Terms of Service
Terms of Service
These Terms of Service (the “TOS”) are made and entered into by and between you (or, if you are entering into the TOS on behalf of a company or other legal entity, such entity) (“you”), and Synchronicity Health Technology Inc., a Delaware corporation, d/b/a NurseDash (“NurseDash”), and govern your access to and use of and NurseDash’s provision of the Service (defined below), effective as of the earlier of the date you click “Accept,” first access or use the Service, or otherwise indicate your assent to the TOS (“Effective Date”).
THE TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOS, AND YOU AGREE THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. PLEASE REVIEW SECTION A-15 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
PLEASE REVIEW THE TOS CAREFULLY. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED WITHIN THE SERVICE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, DO NOT ACCESS OR USE THE SERVICE.
AS FURTHER DESCRIBED IN SECTION A-2 HEREOF, (i) NURSEDASH DOES NOT EMPLOY, RECOMMEND, ENDORSE, OR GUARANTEE ANY MEDICAL-SERVICE PROFESSIONALS, PROVIDERS, OR FACILITIES, AND (ii) YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE SERVICE.
You represent and warrant that you are at least eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater, and of legal age to form a binding contract. You further represent and warrant that you are not a person barred from accessing or using the Service under the laws of your country or state of residence or any other applicable jurisdiction. If you are entering into the TOS on behalf of a company or other legal entity, you represent and warrant that you are authorized and lawfully able to bind such entity to the TOS, in which case the term “you” will refer to such entity. If you do not have such authority, or if you do not agree with the terms and conditions of the TOS, you may not access or use the Service.
The TOS consists of three sections, and the applicability of each section to you depends upon the nature of your access to or use of the Service or your relationship to NurseDash.
All Users: Applies to anyone who accesses or uses the Service.
Facilities: Applies to you to the extent you access or use the Service as a Facility (defined below).
Professionals: Applies to you to the extent you access or use the Service as a Professional (defined below).
(a) “App” means any mobile application made available by NurseDash for accessing or using the Service.
(b) “Content” means any text, graphics, images, photos, audio or visual works, data, information or other content.
(c) “Credentials” means any user accounts, passwords and other authentication credentials associated with your access to or use of the Service.
(d) “Facility” means an entity that provides medical services and accesses or uses the Service to, among other things, post Service Requests, receive offers from Professionals to fill Service Requests, and pay Professional Services Fees.
(e) “Intellectual Property” means all intellectual property and proprietary rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including: (i) copyrights, “moral rights,” mask works, trademarks, service marks, logos, trade dress, designs, patents, inventions, trade secrets, publicity rights and privacy rights; and (ii) all rights in any applications and registrations, including all renewals, extensions and restorations, for any of the foregoing.
(f) “Platform” means NurseDash’s proprietary online platform made available through its mobile applications (each, an “App”) and the website and associated domains of https://www.newyorklifeguardcertification.com/ (the “Site”) (including all Content, software and other components composing the foregoing).
(g) “Professional” means an individual who is a medical-services professional and accesses or uses the Service to, among other things, offer his or her professional services to fill Service Requests for Facilities and receive payment in connection with performance of Professional Services.
(h) “Service” means the Platform and access to and use of the Platform, as provided by NurseDash.
(i) “Service Request” means each individual request for Professional Services submitted through the Service by a Facility.
(j) “Third-Party Content” means all Content made available through the Service by third parties, including other users.
(k) “Users” means collectively, Professionals and Facilities.
(l) “Your Content” means all Content that you submit, upload, email, transmit or otherwise make available through the Service.
2. How the Service Works
(a) The Platform. NurseDash provides access to and use of the Platform to connect Professionals, who are independent third-party providers of medical services and are willing to provide such services on a short-term basis (“Professional Services”), with Facilities, who are independent third-party businesses that seek to engage Professionals to provide Professional Services. After a Facility posts a Service Request, a Professional may view the posting and choose to indicate the Professional’s availability to provide the medical services requested by the Facility for the Service Request. The Facility may then review responses from Professionals indicating availability and determine which Professional it wishes to engage based on information supplied by the Professionals to Facilities through the Service.
(b) Service Requests. Each posting for a Service Request will be for one Professional, such that, to hire two Professionals, a Facility must submit two postings for Service Requests. Each posting for a Service Request must contain the nature and type of Professional Services required from the Professional, including a description of the services, the start and end time for the services, and the location where the services must be performed.
(c) Service Applications. Professionals can review postings for Service Requests and, through the Service, submit an offer to the applicable Facility to provide Professional Services to fill any such Service Request (each such offer, a “Service Application”). Each Service Application must include certain information, including the Professional’s name, work history, certification information and any other information requested in the posting for the Service Request.
(d) Selection of Professionals. Facilities will be able to view all Professionals that have indicated they wish to provide Professional Services for any Service Request, including such Professional’s name, work history, and other information provided through the Service. Facilities will decide, in their sole discretion, which Professional they wish to engage for any Service Request.
(e) Completed Service. Facilities, through the Service, can review all Service Applications for its posted Service Requests. Facilities may decide, in their sole discretion, which Service Applications, if any, they wish to accept for any Service Request. Each Service Application that a Facility has accepted and for which the Professional has fully performed the applicable Professional Services to the satisfaction of the Facility is hereinafter referred to as a “Completed Service.”
(f) Only a Platform. NurseDash only provides a platform for Facilities and Professionals to communicate and contract with one another and exchange money as payment for Professional Services provided by Professionals to Facilities. The acceptance by a Facility of a Service Application submitted by a Professional through the Service forms an agreement directly and solely between such Facility and that Professional. NurseDash is not a party to any such agreements and disclaims all liability arising from or relating to any such agreements except as related to NurseDash’s obligations in connection with processing payments hereunder.
NurseDash does not:
Offer, provide or request Professional Services (or any training, equipment, or materials relating thereto);
Mediate or otherwise monitor the interactions between Users;
Have control over or otherwise supervise the manner, means, quality, timing, legality, or failure to provide Professional Services or any aspect whatsoever of any feedback or ratings provided by Users; or
Have control over the integrity, responsibility, or any actions of any Users.
(g) Independent Professionals. Although Professionals must undergo background checks and other verification processes as described in Section C in order to create an Account, NurseDash makes no representations about and disclaim all liability associated with: (i) the suitability, reliability, and timeliness of the Professional Services provided by Professionals; and (ii) each Professional’s credentials, background, suitability, and reliability. NurseDash cannot and does not confirm that each User is who that User claims to be. NURSEDASH EXPRESSLY DISCLAIMS, AND FACILITIES EXPRESSLY RELEASE NURSEDASH FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATING TO (1) ANY MISSTATEMENTS AND/OR MISREPRESENTATIONS MADE BY A PROFESSIONAL OR (B) THE ACCURACY, TIMELINESS OR COMPLETENESS OF ANY BACKGROUND CHECK OF A PROFESSIONAL CONDUCTED AND/OR OBTAINED ON BEHALF OF NURSEDASH. Any disputes relating to the Professional Services must be resolved directly between Professionals and Facilities.
(a) Account Creation. To access and use the Service, you must register to create an account (“Account”). In registering for the Service, you shall: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (“Registration Information”); and (ii) maintain and promptly update the Registration Information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or NurseDash reasonably suspects that you have done so, NurseDash may suspend or terminate your account.
(b) Credentials. You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify NurseDash immediately of any unauthorized use of your account or password or any other similar breach of security.
(c) Inactive Accounts. If your account remains inactive for six months or longer, NurseDash reserves the right to suspend or terminate your account, with or without notice to you, and delete Your Content, all without liability to you.
4. Grant of Rights
(a) Service. During the term of the TOS, and subject to the payment of all fees due under the TOS and your compliance in all material respects with the terms and conditions of the TOS, NurseDash hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable right to: (i) access and use the Service only through the online interface or Apps provided by NurseDash; and (ii) print a reasonable number of pages from the Service.
(b) Limited Use. All rights granted to you pursuant to the TOS may only be exercised for your personal, non-commercial use or internal business purposes.
(c) Changes. NurseDash reserves the right to make modifications or improvements to or add or remove features from the Service from time to time, including changing the Platform through which the Service is offered.
5. Your Responsibilities
(a) Restrictions. You may not yourself, nor may you permit any other party to: (i) reproduce, distribute, modify, translate, adapt or create derivative works based upon the Service, except with respect to the limited right to print a reasonable number of pages from the Service as specified in Section A-4(a); (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Service; (iii) access or use the Service for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any other products or services offered by NurseDash; (iv) rent, lease, lend, sell or sublicense the Service or otherwise provide access to or use of the Service as part of a service bureau or similar fee-for-service purpose; (v) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure or that negatively affects the ability of others to access or use the Service; (vi) use spiders, crawlers, robots, scrapers or other similar means to access the Service, or otherwise substantially download, reproduce or archive any portion of the Service; (vii) frame or use any framing technique to enclose the Service or otherwise access or use the Service through any implementation other than as provided by NurseDash; (viii) submit any materials to the Service for which you do not have all necessary rights and permissions to submit, including any materials that infringe the Intellectual Property of others; (ix) use the Service to transmit unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other similar communications; (x) transmit any computer virus, worm, Trojan horse, spyware or other malicious code to or through the Service; (xi) impersonate any entity, including NurseDash personnel, or falsely state or otherwise misrepresent your affiliation with any entity; (xii) forge headers or otherwise manipulate identifiers to disguise the origin of any materials transmitted through the Service; or (xiii) access or use the Service in any way that does not comply with all applicable laws and regulations.
(b) Protection. You are solely responsible for protecting the confidentiality of your Credentials. You may not share or otherwise disclose your Credentials to any other party. In the event that you become aware of any unauthorized use of the Service through use of your Credentials, you will promptly give written notice to NurseDash of such unauthorized use and make reasonable efforts to eliminate such unauthorized use.
(a) Your Content. You, and not NurseDash, are solely responsible for: (i) Your Content and giving all required notices and obtaining all necessary consents (including all required rights and permissions from Intellectual Property holders) before submitting Your Content to the Service for use in accordance with the TOS; and (ii) ensuring that the submission of Your Content to the Service for use in accordance with the TOS will not violate any applicable laws or regulations or any of your obligations to any third party, including any duty of confidentiality.
(b) Use of Your Content. You hereby grant NurseDash a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, nonexclusive, sublicensable, transferable license to distribute, transmit, reproduce, modify, adapt, create derivative works from, publish, publicly perform, publicly display and otherwise use Your Content in connection with the Service.
(c) Third-Party Content. You acknowledge and agree that the Service may provide access to or rely on Third-Party Content, and the third parties who provide Third-Party Content, and not NurseDash, are entirely responsible for such content, including its quality, accuracy and completeness.
7. Intellectual Property Rights
(a) NurseDash Ownership. You acknowledge and agree that: (i) as between NurseDash and you, NurseDash owns all rights, title and interest (including all Intellectual Property) in the Service, except with respect to any of Your Content contained in the Service; and (ii) the Service is a compilation or collective work protected under the United States Copyright Act and other laws (including international laws) and treaties.
(b) Your Ownership. NurseDash acknowledges and agrees that, as between you and NurseDash, you own all rights, title and interest (including all Intellectual Property) in and to Your Content.
(c) Feedback. If you elect to provide or make available to NurseDash any suggestions, comments, ideas, improvements or other feedback relating to the Service or the Service, NurseDash will be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute such feedback in any manner, without credit or compensation to you.
(d) Intellectual Property Notices. You may not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Service.
(e) Reservation of Rights. You and NurseDash each reserves all rights not expressly granted under the TOS.
8. Term, Suspension and Termination
(a) Term. The term for the TOS will commence on the Effective Date and will continue while you use the Service unless earlier terminated pursuant to Section A-8(b).
(b) Termination. NurseDash reserves the right to terminate, block or suspend, with or without notice to you, your access to and use of the Service in the event of: (i) your failure to make any payment when due under the TOS; or (ii) your violation of the TOS. Any such blockage or suspension will be without prejudice to any other rights or remedies available to NurseDash under the TOS or applicable law.
(c) Events Upon Termination. Upon termination of the TOS for any reason: (i) all rights granted by the parties under the TOS will immediately terminate, subject to Section A-6(b); and (ii) you will immediately cease all access to and use of the Service.
(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of the TOS will survive such expiration or termination, including Sections: A-2(f) (Only a Platform); A-2(g) (Independent Professionals); A-5 (Your Responsibilities); A-6 (Content); A-7 (Intellectual Property Rights); A-8(c) (Events Upon Termination); A-8(d) (Survival); A-9 (Representations and Warranties); A-10 (Indemnification); A-11 (Disclaimer of Warranties); A-12 (Limitation of Liability); A-13 (Links and External Materials); A-15 (Arbitration and Equitable Relief); A-16 (Governing Law); A-18 (Miscellaneous); B (Facilities); and C (Professionals).
9. Representations and Warranties
Each party represents and warrants to the other that: (a) such party has the necessary power and authority to enter into the TOS; (b) the execution and performance of the TOS have been authorized by all necessary corporate or institutional action; (c) entry into and performance of the TOS will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental entity is necessary to make the TOS valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under the TOS.
NurseDash will have no liability and you will indemnify, defend and hold NurseDash harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) arising from any action or claim resulting from: (i) Your Content; (ii) your violation of the TOS, any law or regulation, or any rights (including Intellectual Property) of another party; (iii) your access to or use of the Service; or (iv) your misclassification as an independent contractor. NurseDash reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you under this Section A-10, in which event you will fully cooperate with NurseDash in the defense or settlement of such matter.
11. DISCLAIMER OF WARRANTIES
(a) Service Provided As-Is. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. ALL PRODUCTS AND SERVICES PROVIDED UNDER THE TOS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” NURSEDASH, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION A-9), EXPRESS OR IMPLIED, INCLUDING: (i) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (ii) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THE TOS, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS.
(b) Interactions with Other Users. You are solely responsible for your interactions and transactions with other Users. You agree to look solely to such other Users for any claim, damage or liability associated with any communication or transaction via the Service. YOU EXPRESSLY WAIVE AND RELEASE NURSEDASH FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY OTHER USER OR THIRD PARTY, INCLUDING DAMAGES RELATING TO MONETARY CLAIMS, PERSONAL INJURY OR DESTRUCTION OF PROPERTY. YOUR SOLE REMEDIES WITH RESPECT THERETO SHALL BE BETWEEN YOU AND THE APPLICABLE USER OR OTHER THIRD-PARTY. NURSEDASH RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR DISPUTES BETWEEN USERS. THE SERVICE IS A MARKETPLACE SERVICE FOR USERS TO CONNECT ONLINE. EACH USER IS SOLELY RESPONSIBLE FOR INTERACTING WITH AND SELECTING ANOTHER USER, CONDUCTING ALL NECESSARY DUE DILIGENCE, AND COMPLYING WITH ALL APPLICABLE LAWS.
12. LIMITATION OF LIABILITY
(a) General. IN NO EVENT WILL NURSEDASH BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COSTS OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE SERVICE, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICE OR ITS DELIVERY VIA THE INTERNET, OR ANY INACCURACY, INCOMPLETENESS OR OTHER DEFECT IN ANY CONTENT ACCESSIBLE THROUGH THE SERVICE, EVEN IF NURSEDASH HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. OTHER THAN WITH RESPECT TO NURSEDASH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NURSEDASH UNDER THE TOS EXCEED THE GREATER OF (i) THE AMOUNT OF FEES RECEIVED BY NURSEDASH FROM YOU UNDER THE TOS IN THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE, OR (ii) $500.
(b) Quality of Professional Services. THE QUALITY OF PROFESSIONAL SERVICES REQUESTED THROUGH THE USE OF THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO PROVIDES SUCH PROFESSIONAL SERVICES. FACILITIES UNDERSTAND THAT BY USING THE SERVICE, THEY MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY HARMFUL, UNSAFE, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF THE PROFESSIONAL SERVICES, AND SUCH PROFESSIONALS IS AT FACILITIES’ OWN RISK.
13. Links and External Materials
NurseDash or Users may provide links to other websites or resources. You acknowledge and agree that NurseDash does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (“External Materials”). These other sites and resources are subject to different terms and conditions and privacy policies, which you are responsible for reviewing. NurseDash will not be liable for any damage or loss caused by or resulting from use of or reliance on any External Materials.
14. Procedure for Making Claims of Copyright Infringement
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide the NurseDash Agent for Notice of Copyright Claims with the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The NurseDash Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
945 McKinney St. Suite 116655
Houston, Texas 77002
15. ARBITRATION AND EQUITABLE RELIEF.
(a) Disputes. Except as provided in Section A-15(g), you and NurseDash agree that all disputes, controversies, and claims (“Claims”) between you, including but not limited to any Claim related to or arising under this Agreement, the use of the Platform or the provision or receipt of Professional Services, or the nature of the relationship between you and NurseDash, will be settled by binding arbitration to be conducted in the English language in accordance with the rules then in effect of the American Arbitration Association, whether such dispute or controversy arose before or after the date you entered into this TOS. The scope of this provision applies to all Claims against NurseDash, its successors or assigns, or any of the current or former officers, directors, principals, shareholders, owners, employees, or agents of any of them. Any question regarding the scope, enforceability, validity, interpretation, or application of the parties’ agreement to arbitrate, including any claim of unconscionability, shall likewise be settled by binding arbitration. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction.
(b) Individual Basis. You and NurseDash agree to resolve any dispute in arbitration on an individual basis only, and not on a class, consolidated, representative or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis and there will be no right or authority for any dispute to be brought, heard, or arbitrated as a class action, collective action, representative action, other multi-party or consolidated action, or any other action on behalf of or together with individuals other than yourself (“Class Action Waiver”). If at any point this Class Action Waiver is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
(c) Demand for Arbitration. All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must deliver a written demand for arbitration within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Service of any demand for arbitration on NurseDash shall be provided to email@example.com and such other designee NurseDash may provide. Service of any demand for arbitration on you shall be sent to your address as reflected in the Registration Information. The arbitrator shall resolve all disputes regarding the timeliness or sufficiency of the demand for arbitration.
(d) Selection of Arbitrator. You and NurseDash shall select one (1) neutral arbitrator by mutual agreement. If we cannot agree on an arbitrator within 30 days of the written demand for arbitration, the arbitrator shall be selected in accordance with the procedures found in the then current AAA’s Commercial Arbitration Rules and Mediation Procedures (the “Arbitrator“). For Professionals, unless the parties jointly agree otherwise, the Arbitrator shall be either an attorney who is experienced in employment law and licensed to practice law in the state in which the arbitration is convened, or a retired judge.
(e) Location of Arbitration. The location of the arbitration proceeding shall be no more than 45 miles from the last place you used the Platform prior to the claim arising, unless each party to the arbitration agrees in writing otherwise.
(f) Costs. For Professionals, NurseDash will pay the AAA filing, administrative and arbitrator fees associated with the arbitration, except for the first $300.00 in administrative fees for any arbitration that is initiated by you. For Facilities, the parties shall equally split the AAA filing, administrative and arbitrator fees associated with the arbitration. In either case, each party will separately pay its counsel fees and expenses unless otherwise required by law.
(g) Exceptions to Arbitration Provision.
1. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without abridgment of the powers of the arbitrator, provided the remainder of any such dispute shall be subject to arbitration.
2. This arbitration provision shall not apply to Claims that are not subject to pre-dispute agreements to arbitrate.
(h) Acknowledgment. YOU HAVE READ AND UNDERSTAND SECTION 15, WHICH DISCUSSES ARBITRATION. YOU UNDERSTAND THAT BY ACCEPTING THE TOS, YOU AGREE TO SUBMIT ANY CLAIMS ARISING OUT OF OR RELATING TO, (a) THIS TOS, OR THE EXISTENCE, BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY HEREOF, OR (b) YOUR ACCESS TO OR USE OF THE SERVICE AT ANY TIME, WHETHER BEFORE OR AFTER THE DATE YOU AGREE TO THIS TOS, TO BINDING ARBITRATION, EXCEPT AS PROVIDED IN SECTION A-15(g), AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF YOUR RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE PARTIES. YOU FURTHER ACKNOWLEDGE THAT, PURSUANT TO THIS PROVISION, YOU ARE PRECLUDED FROM BRINGING ANY CLASS, CONSOLIDATED, REPRESENTATIVE OR COLLECTIVE ACTION AGAINST NURSEDASH.
(i) Substantive Law in Arbitration Proceeding. The arbitrator shall apply the law of the state in which you last used the Platform to request or provide Professional Services. For the avoidance of doubt, questions regarding the scope, enforceability, or other aspects of this Section 15 shall be subject to the terms of Section 17 below.
(j) Changes. NurseDash may modify, revise, or terminate the terms of this Section 15 by giving you at least 30 days’ advance notice of the modification, revision, or termination. Any such modification, revision, or termination shall not be effective as to claims for which a demand for arbitration is or has been made prior to the effective date of the modification, revision, or termination.
(k) Jury Waiver. Without limiting the parties’ agreement to arbitrate in any way, you and NurseDash agree to waive a jury trial of any dispute, controversy, or claim between them that is not submitted or compelled to arbitration for any reason whatsoever.
16. GOVERNING LAW
(a) Governing Law. The TOS will be construed in accordance with and governed by the laws of the State of Texas, without regard to conflicts of laws principles. Without limiting the agreement to arbitrate set forth in Section 15, you and NurseDash agree the exclusive venue for resolving any dispute between you, including but not limited to any dispute arising out of or related to the TOS, that is not submitted or compelled to arbitration for any reason shall be in the state and federal courts located in Harris County, Texas, and you consent to the jurisdiction of the federal and state courts located in Harris County, Texas; provided, however, the foregoing shall not limit or displace in any way the scope of the parties’ agreement to arbitrate in Section 15. You further acknowledge and agree that many of the witnesses and records that would be relevant to any dispute between the parties are located in Houston, Texas, and that Houston, Texas, would not be an inconvenient forum for the resolution of any dispute between the parties. You hereby waive any objection to Houston, Texas, as a forum and venue for the hearing of any dispute between you and NurseDash that is not compelled to arbitration for any reason, including but not limited to any objection based on convenience. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOS.
17. California Residents
In accordance with California Civil Code §1789.3, if you are a California resident or access or use the Service from California, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
(a) Independent Contractors. The relationship between NurseDash and you established by the TOS is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of the TOS will be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party notifies the other in accordance with this Section A-18(b):
Attn: Legal Department
945 McKiney St. #11665
Houston, Texas 77002
Your physical address, fax number or email address as specified in the Registration Information.
(c) Publicity. NurseDash may identify you as a customer of NurseDash within NurseDash websites or press releases, brochures or other marketing materials disseminated by NurseDash.
(d) Assignment. You may not assign the TOS, or sublicense, assign or delegate any right or obligation under the TOS, by operation of law or otherwise, without the prior written consent of NurseDash. The TOS will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of the TOS: (i) the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the TOS as a whole. The TOS will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. The TOS contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter.
(g) Amendment. The TOS may not be amended by you except in a writing executed by an authorized representative of each party.
(h) Severability. If any provision of the TOS is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOS.
(i) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of the TOS, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(j) Force Majeure. Neither party will be liable for any failure to perform under the TOS to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, acts or omissions of third party technology providers, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
1. Fees and Taxes
(a) Fees. Upon the completion of a Service Request, the Facility that posted such Service Request shall pay the Professional who performed the Professional Services the fee set forth in the posting for that Service Request (“Professional Services Fee”). Facility shall pay the Professional Services Fee to the Professional through the Service. All fees are in US dollars unless otherwise specified herein or on the Service. The Professional Services Fee is an hourly rate set at a Facility’s discretion at the time of posting a Service Request.
(b) Taxes. Any and all amounts payable under the TOS by you are exclusive of any value-added, sales, use, excise and other similar taxes (collectively, “Taxes”). You are solely responsible for paying all applicable Taxes. If NurseDash has the legal obligation to collect any Taxes, you will promptly reimburse NurseDash upon invoice. If you are required by law to withhold any taxes from your payments to NurseDash, you will provide NurseDash with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
(c) Payment Method. When you create an Account, you must provide valid credit card information or automated clearinghouse account information (“Payment Information”). By providing your Payment Information, you hereby authorize NurseDash and its third-party payment processor to immediately charge you for all charges due and payment to NurseDash and to any Professional in connection with your Account and accept the terms for payment processing instituted by such third-party payment processor, and you further agree that no additional notice or consent is required. NurseDash cannot control, and hereby disclaims all liability associated with, any fees that may be charged by your bank in relation to collection of the Professional Services Fees. Furthermore, you shall immediately notify NurseDash of any change in your Payment Information, including your billing address, used for payment hereunder.
(d) Refunds. NurseDash has no obligation to provide refunds or credits, but may grant them in extenuating circumstances in its sole discretion. If you believe NurseDash made an error in processing your payment(s), please contact NurseDash at the contact information listed in Section A-18(b).
(e) No Circumvention. You acknowledge that one benefit of the Platform is your ability to access a wide network of Professionals and that you would not otherwise have access to such Professionals. Therefore, it is a violation of the TOS to intentionally avoid the payment of fees to NurseDash by contracting directly with Professionals outside of the Platform. You must immediately notify NurseDash if another User requests that payment be made through channels other than those provided or specified by NurseDash. Notwithstanding the foregoing, nothing in the TOS shall prohibit you from entering into an employment relationship directly with Professionals.
1. Discretion and Relationship
(a) Discretion to Use the Service. You retain complete and total discretion as to when you use and do not use the Service. There are no set times or days during which you must use the Service and you may choose not to use it all. Service Requests are posted through the Service by Facilities, not NurseDash, and you retain total and complete discretion as to which Service Requests you submit a Service Application for and which you do not. There is no requirement that you submit a Service Application to any Service Request or any minimum number of Service Applications you must submit.
(b) Discretion to Provide Services. NurseDash may not direct or control your interactions with Facilities, your provision of Professional Services to Facilities, or your acts or omissions (for example, nothing herein requires you to wear or present any NurseDash branding in connection with performing Professional Services). The Service merely makes Service Requests visible to you, and you retain total and complete discretion as to when to use the Service, whether to respond to any Service Requests, and your provision of Professional Services to Facilities. Moreover, you and NurseDash acknowledge and agree that you retain total and complete discretion to provide other services or otherwise engage in any other business activities, including using software similar to the Service provided by NurseDash’s competitors. You and NurseDash further acknowledge and agree you may provide services to Users without use of the Service and thus outside the scope of this Agreement.
(c) Service Requests Not Guaranteed. NurseDash does not and cannot guarantee that Facilities will post Service Requests, that any Facility will engage you to perform Professional Services, or that a Service Request will not be cancelled by the applicable Facility.
(d) Qualifications. You represent that you are duly licensed (as applicable) and have the experience, qualifications, and ability to perform each Request you accept.
(e) No Authorization. You acknowledge and agree that you are not the agent or representative of NurseDash and are not authorized to make any representation, contract or commitment on behalf of NurseDash.
(f) No Reimbursement. NurseDash does not and cannot reimburse you for any expenses you incur as a result of your performance of Professional Services for Facilities.
(g) No Employment Relationship. YOU ACKNOWLEDGE AND AGREE THAT THERE IS NO EMPLOYMENT, PART-TIME EMPLOYMENT, CONSULTING, CONTRACTOR, PARTNERSHIP, OR JOINT VENTURE RELATIONSHIP WHATSOEVER BETWEEN YOU AND NURSEDASH. NurseDash is not an employment service or agency and does not secure employment for you. You acknowledge and agree that you are not entitled to, and hereby elect not to participate in (on either a prospective or retrospective basis), any of the benefits that NurseDash makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and you hereby waive any rights to receive any such benefits).
(h) Consent to Text Messages and Phone Calls. You consent to receiving text messages and phone calls from NurseDash at the phone number provided in your Registration Information for the purpose of communicating information regarding Service Requests. You are solely responsible for any costs you incur when receiving text messages, including any carrier charges that apply for receiving such text messages.
2. Registration Information.
(a) Maintaining Accuracy. You represent and warrant that (i) any health-care related license numbers (e.g. Registered Nurse license number) (“Licenses”) you provide NurseDash in your Registration Information or otherwise are valid and in force, (ii) such License(s) will remain in full force for so long as you submit Service Applications for Service Requests requiring any such License(s), and (iii) you will notify NurseDash and all Facilities that you have agreed to perform future Professional Services for you if you: (a) become barred from practicing in any jurisdiction, (b) lose any of your License(s), (c) are facing disciplinary actions, or (d) make any changes to your Registration Information.
(c) Background Information on Professionals. Your ability to provide Professional Services is subject to you passing a background check, which will be conducted by a third party engaged by the Service to provide background checks and will include identity verification, sex offender registry checks, global watch list registry check, national criminal records check, and county criminal records check. The Service or its third-party contractor will separately provide you with additional information regarding this background check, including appropriate notice and authorization forms. Additional background checks may be required from time to time to remain eligible to provide Professional Services.
3. Professional Payment Terms.
(a) Payment of Fees. For each Completed Service that you perform, you will receive from the Facility, by way of the Service, the applicable Professional Services Fees, less a service fee designated within the Service for access to and use of the Service and processing of payment (“Service Fee”). You will enter your current bank account information within your Account, and you agree that NurseDash’s third-party payment processors and NurseDash may transfer to such bank account the Professional Services Fees, less the applicable Service Fee (“Net Fees”), you are owed, if any, with respect to each Completed Service that you perform. Net Fees owed to you will be deposited in your bank account within a reasonable time of a Service Request for which you provided Professional Services being marked as a Completed Service on the Service. You, and not NurseDash, are solely responsible for the accuracy of your bank account information, including your bank account number and routing information. NurseDash hereby disclaims all liability related to errors in fund deposits due to inaccurate or incomplete bank account information. IF NURSEDASH IS UNABLE TO COLLECT ANY FEES THAT ARE OWED TO YOU, NURSEDASH WILL INFORM YOU IN WRITING. HOWEVER, NURSEDASH HAS NO OBLIGATION TO IMPOSE COLLECTION PROCEDURES ON FACILITIES AND DOES NOT GUARANTEE PAYMENT FROM FACILITIES.
(b) Taxes. You are solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to your performance of Professional Services and receipt of Net Fees or any other fees in connection with Professional Services. You are exclusively liable for complying with all applicable federal, state, and local laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to you by Facilities in connection with a Completed Service or otherwise received by you through the Service. NurseDash will not withhold or make payments for taxes, social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. You hereby agree to indemnify and defend NurseDash against any and all such taxes or contributions, including penalties and interest. NurseDash cannot and does not offer tax advice to Users.