PLEASE READ THIS USER AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN COLLECTIVELY DEFINED BELOW AS THE "TERMS OF SERVICE" CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
Subject to the conditions set forth herein, NurseLoop may, in its sole discretion, amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the Site. NurseLoop will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by NurseLoop, NurseLoop will provide at least thirty (30) days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
1. NURSELOOP ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
1.2 ACCOUNT ELIGIBILITY
NurseLoop offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services, in the case of Nurses, to offer Nurse Services, and, in the case of Facilities, to avail of Nurse Services; (c) will comply with any licensing, registration, or other requirements with respect to your profession and the provision of Nurse Services, in the case of Nurses, and with respect to your business, or the business for which you are acting and the availment of Nurse Services, in the case of Facilities,; and (d) are either a legal entity or an individual who is eighteen (18) years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your profession, your business, your skills, or your credentials and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.4.1 FACILITIES ACCOUNT
You can register for an Account to use the Site and Site Services as a Facility (a “Facility Account”). Each User under a Facility Account (“Facility Member”) can be given different permissions to act on behalf of the Facility Account.
1.4.2 NURSE ACCOUNT
You can register for an Account to use the Site and Site Services as a Nurse (a “Nurse Account”).
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of a Facility. By granting other Users permissions under your Account, in the case of Facilities, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site and Site Services. Upon closure of an Account, NurseLoop may close any or all related Accounts.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, your ability to practice your profession, and your ability to act on behalf of your Facility on NurseLoop. You authorize NurseLoop, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification, some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.
1.7 USERNAMES AND PASSWORDS
Each person who uses the Site must register for their own Account. When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize NurseLoop to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service.
2. PURPOSE OF NURSELOOP
Section 2 discusses what NurseLoop does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Contract with a Nurse or Facility, as detailed below.
The Site is a matching platform where Facilities and Nurses can identify each other and offer and avail of Nurse Services. Subject to the Terms of Service, NurseLoop provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Contracts, and assisting Users in resolving disputes which may arise in connection with those Contracts. When a User enters a Contract, the User uses the Site to invoice and pay any amounts owed under the Contract.
2.1 RELATIONSHIP WITH NURSELOOP
NurseLoop merely makes the Site and Site Services available to enable Nurses and Facilities to find and transact directly with each other. NurseLoop does not introduce Nurses to Facilities, select Shifts for Nurses, or select Nurses for Facilities. Through the Site and Site Services, Nurses may be notified of Facilities that may be seeking the Nurse Services that they offer, and Facilities may be notified of Nurses that may offer the Nurse Services that they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Shift, Facility or Nurse on their own. If Users decide to enter into a Contract, the Contract is directly between the Users and NurseLoop is not a party to that Contract.
You acknowledge, agree, and understand that NurseLoop is not a party to the relationship or any dealings between the Facility and the Nurse. Without limitation, Users are solely responsible for: (a) ensuring the accuracy and legality of any User Content; (b) determining the suitability of other Users for a Contract (such as any interviews, vetting, background checks, or similar actions); (c) negotiating, agreeing to, and executing any terms or conditions of Contracts; (d) performing Nurse Services; and/or (e) paying for Nurse Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Contract with another User and for verifying any information about another User, including Composite Information (defined below). NurseLoop does not make any representations about or guarantee the truth or accuracy of any Nurse’s or Facility’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Nurses or Facilities; and does not perform background checks on or guarantee the work of Nurses or Facilities. You acknowledge, agree, and understand that NurseLoop does not, in any way, supervise, direct, control, or evaluate Nurses or their work and is not responsible for any Shift. NurseLoop makes no representations about and does not guarantee, and you agree not to hold NurseLoop responsible for, the quality, safety, or legality of NurseLoop Services; the qualifications, background, or identities of Users; the ability of Nurses to deliver NurseLoop Services; the ability of Facilities to pay for Nurse Services; User Content and statements or posts made by Users; or the ability or willingness of a Facility or Nurse to actually complete a transaction. While NurseLoop may provide certain badges on NurseLoop or Facility profiles, such badges are not a guarantee or warranty of quality or ability or willingness of the badged Nurse or Facility to complete a Contract and is not a guarantee of any kind, including, the quality of Nurse Services or Shift.
You also acknowledge, agree, and understand that Nurses are solely responsible for determining, and have the sole right to determine, which Shifts to accept and the time, place, manner, and means of providing any Nurse Services. You further acknowledge, agree, and understand that: (i) you are not an employee of NurseLoop, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) NurseLoop will not have any liability or obligations, including under or related to Contracts and/or Nurse Services for any acts or omissions by you or other Users; (iii) NurseLoop does not, in any way, supervise, direct, or control any Nurse or Nurse Services; does not impose quality standards or a deadline for completion of any Nurse Services; and does not dictate the performance, methods or process the Nurse uses to perform the Nurse Services; (iv) the Nurse is free to determine when and if to perform Nurse Services, including the days worked and time periods of work, and NurseLoop does not set or have any control over the Nurse’s work hours, work schedules, or work location; (v) the Nurse will be paid at such times and amounts as agreed in a given Shift, and NurseLoop does not, in any way, provide or guarantee the Nurse a regular salary or any minimum, regular payment; (vi) NurseLoop does not provide Nurses with training or any equipment, labor, tools, or materials related to any Contract; and (vii) NurseLoop does not provide the premises at which Nurses will perform the work.
2.2 TAXES AND BENEFITS
The Nurse acknowledges and agrees that the Nurse is solely responsible (a) for all tax liability associated with payments received from the Facilities and through NurseLoop, and that NurseLoop will not withhold any taxes from payments to the Nurse; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that the Nurse is not covered by or eligible for any insurance from NurseLoop; (c) for determining whether the Nurse is required by applicable law to issue any particular invoices for the Nurse Fees and for issuing any invoices if so required; and (d) for determining whether the Nurse is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Nurse Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate. In the event of an audit of NurseLoop, the Nurse agrees to promptly cooperate with NurseLoop and provide copies of the Nurse’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing the Nurse is an independent contractor as represented to NurseLoop.
2.3 PLATFORM FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request NurseLoop to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on data that Nurses or Facilities submit to NurseLoop and does not constitute and will not be construed as an introduction, endorsement, or recommendation by NurseLoop; NurseLoop provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the platform, all Users, and the efficiency of the Site and you specifically request that NurseLoop post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, wherever referenced, and other User Content highlighted by NurseLoop on the Site or otherwise (“Composite Information”), if any, may include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that NurseLoop will make Composite Information available to other Users, including composite or compiled feedback. NurseLoop provides its feedback system as a means through which Users can share their opinions of other Users publicly, and NurseLoop does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business or service advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
NurseLoop does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content. NurseLoop is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, NurseLoop reserves the right (but is under no obligation) to remove posted feedback or information that, in NurseLoop’s sole judgment, violates the Terms of Service or negatively affects the platform, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of NurseLoop. You acknowledge and agree that you will notify NurseLoop of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, NurseLoop may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN FACILITY AND THE NURSE
Section 3 discusses the relationship you may decide to enter into with another User, including Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Facility and Nurse decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Facility and the Nurse. The Nurse and the Facility have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that NurseLoop is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between NurseLoop and any User or a partnership or joint venture between NurseLoop and any User.
With respect to any Service Contract, the Facilities and NurseLoop may enter into any written agreements that they deem appropriate provided that any such agreements do not conflict with, narrow, or expand NurseLoop’s rights and obligations under the Terms of Service, including this Agreement and the applicable Payment Fulfillment Instructions.
3.2 DISPUTES AMONG USERS
For disputes arising between the Facilities and the Nurses, you agree to abide by the dispute process that is explained in the Payment Fulfillment Instructions that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that NurseLoop will not and is not obligated to provide any dispute assistance beyond what is provided in the Payment Fulfillment Instructions.
If the Nurse or the Facility intends to obtain an order from any arbitrator or any court that might direct NurseLoop, or our Affiliates to take or refrain from taking any action with respect to a payment to a Nurse Account, that party will (a) give us at least five (5) business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting NurseLoop, we be paid in full for any amounts to which we would otherwise be entitled; and (c) include in any such order a provision that, as a precondition to any obligation affecting NurseLoop, NurseLoop be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality. If and to the extent that the Users do not articulate any different agreement with regard to confidentiality, then they agree that this Section 3.3 (Confidential Information) applies.
To the extent a User provides Confidential Information to another User, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.4 ELECTRONIC COMMUNICATION
By using Nurseloop USA's services, you agree to receive electronic messages, including SMS and emails, related to shift management and billing matters. Such messages may only pertain to the following matters:
a.) Hospital / Healthcare Facility
Shift Management: Staffing need inquiry, Shift attendance confirmation, Attendance notice, General inquiry
Billing: Payment reminder, Invoice receipt confirmation, Discount validity reminder, Past due notification
Shift reminder, Shift confirmation, Attendance confirmation, Shift availability notification, Shift change notification, On-going registration follow-ups
Nurseloop USA will send electronic messages related to the above matters, and you may opt-out of receiving any of these messages by notifying Nurseloop USA in writing. However, by using Nurseloop USA's services, you acknowledge and agree that they will receive these messages. You also agree that they are responsible for ensuring that their contact information, including phone number and email address, is up to date and accurate, so that they can receive these messages in a timely manner.
4. WORKER CLASSIFICATION AND NURSELOOP PAYROLL
Section 4 discusses what you agree to concerning whether a Nurse is an employee or independent contractor and when you agree to use NurseLoop Payroll, as detailed below.
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between NurseLoop and a User.
The Facility is solely responsible for and has complete discretion with regard to selection of any Nurse for any Shift. The Facility is solely responsible for and assumes all liability for determining whether Nurses should be engaged as independent contractors or employees of the Facility and engaging them accordingly and, if applicable, for complying with applicable law. Any designation provided to NurseLoop must be emailed to email@example.com and include all the details of the engagement; Facility specifically acknowledges and agrees that providing a designation to NurseLoop through any other means is not sufficient to satisfy its obligations under this Section 4.1. The Facility warrants its decisions regarding classification are correct and its manner of engaging Nurses complies with applicable laws, regulations, and rules. NurseLoop will have no input into, or involvement in, worker classification as between the Facility and the Nurse and Users agree that NurseLoop has no involvement in and will have no liability arising from or relating to the classification of a Nurse generally or with regard to a particular Shift.
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.
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.
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.
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.
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.
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 firstname.lastname@example.org.
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.
7.3 PENALTY FEE
If you violate your obligations in Section 7.1 with respect to each NurseLoop Relationship, the Facility or the Nurse shall pay NurseLoop a Penalty Fee which is a minimum of $1,000 USD and up to $50,000 USD for each NurseLoop Relationship.
You agree that the Penalty Fee is 12% of the estimated earnings over a twelve (12) month period, which is calculated by taking the Hourly Rate and multiplying it by 2,080.
You understand and agree that if NurseLoop determines, in its sole discretion, that you have violated Section 7, NurseLoop or our Affiliates may, to the maximum extent permitted by law (a) charge your Payment Method the Penalty Fee (including interest) if permitted by law or send you an invoice for the Penalty Fee (including interest), which you agree to pay within thirty (30) days, (b) close your Account and revoke your authorization to use the Site and Site Services, and/or (c) charge you for all losses and costs (including any and all time of NurseLoop or our Affiliates’ employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
7. RECORDS OF COMPLIANCE
Section 8 discusses your agreement to make and keep all required records, as detailed below.
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to NurseLoop upon request. Nothing in this subsection requires or will be construed as requiring NurseLoop to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on NurseLoop’s part to store, backup, retain, or grant access to any information or data for any period.
8. WARRANTY DISCLAIMER
Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NURSELOOP MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NURSELOOP DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 13 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST NURSELOOP WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
9. LIMITATION OF LIABILITY
Section 10 discusses your agreement that NurseLoop usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you $2,500, as detailed below.
NurseLoop is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
your use of or your inability to use our Site or Site Services;
delays or disruptions in our Site or Site Services;
viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
damage to your hardware device from the use of the Site or Site Services;
the content, actions, or inactions of third parties’ use of the Site or Site Services;
a suspension or other action taken with respect to your Account;
your reliance on the quality, accuracy, or reliability of postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL NURSELOOP, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF NURSELOOP, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY NURSELOOP WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS A FACILITY OR NURSE DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that NurseLoop is not a party to any contract between Users, you hereby release NurseLoop, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Nurse Services provided to the Facility by a Nurse and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Payment Fulfillment Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
This release will not apply to a claim that NurseLoop failed to meet our obligations under the Terms of Service.
Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless NurseLoop, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Site Services; (b) any User Content developed, provided, or otherwise related to your use of the Site Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Nurse as an independent contractor or non-compliance with applicable law including for the failure to provide NurseLoop with a designation including accurate information on the applicable law; the classification of NurseLoop as an employer or joint employer of the Nurse; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (d) failure to comply with the Terms of Service by you or your agents; (e) failure to comply with applicable law by you or your agents; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
12. AGREEMENT TERM AND TERMINATION
Section 13 discusses your and NurseLoop’s agreement about when and how long this Agreement will last, when and how either you or NurseLoop can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and NurseLoop expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. NurseLoop is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Shift entered into between Users. If you attempt to terminate this Agreement while having one or more open Shift, you agree (a) you hereby instruct NurseLoop to close any open Shifts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Shifts have closed on the Site; (c) NurseLoop will continue to perform those Site Services necessary to complete any open Shifts or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to NurseLoop for any Site Services or such other amounts owed under the Terms of Service and to any Nurse for any Nurse Services.
Without limiting NurseLoop’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or NurseLoop or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register under a new Account without NurseLoop’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF NURSELOOP DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, NURSELOOP HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT NURSELOOP WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and any closure of your Account may involve deletion of any content stored in your Account for which NurseLoop will have no liability whatsoever. NurseLoop, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or NurseLoop from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
7.DISPUTES BETWEEN YOU AND NURSELOOP
Section 14 discusses your agreement with NurseLoop and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we cannot resolve the dispute informally, as detailed below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and NurseLoop or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, NurseLoop, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with NurseLoop (including without limitation any claimed employment with NurseLoop or one of our Affiliates or successors), the termination of your relationship with NurseLoop, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Site, Site Services, the Terms of Service, any Service Contract, payments to the Facility Account or agreements, any payments or monies you claim are due to you from NurseLoop or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with NurseLoop or the termination of that relationship.
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and NurseLoop agree to first notify each other of the Claim. You agree to notify NurseLoop of the Claim by mail at Attn: NurseLoop Legal, 30 N Gould St. Ste R Sheridan, WY 82801 or email to firstname.lastname@example.org, and NurseLoop agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and NurseLoop then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or NurseLoop, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and NurseLoop will have sixty (60) days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER
This Arbitration Provision applies to all Users.
In the unlikely event the parties are unable to resolve a Claim within sixty (60) days of the receipt of the applicable Notice, you, NurseLoop, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with NurseLoop ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement and the Terms of Service. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Nurses that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where the Nurse is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and NurseLoop will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Nurse will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with NurseLoop to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with NurseLoop to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between NurseLoop and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. NurseLoop will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, below, of this Arbitration Provision is deemed to be unenforceable, you and NurseLoop agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and NurseLoop agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and NurseLoop agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, NurseLoop may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying NurseLoop in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to NurseLoop at Attn: NurseLoop Legal, 30 N Gould St. Ste R Sheridan, WY 82801 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to email@example.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section 14.4.4, continuing your relationship with NurseLOOP constitutes mutual acceptance of the terms of this Arbitration Provision by you and NurseLoop. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
14.4.5. Enforcement of this Arbitration Provision.
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and NurseLoop agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
Section 15 discusses additional terms of the agreement between you and NurseLoop, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and NurseLoop relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though NurseLoop drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or NurseLoop because of the authorship of any provision of the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon NurseLoop unless they are agreed in a written instrument signed by a duly authorized representative of NurseLoop or posted on the Site by NurseLoop. Email will not constitute a written instrument as contemplated by this Section 15.2. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without NurseLoop’s prior written consent in the form of a written instrument signed by a duly authorized representative of NurseLoop. NurseLoop may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
15.4 SEVERABILITY; INTERPRETATION
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the Philippines.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
NurseLoop makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Section 16 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of the Nurse or Facility; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Facility” means any authorized User utilizing the Site or Site Services, including Booking Services, to seek and/or obtain Nurse Services, including from another User.
“Hourly Contract” means a Service Contract for which Facilities is charged based on the hourly rate.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Invoice” means the report of hours invoiced for a stated period by a Nurse for Nurse Services performed for a Facility.
“Nurse” means any authorized User utilizing the Site or Site Services, including Booking Services, to advertise or provide Nurse Services to Facilities. A Nurse is a customer of NurseLoop with respect to use of the Site and Site Services.
“NurseLoop App” means the online platform accessed using NurseLoop’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“Nurse Service Fees” means: (a) for an Hourly Contract, the amount reflected in the Invoice (the number of hours invoiced by the Nurse, multiplied by the hourly rate); and (c) any bonuses or other payments made by a Facility to a Nurse.
“Nurse Services” means all services performed for or delivered to Facilities by the Nurses.
“Payment Fulfillment Instructions” means the Ad Hoc Payment Fulfilment Instructions or the Bi Monthly Payment Fulfillment Instructions.
“Payment Method” means a valid credit card issued by a bank acceptable to NurseLoop, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as NurseLoop may accept from time to time in our sole discretion.
“Service Contract” means, as applicable, (a) the contractual provisions between a Facility and a Nurse governing the Nurse Services to be performed by a Nurse for a Facility for a Shift; or (b) a Booking Service as defined in the NurseLoop Booking Contract Terms.
“Shift” means an engagement or booking for Nurse Services that a Nurse provides to a Facility under a Service Contract on the Site.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to NurseLoop, including such content or information that is posted as a result of questions.