Last updated March 16, 2023
1. Description of Services.
- Company offers the Site for individuals seeking care services (such as nursing care, occupational therapists, physical therapists, speech therapists, respiratory therapists, dieticians, nursing assistants or home health aides) (such individuals hereinafter referred to as “Clients”) to post jobs on the Site and search for, find, communicate with and book such services from licensed, certified and otherwise qualified healthcare providers. Company also offers the Site for licensed, certified or otherwise qualified healthcare providers, including but not limited to nurse practitioners, registered nurses, licensed vocational nurses, occupational therapists, physical therapists, speech therapists, respiratory therapists, registered dieticians, certified nursing assistants, and/or home health aide (collectively, “Providers”) to post their profiles on the Site and search for, apply to and book jobs posted by Clients on the Site. The services provided by the Company as referred to throughout this Agreement are hereinafter referred to as the “Services.”
- Company’s role in facilitating connections between Clients and Providers is to verify the Provider’s contact information, licensing, training, skills, experience and proof of professional liability insurance prior to Providers publishing their profile to the Company’s Site. Company does not guarantee or represent or warrant that the information provided by Providers or Clients is accurate or complete. The Company may, in its sole discretion, as part of its vetting process also obtain background checks of Providers through a third-party vendor, CheckR (see https://checkr.com/). The use of reports obtained from background checks obtained by the Company is governed by applicable state and federal law. The Company may review the information provided in background checks and may use such information to determine whether to terminate a Registered User’s registration on and/or access to the Site, even if such information is thereafter changed or corrected. If the Company terminates a Registered User’s registration and/or access to the Site or Services due to the information contained in a background check, the Company will notify the Registered User and provide a copy of the report unless the consumer reporting agency has already provided a copy of the report to the Registered User.
- In consideration for the Site and Services provided by the Company, the Company shall collect a fee of five percent (5%) from each transaction invoiced and paid through, in connection with or as a result of the Site and/or Services (“Fee”). Failure to pay the Fee when due and/or submitting invoices outside of the Site shall constitute a material breach of this Agreement and result in the termination of the applicable Registered User(s) registration and/or access to the Site and Services. The parties hereto acknowledge and agree that the Fee is reasonable and consistent with fair market value in an arms-length transaction.
- Services provided by Providers and obtained by Clients shall be private pay only, meaning that third parry insurance payors, Medicare, Medicaid, or other federal or state government payors cannot be invoiced for services rendered by Providers through or in connection with the Site and/or Services.
- Company does not refer, recommend or assign Providers or Clients, nor does Company make any representations or warranties about the suitability, fitness for a particular purpose, reliability or accuracy of any of the services, actions or content provided by Providers or Clients. Clients and Providers are strongly advised to conduct their own due diligence in choosing to provide or accept services. Information published on the Site is for informational and educational purposes only. Company does not warrant that information published to the Site by or on behalf of Clients or Providers or otherwise is complete, accurate, or current.
- Company is not an employment agency and does not arrange or obtain employment for Providers or Clients. Company does not hire, engage, supervise, oversee, monitor or in any way control the terms of, and services required for, positions posted by Clients, including but not limited to schedules and rates of pay. Company makes no promise or guarantee of any job assignments based on a Provider’s postings and Providers are not required to accept any job posts or provide services to Clients.
- Company does not provide any medical, diagnostic, treatment or clinical service or engage in any conduct services which require a professional license. Company makes no representations or warranties and expressly disclaims any and all liability concerning any diagnosis, treatment, advice or services provided by Providers. Clients are advised to consult with a professional if they have specific concerns or questions. All content and information on the Site is for informational and educational purposes only, and does not constitute professional financial, medical, legal, or other advice. Although the Company strives to provide accurate general information, the information presented on the Site is not a substitute for any kind of professional medical or other advice, diagnosis or treatment. Clients are instructed to always seek the advice of their physician or other qualified health care provider with any questions they have regarding a medical condition or treatment and before undertaking a new health care regimen.
- The relationship of Company and Registered Users is that of independent contractors. Nothing in this Agreement, and no course of dealing between the parties, will be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties. Each of the parties is an independent contractor and neither Company nor Registered User has the authority to bind or contract any obligation in the name of or on account of the other party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other party, or otherwise act on behalf of the other.
2. Registered Users’ Obligations.
- The terms of, and services required for, all jobs posted on the Site, including but not limited to schedules and rates of pay, shall be agreed upon by and between Providers and Clients. Providers may be required to prepare a plan of care for Clients based on the regulations of the Provider’s governing board and/or the Client’s physician’s orders.
- Registered User hereby agrees that all information provided by Registered User to the Company upon Company’s reasonable request and as otherwise required to enable the Company to provide the Services shall be true, accurate and complete. Registered User will register its account in Registered User’s own legal name, even if such Registered User is seeking healthcare for another individual or family member. Registered User also hereby authorizes the Company to share such information provided by the Registered User with Company’s third-party vendors, including but not limited to CheckR for purposes of obtaining a background check and Stripe for purposes of processing payments for services provided by Providers.
- By registering for and using the Site and/or Services, Registered Users who are Providers hereby acknowledge and agree that the Company has the right, but not the obligation, to obtain background checks upon registration and for as long as the Provider uses the Site and/or Services for the purpose of protecting the safety and integrity of the Site, the Clients and other users. Registered User acknowledges and agrees that the Company may review the information provided by background checks and may use such information to determine whether to terminate Registered User’s registration on the Site, even if such information is thereafter changed or corrected. Registered User hereby acknowledges and agrees that the Company does not control nor does it assume any responsibility or liability for any of the information contained in a report obtained in a background check. Registered User is responsible for correcting any inaccuracies in the background report directly with the applicable consumer reporting agency within the required time period. Notwithstanding the foregoing, the Company is not obligated to reinstate any registered accounts or access if such information is subsequently corrected.
- By registering for and using the Site and/or Services, Registered Users who are Clients hereby acknowledge and agree that reports obtained through background checks requested by the Company are confidential and will not be provided to Clients or other third parties, except with the express prior written authorization of the Provider who is the subject of the background check. Clients’ requirements and concerns may differ from the background checks obtained by the Company; therefore, Clients are advised to obtain their own background checks and/or perform their own diligence before hiring a Provider.
- Registered Users who are Providers hereby agree to invoice Clients for all services rendered by the Provider by and through the Site and the Site’s third-party payment processor, Stripe. Providers shall submit invoices to Clients through the Site weekly and/or within twenty-four (24) hours of the conclusion of assignments that last less than one week. Failure to submit invoices to Clients through the Site shall result in the immediate termination of this Agreement and removal of Provider’s profile from and access to the Site.
- Registered Users who are Clients hereby agree to pay Providers through the Site, via Stripe, within twenty-four (24) hours of receipt of an invoice submitted by Providers. Registered User hereby authorizes the Company, or Stripe, to charge the method of payment, subject to the payment terms agreed with Stripe, for payment of the invoice submitted by a Provider and the Fee collected by the Company. In the event payment of an invoice remains outstanding for forty-eight (48) hours after it is due, such Client will not be entitled to post a new assignment until the invoice is paid in full. Failure to pay invoices to Providers through the Site (via Stripe) shall result in the immediate termination of this Agreement and removal of Client’s and/or Provider’s job postings and/or profile (as applicable) from and access to the Site.
- Registered User acknowledges and agrees that (i) the Company assumes no liability or responsibility for any payments Clients make to Providers through the Site and/or Stripe and (ii) all payments made through the Site and/or Stripe, including the Fee, are non-refundable. Registered User hereby authorizes the Company to collect the Fee from payments made by Clients to Providers.
- Registered User acknowledges and agrees that none of the services provided by Providers to Clients shall be subject to payment or reimbursement by Medicare, Medicaid, any other federal or state government payor or any other third-party payor. All services provided by Providers to Clients are private pay only. Registered User acknowledges that the Company has not made any representations whatsoever that any services rendered by Providers or fees paid by Clients are covered by Client’s health insurance or other third-party payment plans applicable to the Client. By registering for and using the Site and/or Services, Registered User acknowledges and agrees that Medicare cannot be billed for any services rendered by a Provider. Registered User further agrees not to bill Medicare or attempt Medicare reimbursement for any such services.
- Registered User acknowledges and agrees that it may be obligated to report as self-employment income all compensation received by a Provider, and to comply with all federal, state and local tax laws applicable to Provider. Registered User acknowledges and agrees that as an independent contractor, Provider shall not be eligible to participate in any health insurance, retirement plan, bonus, meals, sick pay or vacation pay or other benefits of employment provided by Company to its employees.
- Registered User shall obtain workers’ compensation insurance coverage to the extent required by applicable law. Registered User acknowledges and agrees that Company shall not provide worker’s compensation coverage for Registered User and that Registered User is not entitled to such coverage and waives any right to make a claim against Company for any injury suffered during the performance of services by Providers.
- If Registered User is a Provider, Registered User shall maintain in force, at all times, a policy of comprehensive professional liability insurance with minimum limits of $1,000,000 per occurrence and $3,000,000 in the aggregate. Upon execution of this Agreement and upon request by Company and/or Client, such Registered User shall furnish Company and/or Client with evidence acceptable to Company and/or Client that such a policy is then in full force and effect.
3. Limitations to Use of or Access to the Site.
- Security. Registered User will be solely responsible for (i) the security, confidentiality and integrity of all content that Registered User posts to the Site, and (ii) any authorized or unauthorized access to Registered User’s account by any person. Company, its affiliates, subsidiaries, members, managers, directors, officers, employees, successors and assigns will have no obligation or responsibility for the content or accuracy of Registered User’s profile or job posting uploaded to the Site.
- Privacy. Access to and use of the Site and Services is subject to the Privacy Notice governing the Site.
- Accessibility. Registered User agrees that from time to time the Site may be inaccessible or inoperable for any reason, including without limitation (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company.
- Equipment. Registered User will be solely responsible for providing, maintaining and ensuring compatibility with the Site, all hardware, software, electrical and other physical requirements for Registered User’s use of the Site and the Services, including without limitation telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Site.
4. Registered User Representations. Registered User represents and warrants that:
- Registered User is over the age of eighteen (18) and has the authority to enter into and perform Registered User’s obligations under this Agreement.
- The execution, delivery and performance of this Agreement by Registered User does not and will not conflict with, breach, violate or cause a default under any contract, covenant, agreement, instrument, order, judgment or decree to which Registered User is a party of or by which Registered User is bound.
- Registered User has provided and will provide accurate and complete registration information, including without limitation Registered User’s legal name, address, telephone number, email address, proof of license (if applicable), and proof of insurance (if applicable).
- All information provided by Registered User to Company is truthful, accurate and complete.
- If Registered User is a Client, Registered User further represents and warrants that neither Registered User nor any member of Registered User’s household (i) has ever been convicted of, indicted or charged with or pleaded nolo contendre to any felony, any other criminal offense involving violence, physical, sexual, or emotional abuse or neglect, or theft, or drugs, or any offense, violation, or unlawful act that involves endangering the safety of others, fraud, dishonesty, or reckless or negligent conduct, and/or (ii) registered, or is currently required to register, as a sex offender with any government entity.
5. Term; Termination.
- Company’s receipt, use and maintenance of information submitted to the Company via the Site, the Services or otherwise will be governed by this Section.
- Company will use information for the purpose of providing the Services.
- In addition to other safeguards set forth in this Agreement, Company agrees to employ the following additional safeguards to protect information submitted to the Site:
- Information submitted to the Company will be saved to the cloud, with backups to be performed daily.
- Access levels and roles/responsibilities will be controlled by login information and will be password protected.
- Notwithstanding anything to the contrary herein, Company will have no obligation to preserve the confidentiality of information provided to the Company that it can demonstrate was previously known by Company free of any obligation to keep it confidential, is or becomes publicly available (other than by unauthorized disclosure), is independently developed by Company or is received by Company from a third party under no obligation of confidence to a disclosing party.
- Notwithstanding anything to the contrary herein, if Company is requested in any judicial or administrative proceeding or by any governmental or regulatory authority to disclose information uploaded to the Site, to the extent legally permissible, Company will give to such disclosing party prompt written notice of such request so that such disclosing party may seek an appropriate protective order. If, in the absence of a protective order, Company is nonetheless compelled to disclose such information, disclosure may be made hereunder by Company without any liability. In such instances, Company will disclose only such information as its legal counsel has advised Company must be disclosed pursuant to such process.
- HIPAA. To the extent required by applicable law, the parties agrees to comply with the Health Insurance Portability and Accountability Act of 1996 and the then applicable regulations promulgated thereunder, all as amended from time to time (collectively, “HIPAA”), and any applicable state laws and regulations that govern the confidentiality, privacy or security of health information.
7. Company Work Product.
- For purposes of this Agreement, “Work Product” includes the procedures, methods, techniques, databases, data compilations, software programs and applications, forms, copyrights, trademarks, service marks, trade names, patents, inventions, trade secrets, products, confidential and proprietary material and/or intellectual property that are developed or created by or for, or are licensed from third parties by, Company to generally conduct its business and are used or applied by Company or its personnel to develop or create the Site and/or the Services.
- The copyright in the Site, related software, Work Product and all Services will belong to Company. All intellectual property rights in the Site, related software, Work Product and all Services, made, conceived, created, discovered, invented or reduced to practice in the performance of the Services hereunder, are and will remain the sole and absolute property of Company (collectively, “Company Property”). Company Property will not be considered “work made for hire” within the meaning of the United States Copyright Act, Title 17, but will instead be construed as Company’s intellectual and proprietary works.
- The Site and related software is protected by United States and international copyright laws, trademark and other proprietary and intellectual property rights. The compilation (meaning the collection, arrangement and assembly) of all content within the Site is the property of Company and is protected by applicable copyright laws. Company expressly reserves all intellectual property rights in all text, products, technology, content and all other material that appears within the Site. The license granted under this Agreement or other written agreements between the parties is not a sale of the Site, related software, Work Product, or Company Property and does not grant Registered User any ownership rights to or in the Site, related software, Work Product, or Company Property.
- To the extent Company Property is reflected in any Services, Registered User acknowledges and agrees that no claims, title, proprietary or intellectual property rights or interests will be transferred by delivery of the Services; provided, however, that Company hereby grants a non-exclusive, non-transferable, royalty free license to use the Company Property to the extent and as reflected in the Services.
8. Disclaimer of Warranties.
THE SERVICES AND SITE ARE PROVIDED BY COMPANY AND ACCEPTED BY REGISTERED USER “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS.” COMPANY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. COMPANY DOES NOT WARRANT THAT ACCESS TO THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY WEBSITE OR SERVER THAT MAKES THE SITE OR SERVICES AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE SITE OR SERVICES IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. COMPANY WILL NOT BE LIABLE FOR ANY SERVICES OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO THE REGISTERED USER BY COMPANY DURING THE TERM OF THIS AGREEMENT.
9. Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO REGISTERED USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE SITE GENERALLY, INCLUDING WITHOUT LIMITATION REGISTERED USER’S USE OR INABILITY TO USE THE SITE OR SERVICES, ANY CHANGES TO OR INACCESSIBILITY OF THE SITE OR SERVICES, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR ANY MATERIAL SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SITE, ANY MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE OR SERVICES, NOR FOR THE ACTIONS OF REGISTERED USER OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICES OR ANY AGREEMENT OR RELATIONSHIP FORMED USING THE SITE OR SERVICE (INCLUDING BUT NOT LIMITED TO BODILY INJURY, EMOTIONAL DISTRESS OR OTHER DAMAGES), WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. THE FOREGOING LIMITATION INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM USERS, INCLUDING PROVIDERS AND CLIENTS. IF REGISTERED USER IS DISSATISFIED WITH THE SITE OR SERVICES, REGISTERED USER’S SOLE AND EXCLUSIVE REMEDY WILL BE FOR REGISTERED USER TO DISCONTINUE USE OF THE SERVICES AND THE SITE AND TERMINATE THIS AGREEMENT.
- The parties agree that this Agreement constitutes a legal, valid and binding obligation of Company and Registered User, enforceable against Company and Registered User in accordance with its terms.
- Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either party without the prior written consent of the other party; provided, however, that Company may assign, transfer or convey its rights, benefits and/or obligations hereunder (whether by merger, consolidation, operation or otherwise) to a parent, subsidiary or affiliate thereof or to an entity into which Company is merged or with which Company is consolidated or to a purchaser of all or substantially all of its assets or capital stock or as part of a corporate reorganization, and Company may collaterally assign its rights and benefits hereunder to any lender, for security purposes or as collateral.
- A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of law of such state. Any legal suit, action, or proceeding arising out of, or related to, this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas. Registered User waives any and all objections to the exercise of jurisdiction over Registered User by such courts and to venue in such courts.
- Each party recognizes that any actual or threatened breach of this Agreement may cause irreparable harm and be exceptionally difficult to quantify such that each party will be entitled to injunctive relief or a decree of specific performance upon a proper showing of such a violation, without the necessity of demonstrating actual monetary damage.
- If any provision or portion of this Agreement is rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
- The failure of either party to enforce any provision of this Agreement will not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.