility for use of the Services (the “Service Fee”). In the event that a Shift is altered or modified after it has been scheduled by the applicable Professional Provider and the Facility, including if the number of hours for such Shift is revised, ShiftKey may, upon notice to the Facility, reasonably adjust the Bid Rate, Bid Fee, or Service Fee as a result of any such changes to the Shift.
  • 5.1.4. After the Shift is completed, you will have the opportunity to validate the Shift hours that Professional Provider completed. The Professional Provider will then upload that validation to the ShiftKey Platform. Once it has been properly uploaded, ShiftKey will send to the Facility an invoice for the Shift, which shall identify services rendered, the name of the Professional Provider, the date and shift worked by the Professional Provider, the hours worked, the applicable fees owed by Facility, including the final Bid Fee and Service Fee as may be adjusted by ShiftKey, and any other fees or costs for which the Facility may be responsible under this Agreement or the Services Agreement, if any and process payment to the Professional Provider.
  • 5.1.5. ShiftKey invoices Facility, on its own behalf and on behalf of the applicable Professional Provider, for all amounts Facility owes to ShiftKey and the applicable Professional Provider for a Shift. When the Facility makes a payment to us for a Shift, we in turn make payment to the Professional Provider for the Shift. We will charge the Professional Providers for their use of the Platforms and Services by taking a small percentage of the amounts charged Facility, as agreed to by the Professional Provider and ShiftKey. Notwithstanding anything to the contrary herein, nothing in this Agreement shall be considered to deem ShiftKey a healthcare professional or a provider of any healthcare services.
• 5.2. Credit Limit
• ShiftKey will set a credit limit for each Facility that sets the total dollar value of all not-yet-paid-for Shifts the Facility may schedule and have fulfilled at any given time (“Credit Limit”). When the Facility makes payment to ShiftKey for an invoice, such payment received by ShiftKey will be applied towards the Credit Limit and will pay down the balance of the Credit Limit. If the aggregate amount of all fees and costs associated with your Facility’s requested or scheduled Shifts meets the Credit Limit, ShiftKey may, at its sole discretion, immediately cease providing the Services to your Facility or limit or deactivate any or all of the Authorized User Accounts associated with your Facility. ShiftKey will notify the Facility once the Facility has met its Credit Limit, but it is the Facility’s sole responsibility to monitor its Credit Limit.
• 5.3. Shift Disputes
• If there are issues with a Professional Provider during a Shift, these instances are called “Shift Disputes.” A Shift Dispute includes, but is not limited to, the following:
• • The Professional Provider was incapable of performing the services agreed to for the Shift.
  • The Professional Provider inaccurately input into the ShiftKey system the hours worked during a Shift and, as a result, you were overbilled for the work.
  • During the Shift, the Professional Provider did not comply with safety or health standards that were required given the nature of the particular Shift.
• • 5.3.1 How to file a Shift Dispute
  • In order to submit a valid claim for a Shift Dispute the Facility is required to meet each of the following conditions:
  • • The Facility must report the Shift Dispute to ShiftKey in writing (at help@shiftkey.com) and provide ShiftKey with information (including any applicable evidence as to the events, conditions, and circumstances giving rise to the applicable Shift Dispute) about the Shift and the circumstances of the Shift Dispute within ten (10) days after the day on which the Shift that is the subject of the Shift Dispute is completed or otherwise ended;
    • The Facility must respond to any requests by ShiftKey for additional information or cooperation on the Shift Dispute;
    • The Facility must not have directly or indirectly caused, in whole or in part, the events, conditions, or circumstances giving rise to the Shift Dispute; and
    • If the Shift Dispute began during the Shift, the Facility must have used reasonable efforts to try to remedy the events, conditions, or circumstances giving rise to the Shift Dispute with the Professional Provider prior to making a claim for a Shift Dispute (and the Facility must provide evidence of having done so).
  • If a Facility submits a Shift Dispute, ShiftKey will investigate the matter. After the investigation, ShiftKey may, at its sole discretion, adjust the Facility’s invoice, grant a credit, or refund the Facility up to the amount paid by the Facility through the Shift, as determined by ShiftKey. All determinations of ShiftKey with respect to the Shift Dispute refunds, credits, or adjustments, including without limitation the size of any refund, credit, or adjustment shall be final and binding on the Facility and the Professional Provider.
• 5.4. Cancellation
• • 5.4.1. A Facility may cancel an accepted and scheduled Shift without incurring any fees or penalties up to two (2) hours prior to the start time of the applicable Shift. In the event that a Facility cancels an accepted and scheduled Shift within two (2) hours of the scheduled start time indicated in the applicable Shift listing or if the Facility cancels a Shift after a Professional Provider has arrived and begun fulfilling such Shift but prior to such Professional Provider having made contact with any patients, the Facility will be obligated to pay a fee in an amount equal to the greater of (a) two (2) hours and (b) the total number of hours actually worked by the Professional Provider, at the applicable rate. If the Facility cancels the Shift after the Professional Provider has made contact with patients on behalf of the Facility, the Facility shall be obligated to pay a fee in an amount equal to the greater of (a) four (4) hours and (b) the total number of hours actually worked by the Professional Provider, at the applicable.
  • 5.4.2. All cancellations over two (2) hours prior to the start of a Shift should be done through the Platforms. All cancellations within two (2) hours prior to the start of a Shift should be communicated to ShiftKey directly at help@shiftkey.com.
  • 5.4.3. Facilities should ensure proper notification settings are enabled under each of their applicable Authorized User Accounts in order to be notified if there has been a change in an approved Shift or if a requested Shift has been approved or modified. ShiftKey is not responsible for Facility notification settings (emails, etc.) or the receipt of any notifications. Facilities are encouraged to elect to receive all email notifications when setting up their online account and should always ensure assignment accuracy through the Platforms.
• 5.5. Registration and Eligibility to Use the Services
• • 5.5.1. You may view Content (as defined below) on the Platforms without registering for an account with ShiftKey, but as a condition of accessing or using certain aspects of the Platforms and/or Services, including scheduling a Shift for your Facility, you are required to create an Authorized User Account and select a screen name (“User ID”) and password. You shall provide accurate, complete, and updated registration information to create, access, and use your Authorized User Account. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination or deactivation of your Authorized User Account.
  • 5.5.2. You are solely responsible for activity that occurs on or through your Authorized User Account and for maintaining the confidentiality of your password for the Platforms. You shall never use the ShiftKey account of another person, even another Authorized User of your Facility, or 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.
  • 5.5.3. You shall not use as a User ID or any name or term that: (i) is the name of another person or entity, with the intent to impersonate that person or entity; (ii) is subject to any rights of another person or entity, without appropriate authorization; or (iii) is offensive, vulgar, or obscene to a reasonable person. If for any reason ShiftKey determines, in its sole discretion, that you have failed to follow these rules, we reserve the right to terminate your ShiftKey account, suspend or terminate any or all Shift(s) that have been requested or approved through such ShiftKey account, and/or prohibit any and all current or future access or use of the Platforms and/or Services (or any portion thereof) from or through any Authorized User Account associated with your Facility, and if necessary bring a lawsuit against you for any damages caused by your inaccurate or false information.
  • 5.5.4. ShiftKey may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law, and the right to access or use the Platforms and Services is revoked in those jurisdictions.
  • 5.5.5. You hereby agree that ShiftKey shall not be liable for any loss or damage arising from or connected to your failure to comply with this section. Regardless of whether you create an Authorized User Account, you are still subject to the terms and conditions set forth in this Agreement covering your access and use of the Platforms and Services.

6. License Grant; Restrictions; and Rules and Conduct

• 6.1. License Grant
• Subject to the terms and conditions of this Agreement and in connection with the Services Agreement, ShiftKey hereby grants to Facility a non-exclusive, non-transferable license for the Facility, through its Authorized Users on behalf of such Facility, to access the Platforms so that the Facility can use the Services in strict accordance with this Agreement, throughout the Term (as defined in the applicable Services Agreement). You may only access or use the Platforms 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.
• 6.2. Restrictions
• • 6.2.1. As a condition of your access or use of the Platforms and/or Services, you promise not to access or use the Platforms 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 Platforms or Service.
  • 6.2.2. 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 Platforms and/or Services in any way; (b) modify or make derivative works based upon the Platforms and/or Services; (c) improperly use the Platforms and/or Services, including creating internet “links” to any part of the Platforms, “framing” or “mirroring” any part of the Platforms on any other websites or systems, or “scraping” or otherwise improperly obtaining data from Platforms; (d) reverse engineer, decompile, modify, or disassemble the Platforms, 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 Platforms 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 Platforms 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 Platforms; (iv) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platforms, the servers on which the Platforms are stored, or any server, computer, database, system or network connected to the Platforms; or (v) otherwise attempt to interfere with the proper working of the Platforms.
  • 6.2.3. ShiftKey reserves the right to deactivate or otherwise restrict you or your Facility from accessing or using the Platforms and/or Services in the event of a violation or alleged violation of this Agreement, your disparagement of ShiftKey or any of its affiliates, or your acts that cause harm to ShiftKey or its affiliates’ respective brand, reputation or business, as determined by ShiftKey in its sole discretion. We reserve the right to investigate and take appropriate legal action, including without limitation, cooperating with and assisting law enforcement or government agencies in any resulting investigations of illegal conduct.
  • 6.2.4. 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 (as defined below) support requests; or (v) protect the rights, property or safety of ShiftKey, its Users and the public.
• 6.3. Your Use of the Platforms and Services.
• • 6.3.1. ShiftKey retains the right to terminate, deactivate, or otherwise restrict you from accessing or using your Authorized User Account, the Platforms, or the Services in the event of a violation or alleged violation of this Agreement, your disparagement of ShiftKey or any of its affiliates, or your act or omission that causes harm to ShiftKey’s or its affiliates’ respective brand, reputation or business, as determined by ShiftKey in its sole discretion.
  • 6.3.2. You may use the Platforms 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 Platforms and/or Services:
  • • 6.3.2.1. 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).
    • 6.3.2.2. 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.
    • 6.3.2.3. To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the content standards set forth in Section 9 of this Agreement.
    • 6.3.2.4. 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.
    • 6.3.2.5. 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).
    • 6.3.2.6. To engage in any other conduct that reasonably restricts or inhibits anyone's use or enjoyment of the Platforms 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 Platforms or Services in any manner.
    • 6.3.2.7. Reverse engineer any aspect of our Platforms 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 Platforms or Services.
    • 6.3.2.8. Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Platforms or Services that you are not authorized to access.
    • 6.3.2.10. Develop or use any third-party applications that interact with our Platforms or Services without our prior written consent, including any scripts designed to scrape or extract data from our Platforms or Services.
  • 6.3.3. Apple iOS. If you use the Platforms on an Apple phone or mobile device, you and ShiftKey acknowledge that 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 Platforms or your possession or use of the Platforms. In the event of any failure of the Platforms to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price (if any) for the Platforms to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platforms. In addition, Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platforms. In the event of any third party claim that the Platforms or your possession and use of the Platforms 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.
• 6.4. 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 agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
• 6.5. Updates.
• Periodically, ShiftKey may incorporate product updates and new releases with respect to the Platforms 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. You may be required to periodically upgrade to a new version of the Platforms or Services or the operating system of your mobile device. ShiftKey shall not be responsible for your mobile device failing to meet the applicable hardware or software requirements of the Platforms or Services and you agree that you may have to procure a new mobile device in order to continue using the Platforms or Services. SHIFTKEY SHALL HAVE NO OBLIGATION TO CONTINUE TO SUPPORT OR MAKE AVAILABLE PRIOR VERSIONS OF THE PLATFORMS OR SERVICES.

7. Termination of Usage

• 7.1. Termination Without Cause.
• Each Authorized User has the ability to terminate their Authorized User Account at any time for any reason, or for no reason at all. Notwithstanding the foregoing, you may still be charged fees in accordance with the cancellation policy under Section 5 or for outstanding payment obligations. Correspondingly, ShiftKey may terminate or delete any Authorized User Account or otherwise suspend your access to or use of the Platforms and/or Services at any time and for any reason.
• 7.2. Amendment to Platforms and/or Services.
• ShiftKey reserves the right to change, limit, suspend, or discontinue the Platforms and/or Services (including, but not limited to, the availability of any feature, database, or Content) at any time for any reason. You agree that ShiftKey shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Platforms and/or Services.
• 7.3. Termination of Agreement; Survival.
• Following termination or deactivation of all of the Authorized User Accounts associated with a Facility, such Facility’s license that is granted hereunder, including under the applicable Services Agreement, automatically terminates, and ShiftKey has no obligation to provide you with access to or use of the Platforms and/or Services. You agree that even upon termination or deactivation of your Authorized User Account any fees paid to ShiftKey are non-refundable. 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.

8. Third-Party Services

• 8.1. Dealings with Third Parties.
• The Platforms may permit you to link to other websites or resources on the internet. Links on the Platforms to third party websites, if any, are provided only as a convenience to you. If you use these links, you will leave the Platforms. The inclusion on another website of any link to the Platforms does not imply control of, endorsement by, or affiliation with ShiftKey. Your dealings with third parties through links to such third-party websites are solely between you and such third parties. You agree that ShiftKey will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. ShiftKey expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third-party website or application.

9. ShiftKey Intellectual Property and User Contributions

• 9.1. Intellectual Property.
• • 9.1.1. The Platforms and each 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 (collectively, “ShiftKey Data”) and all other information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), including 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 Platforms and/or Services conveys or grants to you any rights in or related to the Platforms, 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 in any manner 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 (the “ShiftKey Marks and Names") 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.
  • 9.1.2. Through the Platforms, email, websites, and other media, the Services make accessible to you 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 (collectively, the “Content”). Users of the Platforms and/or Services (collectively, “Users”) may have the ability to contribute, add, create, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible (“Submit”) Content.
• 9.2. User Contributions.
• • 9.2.1. ShiftKey or any of its third party partners and its affiliates, may ask you for Feedback (as defined below) on your experience with the Platforms and/or Services. ShiftKey shall become the owner of any reviews, comments, suggestions or other feedback regarding the Platforms and/or Services posted to the Platforms or on ShiftKey's social media pages (collectively, "Feedback") and it 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 Platforms 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 the User Contributions (as defined below).
  • 9.2.2. Platform Uploads and Posts.
  • • 9.2.2.1. The Platforms may contain certain functions or features that allow you to post, submit, publish, display, transmit, or otherwise make available to other Users, persons, or entities, including ShiftKey, (hereinafter, “Post”) information, content, or materials, including Feedback, on or through the Platforms or you may otherwise post such information, content, or materials on ShiftKey’s social media pages (collectively, “User Contributions”). All User Contributions must comply with the content standards set forth in Section 9 of this Agreement. Any User Contribution you post to the Platforms or ShiftKey’s social media pages will be considered non-confidential and non-proprietary. By posting any User Contribution on the Platforms 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 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.
    • 9.2.2.2. You represent and warrant that:
    • • 9.2.2.2.1. You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and its affiliates and service providers, and each of their and its respective licensees, successors, and assigns;
      • 9.2.2.2.2. All of your User Contributions do and will comply with this Agreement;
      • 9.2.2.2.3. You understand and acknowledge that 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; and
      • 9.2.2.2.4. 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 Platforms.
  • 9.2.3. Ratings
  • Notwithstanding anything to the contrary in this Agreement, ShiftKey and its affiliates reserve the right to use, share and display your User Contributions, including Professional Provider ratings and comments, in any manner in connection with the business of ShiftKey and its affiliates without attribution to you or your approval.
  • 9.2.4. Monitoring and Enforcement.
  • • 9.2.4.1. We have the right to:
    • • 9.2.4.1.1. Remove or refuse to post any User Contributions for any or no reason in ShiftKey’s sole discretion.
      • 9.2.4.1.2. Take any action with respect to any User Contribution that ShiftKey deems necessary or appropriate in its sole discretion, including if we believe that such User Contribution violates this Agreement, including the content standards set forth in Section 9 of this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Platforms and/or Services or the public, or could create liability for ShiftKey.
      • 9.2.4.1.3. Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
      • 9.2.4.1.4. Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platforms and/or Services.
      • 9.2.4.1.5. Terminate or suspend your, or any of your Facility’s other Authorized User’s, access to all or part of the Platforms for any or no reason, including without limitation, any violation of this Agreement.
    • 9.2.4.2. Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Platforms. YOU WAIVE AND HOLD HARMLESS SHIFTKEY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
    • 9.2.4.3. We do not undertake to review all material before it is posted on the Platforms, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
  • 9.2.5. Content Standards.
  • • 9.2.5.1. These content standards apply to any and all User Contributions and use of the Platforms. 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:
    • • 9.2.5.1.1. Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable to a reasonable person.
      • 9.2.5.1.2. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
      • 9.2.5.1.3. Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
      • 9.2.5.1.4. 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.
      • 9.2.5.1.5. Be likely to deceive any person.
      • 9.2.5.1.6. Promote any illegal activity, or advocate, promote, or assist any unlawful act.
      • 9.2.5.1.7. Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other reasonable person.
      • 9.2.5.1.8. Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
      • 9.2.5.1.9. Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
      • 9.2.5.1.10. Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

10. Representations and Warranties; Disclaimers

• 10.1. Provider Representations and Warranties.
• You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term of this Agreement will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all governmental or regulatory authorizations necessary to access or use the Platforms and/or Services.
• 10.2. Disclaimer of Representations and Warranties.
• • 10.2.1. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF AND ACCESS TO THE PLATFORMS AND/OR SERVICES 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 PLATFORMS AND/OR SERVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY QUALIFIED PROFESSIONAL PROVIDERS BEING AVAILABLE TO FULFILL A SHIFT. SHIFTKEY AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICES PROVIDER ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE PROFESSIONAL PROVIDERS WHO MAY REQUEST OR PROVIDE HEALTHCARE SERVICES TO YOU, AND SHIFTKEY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE PROFESSIONAL PROVIDERS EXCEPT AS EXPRESSLY SET FORTH HEREIN. BY USING THE PLATFORMS AND/OR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE PLATFORMS AND/OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SHIFTKEY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
  • TO THE FULLEST EXTENT PROVIDED BY LAW, WE 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.
  • 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.
  • 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.
  • THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  • SHIFTKEY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE PLATFORMS AND/OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT 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.
• 10.3 Privacy.
• Please review our Privacy Policy (https://app.shiftkey.com/privacy-policy-clients) for information about how ShiftKey collects, uses, and discloses information through the App. We reserve the right to modify our privacy policy from time to time.

11. Limitation of Liability

• 11.1. Limited Liability.
• 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 PLATFORMS AND/OR SERVICES, ANY WEBSITES LINKED TO A 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 PLATFORMS 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.

12. Dispute Resolution

• In the event a problem or dispute arises related to your access or use of the Platforms and/or Services, you acknowledge and agree that you will provide ShiftKey with written notice of such problem or dispute within thirty (30) days of the occurrence of the event, act, omission, or issue giving rise to such problem or dispute by sending an email to: help@shiftkey.com or by mail to ShiftKey, Attention: LEGAL, 5221 North O'Connor Boulevard Suite 1400, Irving, TX 75039.

13. Indemnification and Release

• 13.1. Indemnification.
• 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 LIABILITIES, JUDGMENTS, AWARDS, LOSSES, COSTS, EXPENSES (INCLUDING REASONABLE LEGAL FEES), DAMAGES, PENALTIES, FINES, FEES, SOCIAL SECURITY CONTRIBUTIONS AND TAXES (COLLECTIVELY, “CLAIMS”) ARISING OUT OF OR RELATED TO YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE PLATFORMS, 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. 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.
• 13.2. Release.
• You hereby agree to indemnify ShiftKey for any claims made by a Professional Provider or your Facility against each other for any services provided through the Services or for any reason whatsoever. You hereby agree to indemnify and hold harmless ShiftKey, its related entities, affiliates, and their directors, officers, managers, employees, donors, agents, and licensors, from and against any and all Claims resulting from any violation of this Agreement. 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.
• To the fullest extent permitted by applicable law, you release ShiftKey and the other ShiftKey Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.

14. Assignment

• This Agreement is personal to you, and is not assignable or transferable by you except with ShiftKey's prior written consent. Any assignment in violation of this Section 14 shall be null and void. ShiftKey may freely assign, transfer, or delegate this Agreement or any of its rights and obligations hereunder at any time.

15. 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, you acknowledge and agree that any and all actions taken by a Facility’s Authorized Users with respect to the Platforms and/or Services shall be binding upon the Facility.

16. Notice Policy and Your Consent

• 16.1. Counterparty.
• Under this Agreement you are contracting with ShiftKey, LLC, a Texas limited liability company.
• 16.2. Notice.
• • 16.2.1. 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 Facility, as applicable, at the address set forth in the Services 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 all notices required to be 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.
  • 16.2.2. 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 an Authorized Representative of Facility, through the Platforms by posting on the Platforms or on a portal that is available through the Platforms.

17. Geographic Limits of Service; Arbitration of Disputes; Governing Law; Venue

• 17.1. Geographic Limits of Service.
• • 17.1.1. ShiftKey is based in the State of Texas in the United States. We provide the Platforms and Services for use only by persons and healthcare facilities located in the United States, with the exception of the State of California. ShiftKey makes no claim or representation that any information, documentation, or materials contained on or accessible through the Platforms or any products or services described or offered on or through the Platforms and/or Services are appropriate or available for use in jurisdictions outside the United States or in the State of California, or that this Agreement comply with the laws of any other country or the State of California. Accessing or using the Platforms or Service is prohibited from territories where the Content is illegal. If you access the Platforms from other locations, you do so at your own initiative and are responsible for compliance with local laws. You agree that you will not access the Platforms and/or Services from any territory or jurisdiction where the contents are illegal, and that if you do so in violation of this Agreement, you do so at your own initiative and you, and not ShiftKey, are responsible for compliance with applicable local laws.
  • 17.1.2. ShiftKey reserves the right, at any time in its sole discretion, to limit, restrict, or terminate the availability or accessibility of the Platforms and/or Services to any person, entity, geographic area, or jurisdiction we so desire.
• 17.2. Arbitration of Disputes.
• • 17.2.1. YOU AND SHIFTKEY RESPECTIVELY AGREE TO WAIVE THE RIGHT TO SEEK REMEDIES IN COURT, INCLUDING ANY RIGHT TO A JURY TRIAL. YOU AND SHIFTKEY AGREE THAT ANY DISPUTE BETWEEN OR AMONG THEM OR THEIR SUBSIDIARIES, AFFILIATES OR RELATED ENTITIES ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, WILL BE RESOLVED IN ACCORDANCE WITH A TWO-STEP DISPUTE RESOLUTION PROCEDURE INVOLVING: (1) STEP ONE: NON-BINDING MEDIATION, AND (2) STEP TWO: BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTION 1 ET. SEQ., OR STATE LAW, WHICHEVER IS APPLICABLE. ANY SUCH MEDIATION OR ARBITRATION HEREUNDER SHALL BE CONDUCTED IN ANY FORUM AND FORM AGREED UPON BY THE PARTIES OR, IN THE ABSENCE OF SUCH AN AGREEMENT, UNDER THE AUSPICES OF THE JAMS (F/K/A THE JUDICIAL ARBITRATION AND MEDIATION SERVICE) (“JAMS”) PURSUANT TO THE THEN CURRENT COMPREHENSIVE ARBITRATION RULES & PROCEDURES (A COPY OF WHICH IS AVAILABLE THROUGH JAMS’ WEBSITE, WWW.JAMSADR.ORG) (THE “JAMS RULES”). YOU MAY ALSO CALL JAMS AT 1-800-352-5267 IF THERE ARE ANY QUESTIONS CONCERNING THE ARBITRATION PROCESS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE JAMS RULES, THE MEDIATION PROCESS (STEP ONE) MAY BE ENDED BY EITHER PARTY TO THE DISPUTE UPON NOTICE TO THE OTHER PARTY THAT IT DESIRES TO TERMINATE THE MEDIATION AND PROCEED TO THE STEP TWO ARBITRATION; PROVIDED, HOWEVER, THAT NEITHER PARTY MAY SO TERMINATE THE MEDIATION PROCESS PRIOR TO THE OCCURRENCE OF AT LEAST ONE (1) MEDIATION SESSION WITH THE MEDIATOR. NO ARBITRATION SHALL BE INITIATED OR TAKE PLACE WITH RESPECT TO A GIVEN DISPUTE IF THE PARTIES HAVE SUCCESSFULLY ACHIEVED A MUTUALLY AGREED TO RESOLUTION OF THE DISPUTE AS A RESULT OF THE STEP ONE MEDIATION. THE MEDIATION SESSION(S) AND, IF NECESSARY, THE ARBITRATION HEARING SHALL BE HELD IN THE STATE OF TEXAS OR ANY OTHER LOCATION MUTUALLY AGREED BY THE PARTIES. THE ARBITRATION (IF THE DISPUTE IS NOT RESOLVED BY MEDIATION) WILL BE CONDUCTED BY A SINGLE JAMS ARBITRATOR, MUTUALLY SELECTED BY THE PARTIES, AS PROVIDED FOR BY THE JAMS RULES. IF REQUIRED BY LAW, THE COMPANY WILL BE RESPONSIBLE FOR THE JAMS CHARGES, INCLUDING THE COSTS OF THE MEDIATOR AND ARBITRATOR, OTHERWISE THE PARTIES WILL SHARE SUCH CHARGES EQUALLY. YOU AND SHIFTKEY AGREE THAT THE ARBITRATOR SHALL APPLY THE SUBSTANTIVE LAW OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS) TO ALL STATE LAW CLAIMS AND FEDERAL LAW TO ANY FEDERAL LAW CLAIMS, AND THAT DISCOVERY SHALL BE CONDUCTED IN ACCORDANCE WITH THE JAMS RULES OR AS OTHERWISE PERMITTED BY LAW AS DETERMINED BY THE ARBITRATOR. THE ARBITRATOR’S AWARD SHALL CONSIST OF A WRITTEN, REASONED STATEMENT AS TO THE DISPOSITION OF EACH CLAIM AND THE RELIEF, IF ANY, AWARDED ON EACH CLAIM. YOU UNDERSTAND THAT THE RIGHT TO APPEAL OR TO SEEK MODIFICATION OF ANY RULING OR AWARD BY THE ARBITRATOR IS LIMITED UNDER STATE AND FEDERAL LAW. ANY AWARD RENDERED BY THE ARBITRATOR WILL BE FINAL AND BINDING, AND JUDGMENT MAY BE ENTERED ON IT IN ANY COURT OF COMPETENT JURISDICTION IN TEXAS, AT THE TIME THE AWARD IS RENDERED OR AS OTHERWISE PROVIDED BY LAW.
  • 17.2.2. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGREEMENT TO ARBITRATE SET FORTH IN THIS SECTION 17 COVERS ALL GRIEVANCES, DISPUTES, CLAIMS OR CAUSES OF ACTION THAT OTHERWISE COULD BE BROUGHT IN A FEDERAL, STATE OR LOCAL COURT OR AGENCY UNDER APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, ARISING OUT OF OR RELATING TO YOUR BUSINESS RELATIONSHIP WITH SHIFTKEY (OR THE SEPARATION THEREOF), INCLUDING ANY CLAIMS YOU MAY HAVE AGAINST THE SHIFTKEY OR AGAINST ITS OFFICERS, DIRECTORS, SUPERVISORS, MANAGERS, EMPLOYEES, OR AGENTS IN THEIR CAPACITY AS SUCH OR OTHERWISE. THE CLAIMS COVERED BY THE AGREEMENT TO ARBITRATE IN THIS SECTION 17 INCLUDE CLAIMS FOR BREACH OF ANY CONTRACT OR COVENANT (EXPRESS OR IMPLIED), TORT CLAIMS, CLAIMS FOR COMPENSATION DUE, AND CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE, LOCAL OR OTHER GOVERNMENTAL LAW, STATUTE, REGULATION, OR ORDINANCE.
  • 17.2.3. YOU EXPRESSLY INTEND AND AGREE THAT: (I) CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED, NOR WILL THEY APPLY, IN ANY ARBITRATION PURSUANT TO THIS AGREEMENT; (II) YOU AND SHIFTKEY WILL NOT ASSERT CLASS ACTION OR REPRESENTATIVE CLAIMS AGAINST THE OTHER IN ARBITRATION OR OTHERWISE; AND (III) YOU AND SHIFTKEY SHALL ONLY SUBMIT THEIR OWN, INDIVIDUAL CLAIMS IN ARBITRATION AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON. FURTHER, YOU AND SHIFTKEY EXPRESSLY INTEND AND AGREE THAT ANY CLAIMS BY YOU SHALL NOT BE JOINED, CONSOLIDATED, OR HEARD TOGETHER WITH CLAIMS OF ANY OTHER PERSON.
  • 17.2.4. BY CONSENTING TO THIS AGREEMENT, YOU EXPRESSLY REPRESENT THAT: (I) YOU HAVE BEEN GIVEN THE OPPORTUNITY TO FULLY REVIEW AND COMPREHEND THIS AGREEMENT; (II) YOU UNDERSTAND THE TERMS OF THIS AGREEMENT AND FREELY AND VOLUNTARILY CONSENT TO BE BOUND TO THIS AGREEMENT; AND (III) YOU FULLY UNDERSTAND AND AGREE THAT THE YOU ARE GIVING UP CERTAIN RIGHTS OTHERWISE AFFORDED TO YOU BY CIVIL COURT ACTIONS, INCLUDING THE RIGHT TO A JURY TRIAL.
  • 17.2.5. NOTHING CONTAINED IN THIS SECTION 17 SHALL RESTRICT EITHER PARTY FROM SEEKING TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF IN A COURT OF LAW. FURTHER, FOR THE AVOIDANCE OF DOUBT, THE PARTIES AGREE THAT, NOTHING HEREIN, NOR ANYTHING IN THE JAMS RULES, SHALL PERMIT ANY ARBITRATOR TO DETERMINE THE ARBITRABILITY OF ANY APPLICATION FOR TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF. FINALLY, ANY QUESTIONS REGARDING THE ENFORCEABILITY OF THIS PROVISION SHALL BE WITHIN THE EXCLUSIVE JURISDICTION OF THE ARBITRATOR TO DECIDE.
• 17.3. GOVERNING LAW.
• 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.

18. 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.

19. Integration and Severability; Interpretation.

• 19.1. Integration and Severability.
• This Agreement and other referenced material and the applicable Services Agreement constitutes the entire agreement between you and ShiftKey with respect to the access or use of the Platforms and/or Services. In the event of any conflict between the Services Agreement and this Agreement, the Services Agreement shall govern; provided, however, if such conflict is with regard to Sections, 10, 11, or 13 hereof, the provisions of this Agreement shall control unless the Services Agreement expressly recognizes the direct conflict and states that the Services Agreement shall control. 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.
• 19.2. Interpretation.
• In this Agreement: (a) the words “including” and “include” mean “including, but not limited to.” (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (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; and (e) each reference herein to any gender includes the masculine, feminine and neuter where appropriate. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

20. 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.

21. Modification.

• 21.1. Modification of Agreement.
• ShiftKey may revise and update this Agreement 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 Agreement. An Authorized User’s continued use of the Platforms and/or Services following the posting or emailing of the revised Agreement shall constitute such Authorized User’s and that Authorized User’s Facility’s acceptance of and agreement with such revisions and updates. We will notify you of any changes by posting the updated Agreement on the Platforms or by emailing you in accordance with this Agreement. Updated versions of this Agreement will never apply retroactively and the updated Agreement will give the exact date it goes into effect. Significant changes, as determined by ShiftKey in its sole reasonable discretion, will go into effect no less than thirty (30) days after we notify you. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.
• 21.2. Modification of Platform Content.
• We may update the content on the Platforms from time to time, but their content is not necessarily complete or up-to-date. Any of the material on a Platform may be out of date at any given time, and we are under no obligation to update such material.

22. Contact

• 22.1. ShiftKey Contact Information.
• If you have any questions regarding this Agreement, please contact us at help@shiftkey.com or by mail at ShiftKey LLC, Attention: ShiftKey Facility Support, 5221 North O'Connor Boulevard Suite 1400, Irving, TX 75039.
• I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE APPLICABLE SERVICES AGREEMENT, AND AGREE THAT MY ACCESS OR USE OF THE PLATFORMS AND SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE APPLICABLE SERVICES AGREEMENT.
• End.