Last Updated: September 6, 2023

Terms of Service

This ShiftKey LLC (“ShiftKey” or the “Company”) Terms of Service (this “Agreement”) is made and entered into by and between you, a self-employed individual or independent contractor who is a licensed healthcare provider (“you”), and ShiftKey, a technology company that provides a technology platform where healthcare facilities and self-employed or independent contractor health care service providers, such as yourself, to 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.ShiftKey’s Platform facilitates proof of credentials and payments from healthcare facilities to self-employed or independent contractor health care service providers. ShiftKey has no involvement in the relationship between the self-employed or independent contractor health care service provider and healthcare facility.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 an employer, and is not affiliated with any of the self-employed or independent contractor health care providers or healthcare facilities who use its platform.

Recitals

You as a self-employed individual or independent contractor for healthcare facilities may independently determine if you provide services to any particular healthcare facility, when you provide services, the amount of time you spend providing services in any given day or week, with whom you contract or do not contract, and the rate at which you will be paid.
ShiftKey provides certain lead generation services between Facilities (as defined in Section 1.3 below) that are seeking healthcare services, and you, a self-employed individual or independent contractor licensed provider of healthcare services, to potentially provide such healthcare services through the use of the Services (as defined in Section 1.6 below).
You acknowledge and agree that ShiftKey is a technology services provider that does not provide healthcare services nor does it employ healthcare providers who utilize its technology programs.
The purpose of this Agreement is to set the terms regarding your access to and use of ShiftKey’s Services and its technology programs which includes: (1) ShiftKey’s online platforms locate at www.shiftkey.com and all pages accessible through such site (“Site”); (2) ShiftKey’s mobile application, and (3) all other read BY CLICKING TO ACCEPT OR AGREE TO THE TERMS OF THIS AGREEMENT WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THIS AGREEMENT. IF YOU DO NOT WANT TO BE BOUND TO THIS AGREEMENT, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH HEREIN, YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES.
You also acknowledge that you (a) are 18 years of age or older, (b) 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, (c) 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, (d) do not have more than one Account, and (e) 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 Platform 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. By using the Platform and/or Services, you represent and warrant that you are of legal age to form a binding contract with ShiftKey and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform or Services.

Based on these aforementioned Recitals, which are hereby incorporated into made a part of this Agreement, you and ShiftKey agree as follows:

1. Select Definitions

1. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
2. “Company Data” means all data related to the access and use of the Services hereunder, including all data related to the provision of Shifts via the Services and Facility Information.
3. “Facility” means an entity that operates a healthcare facility and/or the entity that provides healthcare services to patients (including but not limited dentistry, physical therapy, occupational therapy, respiratory therapy, speech therapy) that is authorized by ShiftKey to use the Services for the purpose of obtaining Healthcare Services offered by you.
4. “Facility Information'' means information about a Facility made available to you in connection with such Facility’s request for and use of Healthcare Services which may include the Facility’s name, address, contact information, and a description of a particular service need.
5. “Healthcare Services” means the healthcare services provided by you that are requested, bid on, and accepted through the Services.
6. “Services” means the access and use of the Platform and services and functions related thereto, including, ShiftKey’s on-demand lead generation and related services that enable you and Facilities to seek, request, receive, bid on, approve, accept, reject, and/or fulfill on-demand requests for available self-employed individuals or independent contractors who are licensed healthcare providers to perform healthcare services for Facilities seeking healthcare services; such Services include access to the Platform and payment services as described in Section 5 below, and related support services and systems, as may be updated or modified from time to time.
7. “User” is a person who utilizes or accesses Platform or performs Shifts.
8. “Shift” is the provision of Healthcare Services by self-employed individuals or independent contractors who are licensed healthcare providers to a 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, and fulfilled through the use of the Services.
9. “Territory” means the city, metro area, and state in the United States of the location of the Facility at which applicable Shifts are to be fulfilled by self-employed individuals or independent contractors who are licensed healthcare providers; provided, however, in no event shall any Facility or location for a Shift be located in the State of California or Massachusetts.

2. Relationship of the Parties

1. Business Relationship. You acknowledge and agree that your use of the Platform and/or Services creates a direct business relationship between you and ShiftKey. Except as otherwise expressly provided herein with respect to ShiftKey acting as the limited payment collection agent solely for the purpose of collecting payment from Facilities on your behalf, the hereby acknowledge and agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between ShiftKey and you; and (b) no joint venture, partnership, or agency relationship exists between ShiftKey and you.
2. Agency. You hereby acknowledge and agree that you have no authority to bind ShiftKey or its Affiliates and you shall not hold yourself out as an employee, agent or authorized representative of ShiftKey or its Affiliates. Notwithstanding anything to the contrary in this Agreement, where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of ShiftKey, you undertake and agree to indemnify, defend (at ShiftKey’s option) and hold ShiftKey and its Affiliates harmless from and against any claims against or incurred by ShiftKey or any of its Affiliates that are brought against ShiftKey or any of its Affiliates by any person or entity based on such implied agency or representative relationship.
3. Direction; Control. You acknowledge and agree that, in accordance with this Agreement, you may independently determine the Shifts that you are willing to accept and, except as otherwise provided in this Agreement, the rate at which you will be paid. ShiftKey does not, and shall not be deemed to, direct or control you generally or in your fulfillment of any Healthcare Services during a Shift, including in connection with your provision of Healthcare Services, your acts or omissions during, or your operation and/or maintenance of any equipment or property used in fulfilling a Shift. Without limitation of the generality of the foregoing, you acknowledge and agree that ShiftKey does not have the right or authority to direct or control what actions you perform or how you perform such actions in providing the Healthcare Services during a Shift. You and ShiftKey acknowledge and agree that the business relationship between such parties under this Agreement is a temporary, and not permanent, relationship.
4. Use of the Platform and Services. Unless such right is earlier terminated, deactivated, or restricted by ShiftKey in accordance with this Agreement, you retain the sole right to determine when, where, and for how long you will utilize the Platform and Services. You retain the option, via the Platform, to attempt to request, bid on, accept, decline, and/or ignore a Facility’s request for Healthcare Services pursuant to a Shift, or to cancel an accepted or approved Shift in accordance with this Agreement, including the then-current cancellation policies.
5. Non-Exclusive. You acknowledge and agree that, except as expressly prohibited pursuant to this Agreement or otherwise prohibited by applicable law or an applicable Facility’s standards, policies, practices, and procedures, you have complete discretion to provide services or otherwise engage in other business or employment activities other than the fulfillment of Shifts. For the sake of clarity, you understand that, except as expressly prohibited pursuant to this Agreement or otherwise prohibited by applicable law or an applicable Facility’s standards, policies, practices, and procedures, you retain the complete right to; (i) use other software application services related to lead-generation for the provision of healthcare services in addition to the Platform and Services; and (ii) engage in any other occupation or business other than being a provider of healthcare services
6. Branding; Equipment. With the exception of any signage required by applicable law, regulatory authority, requirements related to your Credentials, or an applicable Facility’s standards, policies, practices, and procedures, ShiftKey shall have no right to require you to: (a) display ShiftKey’s or any of its Affiliates’ respective names, logos or colors on any of your equipment or property; or (b) wear a uniform or any other clothing displaying ShiftKey’s or any of its Affiliates’ respective names, logos or colors. You hereby acknowledge and agree that ShiftKey will not be providing you any equipment or training that may be necessary to fulfill a Shift for a Facility.
7. Control. You acknowledge and agree that in providing Services to a Facility on a Shift, ShiftKey has no authority or control over the Services you provide including the quality and method of providing such services nor the day-to-day oversight or supervision of your providing such Services. You further acknowledge and agree that ShiftKey will not provide you with any tools of the trade or other materials in order for you to perform the work on the Shift.

3. Use of the ShiftKey Services

3.1. ShiftKey Account and Profile Creation.
- 3.1.1. Registration. You may view portions of the Services without registering for a ShiftKey account (“Account”) through the Platform, but as a condition of using certain aspects of the Services, including scheduling a Shift, you are required to create an Account by submitting your name, address, phone number, email address, password, credentials, social security number, driver license number, alternative names, and completing the ‘Provider Consent to Background Check’ form. When creating an Account, you shall provide accurate, complete, and current registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your Account and use of the Services.
- 3.1.2. Account Functions. Via your Account, you will be able to set your preferences, upload your licenses, permits, approvals, authority, registrations, certifications, credentials, or other authorizations necessary to perform Healthcare Services (“Credentials”) and other information necessary to use the Services, view Shifts, bid for and accept Shifts, communicate with ShiftKey and Facilities, submit completed Shift confirmations, and otherwise manage your Account. You acknowledge and agree that ShiftKey is authorized to provide or grant Facilities you bid to work for access to view your name, contact information, availability, Credentials, and any other information that may be necessary in order to bid on, request, accept, or fulfill a Shift for such Facilities.
- 3.1.3. Account Maintenance. You are solely responsible for uploading and maintaining your information in your Account. Failure to maintain accurate, complete, and current information in your Account may result in restrictions on your account or account termination.
- 3.1.4. Unauthorized Use. You are solely responsible for activity that occurs on your Account and shall be responsible for maintaining the confidentiality of your password for your Account. You shall never use another person’s Account to accept or complete a Shift or allow another person to use your Account to accept or complete a Shift. If you discover any unauthorized use of your Account, or other known Account-related security breach, you must report it to ShiftKey immediately. You agree that you are responsible for anything that happens through your Account until you terminate or deactivate your Account.
3.2. Online Shift Management Program. ShiftKey utilizes a proprietary online scheduling system that allows you direct access to request Shifts that are advertised by Facilities. All requests, bids, approvals, confirmations, and cancellations for Shifts are done so only through the Platform. You are solely responsible for ensuring the accuracy of your schedule within the Platform.
3.3. Provision of Healthcare Services. When you access the Platform, Facility requests for Healthcare Services during potential Shifts may be made available to you on such Platform if your Account information indicates that you are available during the time period for such Shift and indicate you are available to perform Healthcare Services in the Territory of the Facility making such requests. If you elect to request information about or bid on a Facility’s Shift request, the Platform will allow you to access certain Facility Information, including the Facility’s name, location, and description of the particular Healthcare Services needed. You shall not contact any Facilities or use any Facility’s data or information, including any patient-related information, for any reason other than for the purposes of fulfilling Healthcare Services during a Shift in accordance with applicable law and the Facility’s standards, practices, policies, and procedures. As between ShiftKey and you, you acknowledge and agree that you alone,in conjunction with applicable law and the Facility’s standards, practices, policies, and procedures, and not ShiftKey, shall be responsible for determining the most effective, efficient and safe manner to perform each instance of Healthcare Services.
3.4. Your Relationship with Facilities. You acknowledge and agree that your fulfillment of a Shift for a Facility creates a direct business relationship between you and the Facility. ShiftKey is not responsible or liable for the actions or inactions of a Facility or any of its Affiliates, officers, directors, managers, employees, agents, or patients in relation to you or your activities at the Facility’s location, in connection with your fulfillment of any Shift, or otherwise. You shall have the sole responsibility for any obligations or liabilities to Facilities or third parties that arise from your provision of Healthcare Services in fulfillment of a Shift for such Facility. You acknowledge and agree that you are 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 you, of a Facility, or a third party. You acknowledge and agree that, unless specifically consented to by a Facility, you 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 your fulfillment of such Shift, unless the additional Healthcare Services are in response to an emergency and necessary to prevent harm or further damage.
3.5. Your Use of the Platform and Services.
- 3.5.1. Termination, Deactivation, or Restricted Use. ShiftKey retains the right to terminate, deactivate, or otherwise restrict you from accessing or using your Account, the Platform, and/or the Services in the event of a violation or alleged violation of this Agreement, including repeated failures to complete accepted service requests, 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.
- 3.5.2. Prohibited Uses. 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 or Services:
- 3.5.3. Apple iOS. If you use the Platform 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 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.
3.6. User Contributions.
- 3.6.1. Platform Uploads and Posts. The Platform may contain certain functions or features that allow you to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Platform. All User Contributions must comply with the content standards set forth in Section 3.6.6 of this Agreement. Any User Contribution you post to the Platform will be considered non-confidential and non-proprietary. By providing any User Contribution on the Platform, you grant us and our affiliates and service providers, and each of their and our 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, including the Privacy Policy.
- 3.6.2. 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 Facility ratings and comments, in any manner in connection with the business of ShiftKey and its Affiliates without attribution to you or your approval.
- 3.6.3. Monitoring and Enforcement. We have the right to:
- 3.6.4. Law Enforcement. 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 Platform. 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
- 3.6.5. No Liability. We do not undertake to review all material before it is posted on the Platform, 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.
- 3.6.6. 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
3.7. Background Authorization. You agree that your use of the Services shall be contingent upon successful completion of a drug screen analysis and background check, including but not limited to OIG, GSA, EMR, and County Criminal. In accordance with these terms, you must complete the Provider consent to Background Check form and any state specific consent form(s) (as applicable).
3.8. Availability. ShiftKey does not guarantee the availability of Shifts or any number of Shifts.
3.9. DNR. Do Not Return (“DNR”) is a common term used by both you or the Facility to express the disinterest of having the you perform another Shift for the Facility. At any time, you or a Facility may request a DNR for whatever reason is deemed necessary.
3.10. Sentinel Event. A “Sentinel Event” is defined as an occurrence in which a patient unexpectedly has loss of life or limb. If in direct care of a patient who suffers a Sentinel Event, and after any such emergency related to the Sentinel Event ends, you agree to immediately contact ShiftKey and supply details to the event and its occurrence.
3.11. 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
3.12. 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. You may be required to periodically upgrade to a new version of the Platform 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 Platform or Services and you agree that you may have to procure a new mobile device in order to continue using the Platform or Services. SHIFTKEY SHALL HAVE NO OBLIGATION TO CONTINUE TO SUPPORT OR MAKE AVAILABLE PRIOR VERSIONS OF THE PLATFORM OR SERVICES.

4. Licensure and Shift Requirements

4.1. Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain all Credentials and other any other authorizations and comply with all requirements applicable to you that are necessary to fulfill the Shifts you bid on, request, approve, or accept and to provide the Healthcare Services to Facilities in the Territory for such Shifts; and (b) possess the appropriate and current level of training, expertise and experience to provide such Healthcare Services in a competent, safe, and professional manner with due skill, care and diligence. You acknowledge and agree that you may be subject to certain background checks and/or other investigations from time to time in order to qualify to provide, and remain eligible to provide, Healthcare Services. You acknowledge and agree that ShiftKey reserves the right, at any time in ShiftKey’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Platform or Services if you fail to meet the requirements set forth in this Agreement.
4.2. Documentation To ensure your compliance with all requirements in Section 4.1 above, you must upload to the Platform or otherwise provide to ShiftKey, in a form reasonably satisfactory to ShiftKey, written evidence and sufficient verification of all such Credentials and other documentation and information necessary to fulfill any and all Shifts you bid on, requests, accepts, or approves, prior to your fulfillment of any such Shifts. ShiftKey shall, upon request, be entitled to review such Credentials from time to time, and your failure to provide or maintain any of the foregoing, in complete, accurate, current, and valid form, shall constitute a material breach of this Agreement. ShiftKey reserves the right to independently verify your documentation and information from time to time in any way ShiftKey deems appropriate in its reasonable discretion. You agree that any documentation regarding your Credentials or other information that is provided to ShiftKey on your behalf shall be deemed authorized by you. WE DO NOT REDACT ANY CREDENTIALS OR OTHER DOCUMENTS OR INFORMATION THAT CONTAIN PERSONAL INFORMATION THAT ARE UPLOADED TO A PLATFORM OR OTHERWISE PROVIDED TO US AND ANY DOCUMENTS UPLOADED OR PROVIDED BY YOU ARE DONE SO AT YOUR OWN RISK. ANY SUCH INFORMATION MAY BE USED BY SHIFTKEY IN ACCORDANCE WITH THE PRIVACY POLICY.
4.3. Status of Required Documentation. You are solely responsible for keeping current, valid, and accurate, all required Credentials or other requirements necessary to provide Healthcare Services for Shifts bid on, requested by, accepted, approved, or fulfilled by you. ShiftKey may, but is not required to, notify you when such Credentials or other requirements are approaching expiration. Upon expiration of any of the foregoing (i.e. professional license, CPR, immunizations, etc.) any then scheduled Shifts may be canceled, without any payment to you, by the Facility and/or your Account may be limited, restricted, or deactivated from accessing, bidding on, requested, accepting, or approving any future Shifts until all up to date Credentials and other requirements are received and verified by ShiftKey. Prior to reactivation, restoration, or otherwise return of the foregoing functions and Services, ShiftKey may require additional updated documentation and/or information from you (i.e. updated W-9’s). ShiftKey reserves the right to not reactivate your Account or use of the Services until all such required documentation and information is received and verified by ShiftKey.
4.4. Notice of Disciplinary Action. You agree to notify ShiftKey immediately of any disciplinary or quality assurance proceedings or investigations involving you, including, but not limited to, licensing boards, quality assurance committees, hospitals or other medical facilities and medical societies, and any other proceeding or investigation the result of which might prohibit or otherwise restrict or impair your ability to perform Healthcare Services and/or fulfill Shifts. You further agree to promptly notify ShiftKey in the event any such proceedings or investigations are pending or are instituted, whether or not such proceedings are related to professional services you performed for a Facility using the Services.

5. Financial Terms

5.1. Shift Fee Calculation and Your Payment. Prior to accepting a Shift, you are entitled to set the hourly rate that you wish to be paid for completing the Shift (“Bid Rate”). On the Site, you may bid for Shifts by inputting your Bid Rate, the times that you are available, and your geographic location. If a facility chooses you for a Shift, you will be paid the Bid Rate for the time it took you to complete the Shift (“Bid Fee”) subject to any fees, deductions and/or adjustments pursuant to this Agreement and/or the Cancellation Charges provisions in Section 5.3. The Revenue Sharing Fee (as defined below) plus the Bid Fee will be the total fee charged to the Facility (“Shift Fee”). Bid Fees may be subject to change due to any adjustments or extensions requested by the Facility or the Provider after the Shift has been accepted by the Provider so long as any such adjustment or extension is mutually agreed to by the Provider and the Facility. You acknowledge and agree that the Bid Fee, including any agreed upon fee, adjustment and/or deduction, is the only payment you will receive in connection with each Shift. You: (i) appoint ShiftKey as your limited payment collection agent solely for the purpose of accepting the Bid Fee, and, depending on the Territory and/or if requested by you, applicable taxes and fees from the Facility on your behalf via the payment processing functionality facilitated by the ShiftKey Services; and (ii) agree that payment made by Facility to ShiftKey (or to an Affiliate of ShiftKey acting as an agent of ShiftKey) shall be considered the same as payment made directly by Facility to you. Further, you agree that the Platform Safety Fee may be deducted from the Bid Fee prior to remittance to you along with any other amounts that you have separately agreed to be deducted – the order of any such deductions from the Bid Fee shall be determined exclusively by ShiftKey (as between you and ShiftKey). The Platform Safety Fee is a fee used to offset the costs associated with the systems and services used to ensure the safety of the ShiftKey Platform for all users and may include but is not limited to, costs associated with background checks, drug screens (if applicable), verification of credentials, and fraud detection and prevention.
5.2. Revenue Sharing Fee. In consideration of ShiftKey’s provision of the Services for your use and benefit hereunder, you agree to allow ShiftKey to collect a service fee on a per Shift basis calculated on a variable percentage of the Shift Fee provided to you via email or otherwise made available electronically by ShiftKey from time to time for the applicable Facility or Territory (“Revenue Sharing Fee”). In the event regulations applicable to the Territory in which you fulfill a Shift require taxes to be calculated on the Shift Fee, ShiftKey shall calculate the Revenue Sharing Fee based on the Shift Fee net of such taxes. ShiftKey reserves the right to change the Revenue Sharing Fee (excluding previously placed Bid Fees) at any time in ShiftKey’s discretion and ShiftKey will provide you with notice in the event of such change. Continued use of the Services after any such change in the Revenue Sharing Fee calculation shall constitute your consent to such change.
5.3. Cancellation Charges You acknowledge and agree that Facilities may cancel any Shift that you have accepted and scheduled through the Platform prior to two (2) hours before the scheduled start of the Shift without incurring any financial liability. 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 you have arrived and began fulfilling such Shift but prior to you having made contact with any patients, you will be compensated two (2) hours by Facility or if you worked longer than two (2 hours), then the total number of hours actually worked, at the applicable rate. If the Facility cancels the Shift after you have made contact with patients on behalf of the Facility, you shall be compensated four (4) hours by Facility or if you worked longer than four (4) hours, then the total number of hours actually worked, at the applicable rate. You agree that the foregoing payments are the only payments, if any, that you will be entitled to receive as a result of a Facility canceling a Shift.
5.4. Shift Verification Prior to Payment. Upon completion of any Shift, you shall submit to ShiftKey a properly completed and error free Shift record confirmation, in a form reasonably satisfactory to the Facility, for the Facility’s approval. You must monitor such Shift record verification process through ShiftKey’s online Shift management program on the Platform. Any Shift completed that was not scheduled and verified through the Platform will not be paid or payable by or through ShiftKey.
5.5. Timely Recordation of Shifts. You have up to fifteen (15) days following the completion of any Shift to submit Shift records to ShiftKey for approval from the Facility and payment.
5.6. Methods of Payment. ShiftKey facilitates payments to you from the Facility for Healthcare Services you provide during Shifts via a pay card or Automated Clearing House (“ACH”) deposit.
- 5.6.1. Pay Card. ShiftKey makes payments via direct wire seven days a week onto a Rapid! PayCard. The initial fee you must pay for such card is $7.95 and may be charged a fee if you require a replacement card. For each time that you are paid pursuant to this Agreement via a Rapid! PayCard, there is a $2.95 per transaction fee to load the card.
- 5.6.2. ACH Deposit. ACH deposit payments are distributed each Tuesday. Please note that for shifts completed Friday through Sunday, invoices must be verified by 1:00pm CST on Monday for a payment to be sent out Tuesday of that week. Invoices verified after 1:00 CST on Monday, will be paid the following Tuesday
5.7. Shift Disputes. ShiftKey works hard to make sure that Facilities are happy with the services provided by licensed healthcare providers during Shifts, but we understand that this is not always going to be the case. When a Facility is not satisfied with a licensed healthcare provider’s services that are provided during a Shift, and such dissatisfaction is reported to ShiftKey we may, at our discretion, issue a refund or adjust the Shift Fee, and any components thereof, for such Shift. As a result, this may affect the amount paid to licensed healthcare providers, such as yourself. We call these instances “Shift Disputes.” A Shift Dispute includes, but is not limited to, the following: (a) when the licensed healthcare provider was incapable of or unwilling to adequately perform the services agreed to for the Shift; (b) when the licensed healthcare provider inaccurately inputs the hours worked for a given Shift into the ShiftKey system, on any Shift record confirmation or otherwise, and, as a result, was or may be overpaid for the Shift; (c) if during the Shift, the licensed healthcare provider did not comply with safety or health standards that were required given the nature of the particular Shift or otherwise fails to comply with applicable law or the applicable Facility’s standards, policies, practices, an procedures governing applicable to Provider in the fulfillment of such Shift. If a Facility submits a Shift Dispute, ShiftKey will investigate the matter. After we receive a Shift Dispute, we will contact you for you to provide any information regarding the matter.
5.8. Overpayment. In the event that you are paid more for any Shift than is called for by the Shift Fee, as adjusted pursuant to this Agreement due to any inaccuracies on a Shift record confirmation, as a result of a Shift Dispute, or otherwise, whether through clerical or technological error or otherwise, you agree and understand that ShiftKey may recover the amount of overpayment through deduction(s) from future payments for other Shifts or any other legal means available to ShiftKey. Unless you and ShiftKey otherwise agree in writing to a series of smaller deductions in specified amounts, any such deduction(s) will be equal to, but never exceed, the amount of the overpayment.
5.9. Receipts. As part of the Services, ShiftKey provides you a system through the Platform for the submission of Shift record confirmations for which receipts are then submitted by ShiftKey, on your behalf, to Facilities for Shifts completed. Upon your completion of a Shift for a Facility, and your successful submission of a Shift record confirmation in accordance with this Agreement, ShiftKey prepares an applicable receipt and issues such receipt to the Facility via email on your behalf. Such receipts are also provided to you via email or are available through the Platform. Receipts include the breakdown of amounts charged to the Facility for the Shifts and may include specific information about you, including your name, contact information, as well as a description of the Healthcare Services provided. You must notify ShiftKey, in writing, of any and all errors or inaccuracies in any such receipt within five (5) business days after the earlier of ShiftKey emailing you the applicable receipt or making the applicable receipt available to you on the Platform. Absent such a notice, ShiftKey shall not be liable to you for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Bid Fee or any payments that may be owed to you by the Facility pursuant to this Agreement
5.10. No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, ShiftKey and its Affiliates may seek to attract new Facilities to use the Services and to increase existing Facilities’ use of the Services. Such advertising and marketing may include the use of your information in accordance with the Privacy Policy. You acknowledge and agree such advertising or marketing does not entitle you to any payments or additional monetary amounts beyond the payments or amounts expressly set forth in this Agreement.
5.11. Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities and/or obligations related to your completion of Shifts as required by applicable law; and (b) provide ShiftKey with all relevant tax information. You further acknowledge and agree that you are responsible for the filing and payment of any and all taxes on your own income arising from the performance of Shifts.

6. Cancellation Policy

6.1. Cancellation by You. You may cancel any request or bid for a specific Shift prior to acceptance and/or approval of such Shift by the applicable Facility. Once you are approved or accepted for a specific Shift, you must communicate any cancellations directly with the applicable Facility. Failure to perform an accepted and approved shift may result in deactivation of your account.
6.2. Cancellation by Facility. You acknowledge and agree that Facilities may cancel an otherwise scheduled Shift in accordance with the terms, conditions, and payment obligations, if any, found in Section 5.3 of this Agreement.
6.3. Notification of Canceled Shift. Shift cancellations are done solely through our Platform. You should ensure proper notification settings are enabled in your Account to be notified if there has been a change in an approved or accepted Shift or if a Shift on which you have bid or requested has been approved, accepted, or modified by the applicable Facility. ShiftKey is not responsible for your notification settings (i.e. text messages, emails, etc.) or the receipt of any notifications. You acknowledge and agree that you alone, and not ShiftKey, are responsible for enabling proper notification settings and ensuring your accurate and current contact information is in our Account. Additionally, you alone are responsible for ensuring the accuracy of your Shift schedules and availability on the Platform and the status and fulfillment of all Shifts for which you have requested and/or bid and for which an applicable Facility has accepted or approved.

7. Proprietary Rights; License

7.1. License Grant. Subject to the terms and conditions of this Agreement, ShiftKey hereby grants you, during the term of this Agreement, a limited non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license during the term of this Agreement to: (a) access and use the Platform on your personal device(s) solely in connection with your use of the Services and (b) access and use of content, information, and related materials that may be made available through the Platform solely in connection with your use of the Services. No right, title, or interest in or to the Platform or any content on the Platform is transferred to you, and all rights not expressly granted are reserved by the ShiftKey. Any use of the Platform not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark, and other laws.
7.2. Restrictions. 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 or Services in any way; (b) modify or make derivative works based upon the Platform or Services; (c) improperly use the Platform 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 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.
7.3. Ownership. The Platform and each Platform’s entire contents, features, and functionality (including but not limited to Company 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 intellectual property or proprietary rights laws. Neither this Agreement nor your use of the Platform or Services conveys or grants to you any rights in or related to the Platform, Services, Company 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 confusingly similar mark, name or title, for any goods and services.

8. Confidentiality

8.1. Confidential Information. You hereby acknowledge and agree that in the performance of this Agreement and fulfilling of any Shifts you may have access to or may be exposed to, directly or indirectly, confidential information of ShiftKey, its Affiliates, Facilities, or related third parties ("Confidential Information"). Confidential Information includes Company Data, Facility Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that has been designated as being proprietary or confidential by the disclosing party or owner of such information or of which you should reasonably know that it should be treated as confidential.
8.2. Ownership of Confidential Information. You hereby acknowledge and agree that, except as otherwise provided in this Agreement,: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) you shall not use Confidential Information for any purpose except in furtherance of this Agreement; (c) you shall not disclose Confidential Information to any third party; and (d) you shall return or destroy all Confidential Information,upon the termination of your Account or at the request of the disclosing party (subject to applicable law and, with respect to ShiftKey, its internal record-keeping requirements).
8.3. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order,subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure at disclosing party’s sole cost.
8.4. Protected Health Information. Notwithstanding anything to the contrary herein, you hereby agree and acknowledge that you will comply with all applicable laws regarding and related to the handling of, access to, and dissemination and destruction of protected health information (“PHI”), as that term is defined under applicable law, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), that you may gain access to as a result of providing Healthcare Services under this Agreement. Notwithstanding anything to the contrary herein, you hereby agree and acknowledge that you shall not upload to any Platform or otherwise provide to ShiftKey or its Affiliates any PHI that would violate applicable law, including HIPAA.

9. Privacy

9.1. Information About You and Your Visits to the Platform. Please review our Privacy Policy (https://app.shiftkey.com/privacy-policy-provider) 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.
9.2. Background Checks. . ShiftKey uses a third party service provider to perform background screenings. You acknowledge and agree that we may share any information you provide us with third party background check service providers so that we may obtain a full and accurate background screening. Submitting the Provider Consent to Background Check form is material to this Agreement and you may be denied use of the Services if a complete and accurate form, satisfactory to ShiftKey, submitted by you to ShiftKey.

10. Insurance

10.1. Provider. You agree to maintain, at all times during the term of this Agreement, adequate insurance which provides levels of coverage that may adequately address any injury you may sustain in the course and scope of your fulfilling a Shift (“Occupational Accident Insurance” or “OAI”) and insurance which provides levels of coverage that may address malpractice liability (“Malpractice Insurance”). ShiftKey requires that you maintain: OAI insurance and Malpractice Insurance. ShiftKey provides you the option to: (1) purchase OAI and Malpractice Insurance, which meets the minimum requirements, through ShiftKey at the then current rate per shift or (2) You provide and show proof of OAI and Malpractice Insurance, which meets the minimum requirements.
10.2. ShiftKey. ShiftKey may maintain insurance related to your provision or fulfillment of Shifts as determined by ShiftKey in its reasonable discretion, provided that ShiftKey is not required to provide you with any specific insurance coverage (including, but not limited to, defense of claims) for any loss to you. You are required to promptly notify ShiftKey of any accidents or other incidents that occur while performing Shifts and to cooperate and provide all necessary information related thereto. Notwithstanding anything to the contrary herein, when providing the ShiftKey with such notification, you shall not provide or otherwise disclose to ShiftKey or its Affiliates any PHI in violation of any applicable law, including HIPAA.

11. Representations and Warranties; Disclaimers

11.1. By You. 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 will not enter into, any agreement that would prevent you from complying with this Agreement; (c) you are a trained healthcare provider in the practice of providing healthcare services; (d) you are capable of performing the services required by the Shifts you choose to request, bid on, and/or accept; and (e) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all Credentials and other governmental or regulatory authorizations necessary to perform (i) Shifts pursuant to this Agreement, and (ii) Healthcare Services to third parties in the Territory generally.
11.2. Disclaimer of Warranties. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE AND ACCESS TO THE PLATFORM AND OF THE 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 PLATFORM AND/OR SERVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR HEALTHCARE SERVICES OR SHIFTS. 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 FACILITIES WHO MAY REQUEST OR RECEIVE HEALTHCARE SERVICES FROM YOU, AND SHIFTKEY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE FACILITIES. BY USING THE PLATFORM 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 PLATFORM AND/OR SERVICES. NOTWITHSTANDING SHIFTKEY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 5 ABOVE, 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 PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM 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 PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER SHIFTKEY NOR ANYONE ASSOCIATED WITH SHIFTKEY REPRESENTS OR WARRANTS THAT THE PLATFORM, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR PLATFORM 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 PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PERMITTED BY 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.
11.3. No Service Guarantee. SHIFTKEY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE PLATFORM AND/OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM AND/OR SERVICES MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE PLATFORM 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.

12. Indemnification

12.1. Indemnification. YOU SHALL INDEMNIFY, DEFEND (AT SHIFTKEY’S OPTION) 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 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 FULFILLING ANY SHIFTS PURSUANT TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AS A USER, YOU ARE RESPONSIBLE FOR YOUR OWN MEDICAL DECISIONS AND ACTIONS AND HEREBY AGREE TO INDEMNIFY SHIFTKEY AND SHALL HOLD SHIFTKEY HARMLESS FOR ANY 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 RENDERING OR FAILING TO RENDER HEALTHCARE SERVICES IN ACCORDANCE WITH GOVERNING LAWS AND APPLICABLE PROFESSIONAL STANDARDS.

13. Limits of Liability; Release

13.1. Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, NONE OF SHIFTKEY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS SHALL NOT BE LIABLE UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT, YOUR USE, OR INABILITY TO USE, THE PLATFORM 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. EXCEPT FOR SHIFTKEY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 5 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, 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 OR SERVICES, ANY WEBSITES LINKED TO A PLATFORM, ANY CONTENT ON A PLATFORM OR SUCH OTHER WEBSITES, EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO SHIFTKEY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
13.2. Release. 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. Termination

14.1. Term. The term of this Agreement shall commence on, and be effective as of, the date this Agreement is first accepted by you as set forth herein and will continue until this Agreement is terminated in accordance with the terms and conditions hereof.
14.2. Termination. Except as otherwise provided herein, you can terminate this Agreement with or without cause by providing prior written notice to ShiftKey of such termination. Any termination of the Agreement in accordance with the foregoing shall be effective as of the date of the later of (a) the date on which you delete and deactivate your Account and (b) the day after you have completed your last Shift that has already been scheduled and accepted by a Facility as of the time ShiftKey receives your notice of termination. ShiftKey may terminate this Agreement at any time upon prior written notice to you. Notwithstanding anything to the contrary in this Agreement, ShiftKey may terminate or deactivate your Account and/or terminate this Agreement immediately, without notice, with respect to you in the event you are in violation of this Agreement.
14.3. Effect of Termination. Notwithstanding anything to the contrary herein, Sections 2, 5, 7, 8, 9, 11, 12, 13, 15.2, 15.3, 16.5, 16.7, 16.8, 16.9, 16.11 and 17 of this Agreement shall survive the termination of this Agreement.

15. Miscellaneous Terms

15.1. Non-Discrimination. ShiftKey does not discriminate on the basis of sex, color, race, national origin, religion, gender, gender identity, marital status, age, or sexual orientation.
15.2. Modification. We may revise and update this Agreement from time to time in our sole discretion. In the event ShiftKey revises or updates the terms and conditions of this Agreement, or any Supplemental Terms (as defined below), at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Your continued use of the Platform and/or Services following the posting or emailing of the revised Agreement shall constitute your acceptance of and agreement with such revisions and updates. We will notify you of any changes by posting the updated Agreement on the Platform or by emailing you in accordance with Section 16.9 of this Agreement. Updated versions of the Agreement will never apply retroactively and the updated Agreement will give the exact date they go 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.
15.3. Changes to the Platform. We may update the content on the Platform 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.
15.4. Supplemental Terms. ShiftKey may, in its sole reasonable discretion, determine that supplemental terms will apply to your use of the Platform and/or Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time by ShiftKey in accordance with this Agreement (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
15.5. Waiver and Severability. 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. 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.
15.6. 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 16.6 shall be null and void. ShiftKey may assign, transfer, or delegate this Agreement or any or all of its rights or obligations under this Agreement without consent.
15.7. Entire Agreement; Interpretation.
- 15.7.1. This Agreement, including all Supplemental Terms and the Privacy Policy, constitutes the entire agreement and understanding between you and ShiftKey with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. The recitals are a part of this Agreement.
- 15.7.2. 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.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.
15.8. No Third Party Beneficiaries. Except as expressly provided otherwise, there are no third party beneficiaries to this Agreement and nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
15.9. Notices. Any notice delivered by ShiftKey to you under this Agreement will be delivered by (a) email to the email address designated by you such notices in your Account or (b) by posting on the Platform or on a portal that is available to you through a Platform. Any notice delivered by you to ShiftKey under this Agreement shall be delivered by contacting ShiftKey at help@shiftkey.com. or by mail to ShiftKey LLC, Attn: Provider Support, 5221 North O'Connor Boulevard, Suite 1400, Irving, TX 75039.
15.10. State Specific Terms. There may be additional state specific rights and obligations relating to the provision of the Services. Such rights and obligations shall supersede any terms to the contrary otherwise contained in this Agreement. You acknowledge and agree that you are responsible to know the applicable laws that govern the Healthcare Services you perform in fulfillment of a Shift.
15.11. Geographic Restrictions.. ShiftKey is based in the State of Texas in the United States. We provide the Platform and Services for use only by persons located in the United States, with the exception of the State of California or Massachusetts. We make no claims that the Platform or any of their content is accessible or appropriate outside of the United States or in the State of California or Massachusetts. Access to any Platform may not be legal by certain persons or in certain countries or states. If you access a Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
15.12. 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.

16. Arbitration of Disputes; Choice of Law; Venue; Forum.

16.1. 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.
16.2. 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 BUSINESSRELATIONSHIP 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.
16.3. 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.
16.4. 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.
16.5. 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. Contact

17.1. ShiftKey Contact Information. If you have any questions regarding this Agreement, please contact us at help@shiftkey.com. or by mail at the address below:
ShiftKey LLC
Attention: ShiftKey Provider Support
5221 North O'Connor Boulevard Suite 1400
Irving, TX 75039

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE THAT MY USE OF THE PLATFORM AND/OR SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
End.