4.1. NURSELOOP FEES

 

Section 5 describes what fees you agree to pay to NurseLoop in exchange for NurseLoop providing the Site and Site Services to you and what taxes NurseLoop may collect, as detailed below.

 

5.1 FEES FOR NURSES

 

Service Fees. As set forth in the Fee and ACH Authorization Agreement and the Booking Service Terms, the Nurses will pay NurseLoop a service fee for the use of the Site Services, including the communication, invoicing, reporting, dispute resolution and payment services (the “NurseLoop Service Fees”). The NurseLoop Service Fees (to use the Site Services) are paid solely by the Nurse. When a Facility pays a Nurse for a Shift or when funds related to a Shift are otherwise released to a Nurse as required by the applicable Payment Fulfillment Instructions (See Section 6.1), NurseLoop will credit the Nurse’s Account for the amount paid or released by the Facility, less the NurseLoop Service Fees. The Nurse hereby irrevocably authorizes and instructs NurseLoop to deduct the NurseLoop Service Fees from the payments made by the Facility.

 

5.2 FEES FOR FACILITIES

 

For now, NurseLoop does not impose a fee for payment processing and administration related to the Nurse Fees that Facilities pay to Nurses they engage through the site.

 

Facilities do not pay fees if they use the Site solely for Booking Services.

 

5.3 TAXES

 

NurseLoop may be required by applicable law to collect taxes or levies in the jurisdiction of the Nurse (the "Taxes"). In such instances, any amounts NurseLoop is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to NurseLoop under the Terms of Service.

 

5.4 NO FEE FOR INTRODUCING OR FOR FINDING SHIFTS

 

NurseLoop does not introduce Facilities to Nurses and does not help Nurses secure Shifts. NurseLoop merely makes the Site and Site Services available to enable Nurses to do so themselves and may from time to time highlight Shifts that may be of interest. Therefore, NurseLoop does not charge a fee when a Nurse finds a suitable Facility or finds a Shift. In addition, NurseLoop does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.

 

2.PAYMENT TERMS

 

Section 6 discusses your agreement to pay Nurse Service Fees on Contracts, how the Payment Fulfillment Services work, what happens if a Facility does not pay, and related topics, as detailed below.

6.1 PAYMENT FULFILLMENT SERVICES

 

NurseLoop provides payment fulfillment services to Users to deliver, hold, and/or receive payment for a Shift, and to pay fees to the Nurse less the NurseLoop Service Fee.

 

6.1.1 PAYMENT FULFILLMENT INSTRUCTIONS

 

NurseLoop will use and release funds deposited in the Facility Account only in accordance with this Agreement and the applicable Payment Fulfillment Instructions. You acknowledge and agree that NurseLoop acts merely as an agent. NurseLoop has fully delivered the Payment Fulfillment Services to you if NurseLoop provides the Payment Fulfillment Services described in this Agreement and the applicable Payment Fulfillment Instructions. NurseLoop is only obligated to perform those duties expressly described in this Agreement and any applicable Payment Fulfillment Instructions. If you authorize or instruct NurseLoop to release or make a payment of funds to a Nurse Account, NurseLoop may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Payment Fulfillment Instructions or as required by applicable law.

 

Ad Hoc Payments. If a Facility chooses Ad Hoc,, then the Facility agrees that they will be bound by, and NurseLoop will follow, the Ad-Hoc Payment Fulfillment Instructions.

 

Bi Monthly Payments. If a Facility chooses Bi Monthly, then the Facility agrees that they will be bound by, and NurseLoop will follow, the Bi-Monthly Payment Fulfillment Instructions.

 

6.1.2 FACILITY ACCOUNT AND THE NURSE ACCOUNT

 

NurseLoop will establish and maintain a “Facility Account” to hold funds for the Facility to use to make payments for the SWO, to receive refunds in connection with the Shifts, and to make payments to the Nurses less the NurseLoop Service Fees.

 

The Nurse will establish and maintain or designate and maintain a “Nurse Account” for the Nurse to receive payments for the Shifts, withdraw payments, and make payments to NurseLoop.

 

The Facilities hereby authorize and instruct NurseLoop to act as an agent in connection with the payments to the Nurses and the payment, holding, and receipt of funds for each SWO and other specified purposes in accordance with the Terms of Service and the applicable Payment Fulfillment Instructions.

 

6.1.3 TITLE TO FUNDS

 

NurseLoop and our Affiliates are not banks. NurseLoop receives and maintains all funds in an account at a bank insured by the Federal Deposit Insurance Corporation. The Facility Account is separate from the operating accounts of NurseLoop and each of our Affiliates. NurseLoop will not voluntarily make funds deposited in the Facility Account available to its creditors, or the creditors of our Affiliates, in the event of a bankruptcy, or for any other purpose. As provided in United States Bankruptcy Code, § 541(d), NurseLoop holds only legal title to, and not any equitable interest in, the Facility Account and any funds deposited therein. This Agreement is supplementary to the Service Contract and to any other agreement between the Facility and the Nurse concerning the SWO, as provided in 11[W&P1]  United States Bankruptcy Code, § 365(n).

 

6.1.4 NO INTEREST

 

You agree that you will not receive interest or other earnings on the funds held in the Facility Account. NurseLoop, or our Affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide as provided in Section 5 and the Fee and ACH Authorization Agreement.

 

6.1.5 AGENT DUTIES

 

We undertake to perform only such duties as are expressly set forth in this Agreement, the applicable Payment Fulfillment Instructions, and the other Terms of Service, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service, including this Agreement and the applicable Payment Fulfillment Instructions. We have the right to rely upon, and will not be liable for acting or refraining from acting upon, any written notice, instruction, or request furnished to us by Facility in accordance with this Agreement or the applicable Payment Fulfillment Instructions, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We may execute any of our powers and perform any of our duties under this Agreement and the applicable Payment Fulfillment Instructions directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants, and other skilled persons to be selected and retained by us. To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any such counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the applicable Payment Fulfillment Instructions, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Facility Account until we are directed otherwise in writing by the Facility or by a final order or judgment of an arbitrator or court of competent jurisdiction.

 

6.1.6 AGENT RIGHT

 

We have the right, in our sole discretion, but not the obligation, to institute arbitration or, if no arbitration provision applies, other legal proceedings, including depositing funds held in trust in the Facility Account with a court of competent jurisdiction, and to resolve any dispute between the Facility and the Nurse related to the Nurse Service Fees. Any provision of this Agreement and the applicable Payment Fulfillment Instructions to the contrary notwithstanding and regardless whether we are identified as a party in interest in any dispute, arbitration, or other legal proceeding, nothing herein will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in trust in the Facility Account with a court of competent jurisdiction. Any corporation or association into which NurseLoop may be merged or converted or with which NurseLoop may be consolidated, or any corporation or association to which all or substantially all the business of NurseLoop may be transferred will succeed to all the rights and obligations of NurseLoop as holder in trust and agent under this Agreement and the applicable Payment Fulfillment Instructions without further act to the extent permitted by applicable law.

 

6.2 FACILITY PAYMENTS ON SERVICE CONTRACTS

 

Ad Hoc Payments. On behalf of the Nurse, NurseLoop will invoice the Facility for Nurse Service Fees upon completion of the Shift, and the Facility will pay invoices consistent with the Payment Fulfillment Instructions. Upon issuance of the invoice, the Facility automatically and irrevocably authorizes and instructs NurseLoop or its Affiliate to charge the Facility’s Payment Method for the Nurse Service Fees.

 

Bi Monthly Payments. On behalf of the Nurse, NurseLoop will invoice the Facility for Nurse Service Fees for completed Shifts from the 1st to the 15th day of the month and for completed Shifts from the 16th day to the last day of the month, and the Facility will pay invoices on the 22nd day of the month and on the 7th day of the following month, respectively, consistent with the Bi Monthly Payment Fulfillment Instructions. Upon issuance of each invoice, the Facility automatically and irrevocably authorizes and instructs NurseLoop or its Affiliate to charge the Facility’s Payment Method for the Nurse Service Fees.

 

The Facility may opt to pay in advance for Shifts to benefit from preferential rates.

 

Facility acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts, failure by Facility to decline or dispute an Hourly Invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Escrow Instructions.

 

6.3 DISBURSEMENTS TO NURSES ON SERVICE CONTRACTS

 

NurseLoop will disburse available funds to the Nurse Account no more than 30 days after the Nurse Service Fees are deposited or transferred by the Facility to the Facility Account,

Notwithstanding any other provision of the Terms of Service or the Payment Fulfillment Instructions, NurseLoop, in its sole discretion and except as prohibited by applicable law, may refuse to process, may hold the disbursement of the Nurse Service Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Facility Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as the Nurse’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Nurse Service Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Nurse Service Fees is no longer necessary, NurseLoop will release such hold as soon as practicable.

 

In addition, notwithstanding any other provision of the Terms of Service or the Payment Fulfilment Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or the Shift; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Facility if you are a Nurse, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by charging the Facility Account, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.

 

6.4 NON-PAYMENT

 

If the Facility is in “default”, meaning the Facility fails to pay the Nurse Service Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of NurseLoop), NurseLoop will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, NurseLoop will be deemed to be in default on the earliest occurrence of any of the following: (a) the Facility fails to pay the Nurse Service Fees when due; (b) the Facility fails to pay a balance that is due or to bring, within a reasonable period of time but no more than thirty (30) days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) the Facility fails to pay an invoice issued to the Facility by NurseLoop on behalf of the Nurse within the time period agreed or, if no period is agreed, within thirty (30) days; (d) the Facility initiates a chargeback with a bank or other financial institution resulting in a charge made by NurseLoop for Nurse Service Fees or such other amount due being reversed to the Facility; or (e) the Facility takes other actions or fails to take any action that results in a negative or past-due balance on the Facility’s account.

 

If the Facility is in default, we may, without notice, temporarily or permanently close the Facility’s Account and revoke the Facility’s access to the Site and Site Services, including the Facility’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Nurse Services from other Users through the Site. However, the Facility will remain responsible for any amounts that accrue on any open Shifts at the time a limitation is put on the Facility’s Account as a result of the default. Without limiting other available remedies, the Facility must pay NurseLoop upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.

 

At our discretion and to the extent permitted by applicable law, NurseLoop or our Affiliates may, without notice, charge all or a portion of any amount that is owed to NurseLoop or as Nurse Service Fees or otherwise to any Payment Method on file on the Facility’s Account; set off amounts due against other amounts received from the Facility or held by for the Facility by NurseLoop; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.

 

NurseLoop does not guarantee that the Facility is able to pay or will pay NurseLoop Service Fees and NurseLoop is not liable for Nurse Service Fees if the Facility is in default. The Nurse may use the dispute process as described in the applicable Payment Fulfillment Instructions in order to recover funds from Facility in the event of a default or may pursue such other remedies against the Facility as the Nurse chooses. If NurseLoop recovers funds from a Facility in default pursuant to this Section 6.4, NurseLoop will disburse any portion attributable to the Nurse Service Fees to the applicable Nurse to the extent not already paid by the Facility.

 

6.5 NO RETURN OF FUNDS AND NO CHARGEBACKS

 

The Facility acknowledges and agrees that NurseLoop or our Affiliates will charge or debit the Facility’s designated Payment Method for the Nurse Service Fees incurred as described in the applicable Payment Fulfillment Instructions and the Fee and ACH Authorization Agreement and that once NurseLoop or our Affiliates, charges or debits the Facility’s designated Payment Method for the Nurse Service Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. The Facility also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for the Facility to resolve disputes. To the extent permitted by applicable law, the Facility therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Nurse Service Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If the Facility initiates a chargeback in violation of this Agreement, the Facility agrees that NurseLoop or our Affiliates may dispute or appeal the chargeback and institute collection action against the Facility and take such other action it deems appropriate.

 

6.6 PAYMENT METHODS

 

In order to use certain Site Services, the Facility must provide account information for at least one valid Payment Method.

 

The Facility hereby authorizes NurseLoop or our Affiliates to run credit card authorizations on all credit cards provided by the Facility, to store credit card and banking or other financial details as the Facility’s method of payment consistent with our Privacy Policy, and to charge the Facility’s credit card (or any other Payment Method) for the the Nurse Service Fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.

 

By providing Payment Method information through the Site and authorizing payments with the Payment Method, the Facility represents, warrants, and covenants that: (a) the Facility is legally authorized to provide such information; (b) the Facility is legally authorized to make payments using the Payment Method(s); (c) if the Facility is an employee or agent of a company or person that owns the Payment Method, that the Facility is authorized by the company or person to use the Payment Method to make payments to NurseLoop; and (d) such actions do not violate the terms and conditions applicable to the Facility’s use of such Payment Method(s) or applicable law.

 

When the Facility authorizes a payment using a Payment Method via the Site, the Facility represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from the Facility’s Payment Method(s), the Facility is solely responsible for paying such amounts by other means.

 

NurseLoop is not liable to any User if NurseLoop does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. NurseLoop will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Payment Fulfillment Instructions.

 

6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION

 

The Site and the Site Services operate in U.S. Dollars. If a User's Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Site may display foreign currency conversion rates that NurseLoop or our Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and NurseLoop or its Affiliate, as applicable, does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, NurseLoop or our Affiliates will charge, debit, or credit the User's Payment Method in U.S. Dollars and the User's Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User's Payment Method provider. The User's Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The User's authorization of a payment using a foreign currency conversion rate displayed on the Site is at the User's sole risk. NurseLoop and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. NurseLoop and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments to and from the Facility Account.

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6. NON-CIRCUMVENTION

 

Section 7 discusses your agreement to make and receive payments only through NurseLoop; violating this Section 7 is a serious breach and your Account may be permanently suspended for violations, as detailed below.

 

7.1 MAKING PAYMENTS THROUGH NURSELOOP

 

You acknowledge and agree that a substantial portion of the compensation NurseLoop receives for making the Site available to you is collected through the NurseLoop Service Fee described in Section 5.1 and that in exchange a substantial value to you is the relationships you make with other Users when you identify or are identified by another person through the Site or Site Services (the “NurseLoop Relationship”). NurseLoop only receives the NurseLoop Service Fee when a Facility and a Nurse pay and receive payment through the Site. Therefore, you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising out of your relationship with that person and not to circumvent the Payment Methods offered on the Site. For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention provision does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention provision applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User.

 

By way of illustration and not in limitation of the foregoing, you agree not to:

 

• Offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site.

• Invoice or report on the Site or request an invoice or payment amount lower than that actually agreed, made, or received between Users.

• Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments other than through the Site.

 

You agree to notify NurseLoop immediately if a person suggests to you making or receiving payments other than through the Site in violation of this Section 7 or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please email a confidential report to legal@nurseloop.life.

 

You acknowledge and agree that a violation of any provision in this Section 7.1 is a material breach of the Terms of Service. Your Account may be permanently suspended and charged a Penalty Fee (defined below) if you violate this Section 7.1.

 

7.2 COMMUNICATING THROUGH THE SITE; NOT SHARING CONTACT DETAILS

 

The provisions of this Section 7.2 apply to any interaction between Users. Users agree to use the communication services available on the Site to communicate with other Users prior to entering into a Service Contract. You agree that prior to entering into a Service Contract, you (a) will use NurseLoop as the sole manner to communicate with other Users; (b) will not provide your Means of Direct Contact (defined below) to any other User or another person that you identified or were identified by through the Site; (c) will not use Means of Direct Contact of another user to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of NurseLoop; (d) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (e) you will not include any Means of Direct Contact (defined below) or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services (including in each case in any attached file), except as otherwise provided on the Site.

 

For purposes of the Terms of Service “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a user to contact you on social media or other website or platform or application that includes a communications tool, such as Signal, Telegram, Skype, Slack, Wechat, or Facebook. For the avoidance of doubt, information is a Means of Direct Contact if it would enable another user to identify any of the information above through other sources, such as going to a website that included an email address or identifying you on social media, such as through Facebook or LinkedIn.

 

You acknowledge and agree that a violation of any provision of this Section 7.2 is a material breach of the Terms of Service. Your Account may be permanently suspended if you violate this Section 7.2.

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