Terms of Service

Last Updated: April 1, 2024

PLEASE READ CAREFULLY

THIS IS A BINDING CONTRACTUAL AGREEMENT AND BY USE OF THIS WEBSITE, YOU ARE AGREEING TO ENTER INTO THIS TERMS OF SERVICE AGREEMENT AND YOU ARE ACCEPTING, ACKNOWLEDGING, AND AGREEING TO ALL TERMS AND OBLIGATIONS AS OUTLINED BELOW.  YOU ARE HEREBY ADVISED TO SEEK LEGAL COUNSEL BEFORE ENTERING INTO ANY LEGALLY BINDING CONTRACTUAL AGREEMENT.‍

YOU MUST BE AT LEAST 18 YEARS OF AGE TO AGREE TO THIS TERMS OF SERVICE AGREEMENT, OR THE AGE OF MAJORITY CONSENT IN YOUR JURSIDICTION, WHICHEVER IS GREATER, AND OF LEGAL AGE TO FORM A BINDING CONTRACTUAL CONTRACT. IF YOU ARE NOT OF LEGAL AGE TO CONSENT TO THE TERMS HEREIN, YOU ARE NOT AUTHORIZED TO USE THE GAPNURSE PLATFORM.
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Effective 4/1/2024

This Terms of Service Agreement (“Agreement”) is entered into by you, as a Clinician or Facility (“Clinician,” “Facility,” “you”, or “your”) as defined below and alchem8 USA, LLC, d/b/a GapNurse (“GapNurse,” “Company,” “we,” “us,” “our”) at 30 N Gould St. Ste R Sheridan, WY 82801(“GapNurse”). Unless otherwise defined, the parties may mutually be referred to as a “Party” or the “Parties.” In consideration of the mutual covenants, terms and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

These Terms of Service consist of four (4) categories, and the applicability of each category to you depends upon the nature of your access to or use of the Service or your relationship with GapNurse.

Category 1. Terms Applicable to All Users: Applies to anyone who accesses or uses the GapNurse Platform.

Category 2. Terms Applicable to Only Clinicians: Applies to you to the Extent that you access or use the GapNurse platform as a Facility

Category 3. Terms Applicable to Only Facilities: Applies to you to the extent that you access or use the GapNurse Platform as a licensed or certified health care professional.

Category 4. Additional Terms and Conditions

DEFINITIONS

 “Assignment” means a specified date and time during which a Clinician is contracted to perform professional healthcare services for a Facility. Assignments are advertised on GapNurse by Facilities and requested via GapNurse by Clinicians.

“Clinician” an independent business owner acting as an independent contractor and licensed or certified health care professional who is free from licensure encumbrances, legally eligible, and permitted to request to work Assignments, advertised by a Facility through GapNurse, and negotiate pay rates on their own behalf, and has successfully completed the GapNurse onboarding process, for the purpose of providing to the Facility professional health care services.

“Confidential Information” means information about the Company and its customers and its customer prospects, Proprietary Information, Clinicians and Facilities utilizing GapNurse (other than you), and/or vendors with which the Company partners or contracts that is not generally known outside of the Company and that you learn or may have access or have been privileged to in connection with your involvement or engagement with the Company. Confidential Information may include but is not limited to: (1) the Company’s business policies, finances, pricing lists, financial information, processes, procedures, internal workings, and business plans; (2) the Company’s financial projections, including but not limited to, annual sales forecasts and targets and any computation(s) of the market share of customers and/or customer prospects, including Clinicians and Facilities; (3) the identity of the Company’s customers, customer prospects, and/or Clinicians and Facilities including but not limited to names, addresses, telephone numbers, emails, protected or regulated personal identifying information, health information, or any information in any way that may be or has been disclosed to you through the use of GapNurse or disclosed from Company or its employees; (4) any list(s) of the Company’s customers, customer prospects, vendors, or partners, including Clinicians and Facilities; (5) the names and addresses of the Company’s employees and other business contacts of the Company; and (6) the techniques, methods, and strategies by which the Company develops, manufactures, markets, distributes its services, and (7) other information that reasonably should by its nature be considered confidential.

“Facility” (or its plural) means a licensed provider of healthcare services and or its employees, institution, place, building, or portion thereof, whether a partnership or corporation, whether public or private, used, operated, or engaged in providing professional health care services to patients and that advertises available assignments on GapNurse for per diem, part time, extended periods of time, or other Assignments for request by Clinicians.

“GapNurse” collectively: (1) GapNurse – the company, (2) “Platform”, (3) “The GapNurse Platform”, (4) “our Platform” (5) “app”, (6) “mobile app”, (7) “the GapNurse app” (8) Portal, (9) Facility Manager’s Portal, is a proprietary technology-enabled Contingent Workforce Management software product, that enables the promotion, advertisement, and distribution of Assignment and other information and enables transactional payments to Clinicians requesting and completing Assignments as participants in a Clinician-Facility Marketplace, but does not engage in providing healthcare services in any manner.

“Marketplace” collectively includes all Clinician business owners, acting individually, as a corporation, partnership, sole proprietorship, or other legal entity, and who have elected to register on the GapNurse app for the purpose of using the Platform to request Assignments advertised by Facilities, and who does not operate or perform any services, under its licensed or credentialed authority, at or from a physical business location owned or operated by GapNurse.

“Proprietary Information” means and shall include but is not limited to any and all works, trademarks, discoveries, developments, methods, processes, compositions, lists, tables, concepts, and ideas, domain names, trade secrets, copyrights, ideas, techniques, technical data, know-how, inventions, and/or any other information of any type relating to designs, configurations, drawings, documentation, recorded data, schematics, circuits, mask works, layouts, source code, object code, master works, master databases, algorithms, flow charts, formulas, works of authorship, mechanisms, research, manufacture, improvements, assembly, installation, intellectual property including patents and patent applications, photographs, negatives, digital images, software, computer programs, ideas, research, developments, inventions processes, technology, designs, engineering, hardware configuration information, forecasts, strategies, marketing, finances or other business information and the information concerning the Company’s actual or anticipated business, research or development, or which is received in confidence by or for the Company from any other person which is conceived, made, developed, maintained, created, or reduced to practice by company or that you encounter during your use of our Platform or engagement with Company, which may be directly or indirectly useful in, or related to, the business of the Company or any business or products contemplated by the Company.

“User” means collectively, Clinicians and Facilities

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CATEGORY 1. TERMS APPLICABLE ONLY TO ALL USERS

 

1.  ACCEPTANCE OF THIS AGREEMENT

1.1.

Age and Authority. You must be at least 18 (eighteen) years of age to use GapNurse. By agreeing to this Agreement, by any use of GapNurse, or by creating a profile in GapNurse, you represent and warrant that you are at least 18 years of age, have the legal capacity and authority, consent, or agency to enter into this Agreement on behalf of yourself the Facility entity, or any other entity on behalf of whom you are signing. We assume no responsibility or liability for any misrepresentation of your age or authority.

1.2.

Acknowledgement. You acknowledge that you are entering into this Agreement freely by either clicking “I agree” at the bottom of this Agreement, by any use of GapNurse, by signing or acknowledging this Agreement, and / or creating a profile in GapNurse as a Clinician or a Facility. In doing so, you expressly acknowledge that you understand this Agreement in its entirety and accept all its terms and conditions. If you do not agree to be bound by the terms and conditions of this Agreement, you shall not use or access our Platform or any of the services provided through our Platform. Unless otherwise designated, each term, condition, or obligation as stated herein shall apply to and be binding upon each Clinician and Facility. You further acknowledge that your transaction or signature may not be denied legal effect because such acknowledgement or signature is conducted or executed in electronic form. If a record or signature is required by any law, you consent that your electronic record, signature, or acknowledgment satisfies that requirement.

1.3

Updates. GapNurse may amend this Agreement from time-to-time. Amendments will be effective upon GapNurse advertising such updated Amendments at this location. Your continued access or use of the Platform after such advertising constitutes your consent to be bound by the Agreement, as amended. We may assign our rights and duties under this Agreement without such assignment being considered a change to this Agreement and without notice to you.
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2.  LICENSE AND AGREED USE OF GAPNURSE

2.1.

Services. GapNurse is a software platform whereby Facilities and Clinicians may connect for the promotion, advertising, viewing, requesting, and acceptance of Assignments. GapNurse is not a healthcare provider and does not provide healthcare services, nor does it provide, employ, refer, assign, list, advertise on behalf of either Clinician or Facility, or place healthcare providers who utilize its software platform.

2.2.

Relationship Responsibilities. The Parties hereby acknowledge and agree that: (a) Facilities have the sole responsibility to accept or decline any Clinician Assignment request; (b) any Assignment that is listed on GapNurse is not the product of or subject to the control of GapNurse, (c) all information contained in any advertised Assignment and any error, or other discrepancy regarding a advertised Assignment is the sole responsibility of the Facility who shall also bear any and all liability, in any way, therefrom; (d) Clinicians request and accept all Assignments voluntarily and at their own discretion not subject to the control of GapNurse; (e) all Clinicians using and accessing GapNurse are independent business owners acting as independent contractors as discussed herein; (f) are free to work where they choose, what services they are able and willing to provide in accordance with their license authority and are free to negotiate with Facility for satisfactory compensation for provided services; and (g) nothing contained in this Agreement will be deemed as creating an agency, employment, joint venture, or partnership relationship between any of the Parties for any purpose.

2.3.

Use and License. Through use of GapNurse, Facilities and Clinicians may connect for the advertising, viewing, requesting, and acceptance of Assignments.  This is the accepted use of The GapNurse Platform. GapNurse may provide you with certain information through the use of our Platform. Such information may include, but is not limited to, documentation, data, or information developed by the Company, provided by Facilities, provided by Clinicians, and other materials which may assist in your use of our Platform. Subject to this Agreement, the Company grants you a non-exclusive, limited, non-transferable and revocable license to use our Platform only for the use described herein. You may only access via the Platform the information necessary in connection with the acceptable use of our Platform, as we may deem appropriate. This information or documentation may not be used for any other purpose other than the sole and exclusive use of our Platform and this license terminates upon your cessation of the use of our app, suspension, or removal of your access by us, or upon termination as stated herein. Any granted or assumed license does not grant you any rights, interest, or title to other Intellectual Property as described herein. The license described herein may be revoked at any time or for any reason.

2.4.

Access to the Platform. We reserve the right to suspend or remove your access to and use of GapNurse at any time and for any reason, including but not limited to in relation to the safety interests of other users and/or those in their employ or care, failure to successfully complete legally required documentation, onboarding procedures or necessary background check screenings, untimely Clinician and Facility cancellations, and non-payment.

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3.  INTELLECTUAL PROPERTY

3.1.

Services. GapNurse has developed and owns a proprietary technology known as the GapNurse Platform and all rights to the text, images, software, trademarks, service marks, Confidential Information, Proprietary Information, other property contained on our websites, digital apps, software, or any other such tools, materials, or elements otherwise associated with the operations of our Platform in any way whatsoever (“Intellectual Property”). You shall have no right or title to and will not copy, obtain, disseminate, or transmit any Intellectual Property, except for your individual use in accordance with this Agreement or our Terms of Use, which are incorporated herein by reference. Nothing in this Agreement will be construed to grant the Parties any rights to or license under the Intellectual Property or under any related patent, patent application, trademark, copyright, know-how, or other intellectual property of GapNurse. All copyright, trademark and other proprietary rights notices included on our Platform as presented on our Platform must appear on all copies you print or create in any way if you have been granted such a license to use. Other products, services, or company designations, logos, trademarks, or the like that may exist on our Platform shall belong to their respective owners and any infringement there upon shall be pursuant to law. Your use of and access to our Platform does not grant you any license or right to use any of the marks included on our Platform in any way whatsoever. Any license or use of any Intellectual Property shall be only granted by us in writing.

3.2.

Nature of Intellectual Property. The Parties acknowledge and agree that the Intellectual Property protected by this Agreement is of a special, unique, unusual, extraordinary and intellectual character that money damages would not be sufficient to avoid or compensate for the unauthorized use or disclosure of the Intellectual Property or the breach of the covenants herein; and that specific performance, injunctive relief, and other equitable relief would be appropriate to prevent any actual or threatened use or disclosure of the Intellectual Property or breach of the covenants herein. The Parties also acknowledge that the interests of GapNurse in and to its Intellectual Property may be irreparably injured by disclosure of such Intellectual Property. The remedies stated above may be pursued in addition to any other remedies available at law or in equity for breach of this Agreement, and the Parties agree to waive any requirement for the securing or advertising of any bond or other security in connection with such remedy. Should litigation, including but not limited to arbitration, be instituted to enforce any provision hereof, the prevailing Party will be entitled to recover all costs, including, without limitation, reasonable legal fees, cost of investigation and cost of settlement.

3.3.

Duty of Confidentiality and Restriction. At all times during the term of this Agreement and surviving in the future and during your engagement or involvement with the Company, you, your agents, employees, and associated personnel, shall not directly or indirectly divulge, export, disclose, allow access, or otherwise disseminate any Intellectual Property outside of your use of GapNurse so long as it is in conformity with this Agreement. You acknowledge that you may request, receive, or may have previously obtained Intellectual Property in conjunction with your use of our Platform or association with the Company. The Parties acknowledge that GapNurse’s Intellectual Property may continue to increase in its amount, content, or duration and is not limited to any scope. Notwithstanding the foregoing, Intellectual Property shall not include any information that: (a) was in or entered the public domain through no fault of the Parties and not in violation of this Agreement; or (b) is disclosed to the Parties by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality. In the event that a Party is requested pursuant to, or required by, applicable law or regulation to disclose any Intellectual Property, or any other information concerning GapNurse that Party shall provide GapNurse with prompt written notice of such request or requirement in order to enable GapNurse (i) to seek an appropriate protective order or other remedy, (ii) to consult with the Parties with respect to GapNurse’s taking steps to resist or narrow the scope of such request or (iii) to waive compliance, in whole or in part, as required by the terms of this Agreement and to the extent allowable by law. If such protective order or other remedy is not obtained, or GapNurse waives compliance, in whole or in part, with the terms of this Agreement, the Parties shall use commercially reasonable efforts to disclose only that portion of the Intellectual Property that is legally required to be disclosed and to ensure that all Intellectual Property that is so disclosed will be accorded confidential treatment. All rights, title, and interest in and to the Intellectual Property will remain the exclusive property of GapNurse. You further agree that if you are questioned about information subject to this Agreement by anyone not authorized to receive such information, you will notify the Company within 24 hours of such a request. Please note that we assume no responsibility for reviewing unsolicited or solicited ideas, materials, or submissions for our Platform such as, but not limited to, product, platform use, or advertising ideas, and will not incur any liability because of any similarities between those ideas and materials that may appear in future GapNurse programs or content. You are responsible for whatever material you submit, including its reliability, originality, and copyright and agree that all rights to materials, ideas, submissions, submitted to us become the exclusive property of GapNurse.
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4.  USE AND SAFEGUARDS OF YOUR INFORMATION

4.1.

Use of Your Information. We will use Clinician and Facility information and data (“Your Information”) to provide service and use of our Platform as permitted by these terms and in accordance with our Privacy Policy, which is incorporated herein by reference. You acknowledge and agree that in order to provide any service and for you to use our Platform, we may: (a) copy Your Information that you store on our Platform, or on a third-party service to which you facilitate our access via an API (“application programming interface” or other means); and (b) modify and transfer Your Information back to such third party, all subject to such third party’s terms of service governing Your Information. We may retain copies of Your Information to comply with federal, state, and local laws and audits. You shall have sole responsibility for the accuracy, quality, and legality of Your Information provided on our Platform.  You warrant that all information that you provide to us in any way relating to your use of the GapNurse app, background check, or other process that we may request is accurate and complete and you shall indemnify us and hold us harmless from any inaccuracies, omissions, or erroneous information or documentation you may provide to us.

4.2.

Sharing of Your Information. In order to provide Clinicians and Facilities with a variety features and service, you authorize GapNurse the ability to share the following categories of Your Information with Clinicians, Facilities, or third parties for business use and in conjunction with your use of the GapNurse app, including but not limited to: (a) Clinician’s information, such as but not limited to your name, address, email address, phone number, date of birth, government identification number (such as social security number), driver’s license information; (b) financial information, such as bank routing numbers, tax information, and any other payment information you provide us; (c) internet or other electronic network activity information, such as your IP address, type of browser, version of operating system, carrier and/or manufacturer, device identifiers, and mobile advertising identifiers; (d) location or geo-location data;(e) any information or documentation that you, Clinician, upload or send through the GapNurse app, e.g., professional license information, credentials; certifications, or other professional merits or identifiers; (f)Clinician’s background check screening results as further discussed herein; (g) Clinician’s drug screen results or proof of drug screen; (h) Clinician’s vaccination records or proof of vaccination status; and (i) any other information or documentation you may provide or that may be used for the purpose of use of our Platform which you understand will not be redacted by GapNurse. We may monitor the performance and use of our Platform by each of our customers, including Clinicians and Facilities and combine related data including Your Information in an aggregated manner. You hereby agree and authorize GapNurse to collect, use, and publish such aggregate data, so long as such data is anonymous. Certain features of GapNurse are designed to benefit both the Clinician and the Facility, such as automatic location tracking. Use of the GapNurse app may require foreground location tracking for Clinicians to navigate to and or check in for an Assignment when the Clinician arrives at a Facility. This feature protects the Clinician if a Facility claims the Clinician did not show up for an Assignment and vice versa protects the Facility if a Clinician claims to work an Assignment for which they did not arrive at the Facility. This feature may not work if the mobile device running the GapNurse app is turned off or not running the most current version of the GapNurse app or the device’s operating system. Please note that automatic location tracking in the foreground may be required to use the GapNurse app and GapNurse’s processing of such information is in accordance with its Privacy Policy.

4.3.

Safeguarding Your Information. We shall utilize commercially reasonable physical, organizational, and technical safeguards to secure Your Information on our Platform from unauthorized and unwanted use or disclosure.

4.4.

Safe Removal of Your Personal Information. Upon your request or at any time inside of the mobile app, you may permanently delete your account and all records associated with it. Patient records with your identifying information shall be retained for a period of six (6) years to comply with government or court orders.
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5.  COMMUNICATIONS

5.1.

Opt-in. By entering into this Agreement or through use of our Platform, you acknowledge, consent, and hereby subscribe to receive communications from us or our affiliated partners, to your email address, telephone number, mobile number, physical address, or the like, including via email, text message, calls, social media communications, website communications, and push notifications. You acknowledge that we may use pre-recorded communications that may be generated by automatic telephone dialing systems. Communications from GapNurse or any affiliated partners may include but are not limited to: (a) operational communications concerning your account or use of our Platform,(b) updates concerning new and existing features on our Platform, (c) communications concerning promotions run by us or a third-party partners, and/or news concerning GapNurse and industry developments, or for any reason related to the use of our Platform or related services related. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You may receive messages on a periodic basis through different modes of communication from GapNurse or affiliated companies. We may also reach out to you to complete certain questions we may include, but not be limited to, your relationship with us, your use of our Platform, to complete any additional information regarding your profile, or to set up your account. We may store your mobile number and information on our Platform in your profile and may use your mobile number so that we can contact you regarding your use of our app as stated herein.

5.2.

Opt-out. If you wish to opt-out of promotional emails, you may unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself. If you wish to opt-out of other promotional messages, you may manage your communication preferences within your account settings on our Platform or by following any messaging instructions on how to opt-out, however you acknowledge that opting out of receiving any type of promotional message may impact your use of our Platform or related services. You may further opt-out by writing us, emailing us, or calling us at: 30 N Gould St. Ste R Sheridan, WY 82801; team@GapNurse.com; (720) 741-2255; GapNurse.com/support.
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CATEGORY 2.  TERMS APPLICABLE ONLY TO CLINICIANS

6.

6.1.

Clinician Agency. Consistent with Section 2.2, you acknowledge and agree that as a Clinician you are acting as an independent business owner and that no employment, agency, partnership, or joint venture relationship is established between you and GapNurse or you and any Facility advertising available Assignments on the GapNurse platform. You have sole and absolute discretion to choose when, where, how, and with which Facilities, if any, you engage your professional services. You use our Platform and engagement of your professional services of your own free will and choice.

6.2.

Independent Contractor Status. Clinicians utilizing GapNurse do so only as independent business owners acting as contractors, retaining control over and responsibility of their own professional services. By executing this Agreement, Clinician states, acknowledges to be true, and agrees to the following:

1. Clinician operates the Clinician’s own independent business and is providing services in connection with the GapNurse marketplace only as an independent contractor,
2. Clinician is not an employee of GapNurse and that the professional services Clinician may render in connection with any assignment found on or advertised by a Facility on GapNurse, or our Platform do not establish any right to any compensation or benefits that GapNurse grants its employees, including without limitation, to any salary, pension, stock, bonus, profit sharing, insurance of any kind, unemployment benefits or any other right arising from an employment relationship,
3. Clinician is solely responsible for all tax liability associated with payments received from or through GapNurse and GapNurse will not withhold any taxes or other state or federal withholdings from payments to the Clinician. GapNurse shall annually provide an IRS Form 1099-K to qualifying Clinicians in accordance with Federal requirements, for payments made by third parties and processed as a convenience through the GapNurse Platform,
4. GapNurse does not restrict the Clinician’s ability to request or perform services for or through Facilities not utilizing the Platform or other third-party platforms, and Clinician is encouraged to provide services through means other than connecting with Facilities via GapNurse,
5. Clinician has the free and voluntary right to accept or decline requests for its professional services through GapNurse,
6. Clinician is not utilizing the Platform such that it is economically dependent on use of the Platform,
7. GapNurse does not dictate the performance, methods or process the Clinician uses to perform services for any Facility. Further, GapNurse does not have the authority to and does not supervise or control the services that the Clinician provides to any Facility. Clinician maintains the sole right to provide professional services as Clinician deems appropriate and in accordance with state and federal laws and as deemed appropriate by state nursing boards,
8. Clinician will be paid only for the performance of its professional services provided to a Facility an amount freely pre-negotiated between Clinician and Facility and as advertised on the Platform and that GapNurse is not providing the Clinician with wages, salary, overtime or any minimum or regular payment,
9. Clinician is responsible for providing and maintaining all business registrations, licenses, certifications, tools, and equipment required to perform its professional services,
10. Clinician is responsible for all expenses incurred by the Clinician in performing its professional services, including but not limited to transportation, lodging, licensing, and insurance costs, or any other expense Clinician may incur in the process of providing your services to any Facility,
11. Clinician may realize a profit or loss in connection with providing services with Facility with whom it connects on our Platform, and
12. GapNurse cannot confirm any renewal status of your licensure or certification, or hours worked that may be required by federal, state, or local law. Clinician shall track and record any information, documentation, or necessary requirements for maintenance of your own licensure renewal, status, or other requirements as required by the appropriate licensing authority.

6.3.

Payment Terms. For the purposes of this Agreement the published Assignment Pay Rate, is determined by the total duration of the Assignment multiplied by the hourly rate agreed between Clinician and Facility, and may include a Bonus or Travel Allowance as advertised in the Assignment that a Clinician has successfully requested from a Facility. The total amount paid to Clinician shall be 100% of the pre-negotiated Assignment pay rate and paid in relation to services rendered and consistent with this and Sections 7.2 and 7.10 of this Agreement. You acknowledge and agree that the Assignment Pay Rate may be adjusted in certain circumstances, and at the mutual discretion of you and the Facility. You acknowledge and agree that the Assignment Pay Rate may be decoupled from any Service Fees (an amount Facility agrees to pay GapNurse for services, in addition to Assignment Pay rate) paid by the Facility to GapNurse in consideration for your use of GapNurse and in relation the Assignment. The Clinician’s payment amount may vary from Assignment to Assignment and at the discretion of the Facility. You will receive payment in a reasonably timely fashion for your provision of professional services to a Facility following the Facility’s approval of your completed work. In some instances, you may be eligible to receive “Instant Pay.” Eligibility for Instant Pay will depend on (1) Facility payment method, (2) approval from a 3^rd party payment processor used by Platform, (3) you place a debit or credit card on file as your pay-to method, and (4) you selecting “Instant Pay” as your preferred payment method inside of the GapNurse app. Payments from Assignments eligible for Instant Pay shall be deposited to the account associated with your credit or debit card within 1-hour of receiving approval for completed Assignment as described in Section 7.2. When Instant Pay payments are issued, Clinician shall incur a 1% convenience fee that is paid to the 3^rd party payment processor. Notwithstanding Section 2.2, you authorize GapNurse to act as your limited agent for the purpose of collecting payments owed to you by Facility. You acknowledge and understand that to use our Platform, you may be required to authorize payment through a third party. Payments are typically processed in fifteen (15) minute increments using military time and after the Assignment Report has been completed and properly processed. All Assignment Reports, including documentation in Facility electronic medical records systems, when Clinician is provided access to such, may be required to be completed by Clinician as partial fulfillment of services rendered, typically no later than midnight on the same day of the end of the Assignment and at the discretion of Facility, or payment of the Assignment Pay Rate and any other fees owed to you may be forfeited by you. GapNurse will use all reasonable efforts to process payments promptly. However, you acknowledge that payments may be delayed for reasons beyond our control. You acknowledge, disclaim, and waive any liability with respect to (a) the actions and omissions of the Facility, whether resulting from their negligence or willful misconduct or otherwise regarding any payments, or (b) any payments or other amounts owed to you by the Facility. To the extent that you receive any inadvertent payments you acknowledge and agree that monies owed to GapNurse or to Facility may be recouped by GapNurse, including through withholding of future payments.

6.4.

Duty to Notify. If Clinician is unable to work an Assignment, then, as a professional courtesy and in accordance with professional standards, the Clinician must notify the Facility by canceling the Assignment inside of the Mobile app. If cancelation is less than 24-hours prior to the Assignment start time, the Clinician is encouraged to notify Facility by telephone at number provided in Assignment details on the GapNurse mobile app. Notice of less than four (4) hours shall constitute a “No-Call/No-Show” unless proof of a valid reason is provided to Facility. Any No-Call/No-Show or failure to adhere to GapNurse’s Duty to Notify policies by canceling a Assignment late or failure to show up for an accepted Assignment may result in the suspension or removal or your access to GapNurse.

6.5.

Background Checks. As a Clinician, you understand that we may suspend or remove your access to our Platform, if you do not successfully complete industry standard and/or legally required identity verification and background check screening processes, if we are unable to verify your identity, or if your background check reveals other disqualifying reasons. Completion of the background check screening process includes but is not limited to, consenting to these applicable Terms of Service, and providing relevant Taxpayer information inside of the mobile app, completing your personal profile in the mobile app, participating in an online interview, submitting fingerprints as required, and following through with the necessary process to finalize and complete any identity verification or background check. Clinician may incur a $25 background check fee that is surrendered following the completion of Clinician’s first Assignment. You agree to allow communication to you through emails, calls, text, inside of the mobile app, or communications through partner vendors or our third-party background check providers(s) or relevant government agencies. You acknowledge that our use of your criminal history and other background information, including but not limited to your inclusion on exclusion lists or in abuse registries is a permissible use under the Fair Credit Reporting Act (FCRA) (15 U.S.C. sec 1681), the Gramm-Leach-Bliley Act of 1999 (Financial Modernization Act of 1999) (15U.S.C. 6801 to 6809) (“GLBA”) or any related state law or regulation

6.6.

Sharing Background Check Information. To the fullest extent allowable under law, you authorize GapNurse, or any applicable third-party vendor contracted by GapNurse to conduct, research, share, disclose, or otherwise make available to Facilities the following background information or documentation, including but not limited to:

1. Office of Inspector General (OIG) List of Excluded Entities,
2. Your federal, state, and county criminal history,
3. Your inclusion on any sex offender or protective services registry list(s),
4. The results of any applicable state registry or database check,
5. Your license, certification, or registration status and expiration date,
6. Proof of TB testing, waiver and/or any required Immunizations including COVID-19 and Influenza,
7. Results of any drug test,
8. Any other credential, documentation, professional education or certifications, registrations, or the like that you may upload,
9. Any past disciplinary actions against you as reported by relevant agencies and state associations, if any, and
10. Proof of your education or training.

6.7.

Accuracy of Information. You, the Clinician, bear the sole and absolute responsibility to review all information that you provide to GapNurse and its third-party background check providers or that is presented on your profile by you or GapNurse. You shall indemnify and hold GapNurse harmless for any error, omission, failure to update, or other discrepancy that may exist now or in the future, known or unknown, about any information or documentation that you provide to GapNurse, upload into the GapNurse app, or provide to third-party vendors as part of the background check screening process. You agree to pay for all reasonably necessary background check screenings, whether directly or through reimbursement withheld from payment to you.

6.8.

Tax Withholding, Insurance, and Benefits. As a Clinician, you understand and acknowledge that it is your sole responsibility for withholding, accruing, and paying all income taxes, withholding taxes, social security, or other taxes or amounts required by law relating to any payments you may receive by virtue of using our Platform or performing professional services for a Facility. You acknowledge and consent that GapNurse will report all payments made to you by providing you with an IRS Form 1099-K tax for each relevant tax year. As a Clinician you agree and acknowledge that you shall carry occupational safety and medical malpractice insurance when requesting Assignments on GapNurse, as well as any insurance that may be required by law. You acknowledge that you will complete and submit an IRS W-9 form to GapNurse, inside of the mobile app, prior to receiving any payments for Assignments.

6.9.

Insurance. You shall maintain individual insurance policies for professional liability malpractice insurance, and if required by law and your company entity type, a worker’s compensation insurance policy to request Assignments. You shall provide documentation of these policies upon our written request.

6.10.

Mandatory Reporting. Each state may have mandatory reporting requirements that require us to report allegations of abuse or other unprofessional conduct made against you. You authorize us to report such conduct involving you to the appropriate authorities, whether reporting is required or not. Likewise, it may be your responsibility to report witnessed abuses or unprofessional conducts while working Assignments at any Facility, and you hereby consent to doing so as required by law.

6.11.

Department or Unit. If a Facility requests that a Clinician provide professional services to another department or unit than that which the Facility notated in their advertising, Clinician understands that they are working all Assignments at-will and are free to accept or refuse the request. When considering such a request, Clinician shall use their best professional judgment to ensure their safety and the safety of others. GapNurse does not require Clinicians to accept or refuse any such request. In determining to accept or refuse any such request, Clinician acknowledges and agrees that Clinician will follow any standard or requirement mandated by the relevant Nurse Practice Act, or similar law, including but not limited to, informing the Facility of any professional limitations.

6.12.

Clinician’s Representations and Warranties. In addition to the other covenants, obligations, and warranties as stated herein, by providing professional services as a Clinician, you represent, warrant, and promise that:

1. You possess an active healthcare license, certification, or registration that is in good standing and free of disciplinary action or restriction that would prevent you from providing the relevant healthcare services and you will only request Assignments for which you possess the certification, license, or registration required for that Assignment,
2. You are authorized to practice within your scope of licensure, certification, or registration and you will perform healthcare services for Facilities only within the scope your applicable licensure, certification, or registration according to industry practice standards,
3. You will perform your professional healthcare services consistent with all regulatory or legal requirements,
4. You warrant that you have access to reliable transportation, when required, to arrive at Assignment location to perform Clinician services advertised by Facility on Platform,
5. You have no felony or disqualifying convictions or pending felony or disqualifying charges in any state or federal court,
6. You have never been found guilty of abuse or neglect by a competent court, government agency or regulatory body,
7. You will not engage in any behavior, while performing healthcare services at a Facility, or act or fail to act, that may harm, or threaten to harm, or place at risk the safety of patients, Facility Employees, or others,
8. You agree to report all evidence of abuse or neglect, you personally witness, in accordance with Facility Policy and to any Government authority as required by law,
9. You shall refrain from the use of profanity, abusive language or other inflammatory language or behavior directed towards any patient, other Clinician, Facility, or representative of GapNurse,
10. All information and documentation you provide to us is accurate, complete, genuine, verifiable, and is not fabricated or manipulated in any way. You warrant that any document you upload into your profile is an original, legitimate, and verifiable document and you attest that the document is exactly what it appears to represent,
11. You warrant that any use of GapNurse does not violate any other agreements or restrictions that may be applicable to you.

6.13.

Safety. You acknowledge that if you experience any unexpected incidents, errors, occupational safety hazards, events, or issues that involve a Facility or patient safety related to your provision of professional healthcare services, you may contact GapNurse, the Facility administrator, local authorities, nursing board, or applicable regulatory body to report any such issues.
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CATEGORY 3. TERMS APPLICABLE ONLY TO FACILITIES

7.  

7.1.

Separate Agreements. As a Facility, you and GapNurse may from time-to-time enter into separate agreements providing additional terms or augmenting the terms and obligations outlined in this Agreement. Any such agreement is in addition to this Agreement and unless otherwise stated therein shall control when there is a conflict with this Agreement. This Agreement shall control and continue to be in full force and effect regarding any nonconflicting terms.

7.2.

Verification of Assignment and History of Assignments. For all completed Clinician Assignments scheduled via GapNurse, the Company agrees to document: the Assignment Number, Clinician Name, Total Assignment Costs, Start Time, End Time, and the Name of the Facility Representative who approves the Assignment. The start time, end time, and total hours worked shall be provided by the Facility and Clinicians in the History of Assignments found inside of the Facility Manager Portal, and the Facility Manager shall be notified of completed Assignments inside of the Facility Manager Portal and by email, following Clinician’s checking out from Assignment on the mobile app. In the event that an Assignment is neither reviewed nor approved by Facility inside of the Facility Manager Portal within forty-eight (48) hours following the Assignment completion, the Facility shall accept auto-verified Assignment Reports. Any such auto-verified Assignment Report shall be deemed accepted by the Facility as true and correct.

7.3.

Clinician Credentials. The Facility shall bear sole and exclusive responsibility to review and approve each Clinician’s credentials, including professional licensure, certification, or registration status, professional qualification, background check screening results, and all items that have been uploaded by the Clinician or GapNurse prior to engaging the services of any Clinician. GapNurse requires proof of licensure, certification, or registration prior to Clinician’s requesting an Assignment. Notwithstanding this, Facility acknowledges and agrees that it is the sole and exclusive responsibility of a Facility to ensure that a Clinician meets the Facility’s standards, expectations, clinical competence, and legal requirements such that the Clinician may engage with the Facility to perform any professional healthcare services. The Facility shall indefinitely indemnify and hold GapNurse harmless for any claim, cause of action, damages, or costs arising from the Facility’s decision to partner with a particular Clinician. Any Clinician information, including but not limited to background check or registry search results, education, vaccination status, TB test results, drug test results, or proof of additional qualifications viewable by Facility on GapNurse is provided only for the Facility’s own use in its internal decision, approval, and review of any Clinician. Unless required by law, the Facility shall not disseminate or disclose any such information we or the Clinician may provide or that it may access via GapNurse to third parties or employees who do not require such information or are not authorized to view such information under the law.

7.4.

Clinician’s Profile. GapNurse may make available on a Clinician’s profile the information described in Section 6.5.

7.5.

Maintaining a Safe Environment and Engagement with Clinician. As a Facility, you are solely responsible for maintaining all necessary records, instructions, forms, manuals and other written policies and procedures necessary for efficient and safe performances of the Clinician’s professional health care services. At your discretion, you may provide these materials to Clinicians in advance of them beginning any Assignment via the Facility Manager’s Portal and as presented to Clinician in the mobile app. You acknowledge and represent that: (a) your Facility is compliant with any and all applicable federal, state, or local ordinances, codes, or laws in relation to the Facility’s building, services, and employees; (b) you will maintain your Facility’s environment and operation in a safe manner consistent with industry standards and/or legal requirements.  It  is  solely your responsibility to provide any necessary orientation to the Clinicians from whom you receive services; (c) we do not control or have any oversight or control over the Clinician, thus, any risk of loss related to the Clinician’s professional services provided to Facility in any way is accepted by you by entering into this Agreement; (d) it is your responsibility to ensure that a Clinician meets your requirements; and (e) shall ensure that a Clinician provides its professional services in the appropriate setting and in conjunction with all laws, and any specific policies or procedures that you maintain. By accepting the Clinician’s request, you accept all responsibility for the professional healthcare services that the Clinician renders to the Facility. You acknowledge that if you experience any unexpected incidents, errors, occupational safety hazards, events, or issues that involve a Clinician, patient safety, or other issues, you may contact GapNurse, relevant government agencies and authorities, nursing board, or regulatory body for reporting purpose.

7.6.

Clinician’s Independent Contractor Status. You acknowledge and agree that Clinicians are independent business owners acting as independent contractors as described herein and that Clinicians are not employees of GapNurse. Your engagement with a Clinician for the purpose of providing professional healthcare services shall be deemed as your own voluntary acceptance of the Clinician’s independent performance of healthcare services on your behalf.

7.7.

Right to Hire. At any time, Facility may elect to offer employment to any Clinician, without restriction. GapNurse shall not assess a “finder’s fee” or “placement fee” to Facility when Facility enters into an employment agreement with Clinician. At least monthly, Facility shall notify GapNurse of Clinicians it elects to hire who have completed Assignments on the Platform, in order that GapNurse may remove new hire from the Marketplace.

7.8

Outplacement and G-Lock. The Platform accommodates outplacement services for Facilities. When Facility elects to terminate the employment of a Clinician who is qualified to request Assignments on the Platform, Facility agrees to notify GapNurse who may promote the Platform to Clinician. The Platform further accommodates Facilities to advertise available Assignments to its own employees before automatically broadcasting available Assignments to Clinician Marketplace. GapNurse utilizes a proprietary technology called G-Lock to ensure that Facility employees who are notified of available Assignments shall not be included in the Clinician Marketplace for Assignments located outside of Facility.

7.9.

Venue Change Request. If, during the duration of any Assignment, you request a Clinician to provide professional healthcare services to a different department or unit than that specified in your Assignment advertising, you acknowledge that the Clinician is free to accept or refuse the request. You further warrant that you will independently determine whether a Clinician is competent and qualified to fulfill the requirements of the relevant scope of practice. You shall also assume all risks regarding such requests. GapNurse does not require a Clinician to accept or refuse any such requests. If a Clinician chooses to refuse such a request, GapNurse will not take any action against the Clinician. You also acknowledge and agree that you will follow any standard or requirement mandated by the Nurse Practice Act, or similar law in your location to ensure the safety of healthcare workers and the safety of patients.

7.10.

Charges, Subscriptions, Service Fees, and Payments. As a user of GapNurse you understand that your usage of the Platform and related services may result in “Charges” to you. Facilities shall incur a monthly Subscription Fee for use of the Platform. In addition, Facilities agree to pay for Clinician services, described herein as the Assignment Pay Rate and as described in Section 6.3., and the Service Fee as described in Section 6.3, plus any cancellation fees for a particular Assignment advertised by Facility, and may include additional fees, including late fees. A suggested Assignment Pay Rate shall be published by Facility in Assignment details, but remains negotiable between Facility and Clinician. In addition, each Assignment shall include a Service Fee for use of the Platform. GapNurse reserves the right to determine and modify the “suggested” Assignment Pay Rate and Service Fee based on market conditions. Facility is responsible for reviewing and agreeing to the Total Assignment Cost, and itemized cost breakdowns for each Assignment advertised on the Platform and Facility is responsible for all Charges incurred under its user account. A Credit Card or Checking Account Number and Routing Number are required to activate Facility account. Facility payments may be made using Credit Cards, Automated Clearing House (ACH) Payments or by payment terms. All Payment Terms are subject to qualification and approval and revolving credit limits shall be established for facility. Credit limits are subject to qualification and Facility shall be notified of limit prior to account activation. Revolving credit allowances shall be reviewed, upon request. Payments by credit card or ACH shall incur a 12% Service Fee and payments made by invoicing terms shall incur a 25% Service Fee. Credit Card and ACH Payments shall receive PBJ-compliant sales receipts and payments by Terms shall receive PBJ-compliant invoices payable in thirty (30) days.  Any errors, omissions, or corrections contained in the sales receipt or invoice or to the Charges must be reported in writing to GapNurse within fourteen (14) business days of the Assignment’s completion. After fourteen business days, all Charges shall be deemed correct, accurate, and without objection. All Charges are facilitated through a third-party payment processor. GapNurse may replace its third-party processor without notice. Cash payments are strictly prohibited. Your payment of Charges to GapNurse satisfies your payment obligations for your use of GapNurse and associated services. GapNurse may group multiple Charges into a single aggregate sales receipt, invoice, or transaction, based on the nature of the Charges and/or the date(s) they were incurred.

7.11.

Late Fees and Default in Payment. If any portion of your invoice for Charges is not paid by the due date a late fee will be assessed and placed on your account. The late fee shall be 4.25% per month of the unpaid balance, not to exceed 18% per calendar year. Facility shall reimburse GapNurse for all our expenses incurred to recover such monies, including attorneys’ fees, collection costs, collection fees, court costs, and service costs, regardless of if the case is filed in a court competent jurisdiction, is settled prior thereto, or is mediated or arbitrated. If Facility fails to pay on time and GapNurse refers Facility’s account(s) to a third-party collection company, a collection fee will be assessed and will be due at the time of the referral to the third party. The collection fee will be calculated as the lesser of the actual amount required to pay a third-party debt collection agency, or 33% of the total unpaid balance (including interest) at the time it is referred to a third-party collection company. Daily interest shall continue to accrue indefinitely until the account is paid in full. GapNurse has the discretion to assess and charge you any late fee. In the event that a late fee is not assessed, it shall not be considered a waiver of this clause or to assess a late fee retroactively or in the future.

7.12.

Cancellation Policy for Facilities. You agree that GapNurse reserves the right to implement, revise, and enforce policies to protect the wellbeing of its services and communities, including but not limited to imposing fees for Facility’s untimely Assignment cancellations at its discretion. This right includes but is not limited to assessment of the following Charges in relation to Assignment cancellations: (a) if the Assignment is canceled within four (4) hours prior to the Assignment start time, the Facility will be billed a cancellation fee of 50% of the total Assignment Cost be remitted to the Clinician less the Service Fee; and (b) if the Assignment is canceled in two (2) or fewer hours prior to the Assignment start time the Facility shall be billed 100% of the Assignment Cost remitted to Clinician less the Service Fee. The cancellation policy may be updated at the discretion of GapNurse.

7.13.

Insurance. You shall maintain commercially reasonable insurance policies for general liability, property damage, and professional malpractice insurance. You shall provide documentation of these policies upon our written request.

7.14.

Anti-Discrimination. You agree not to discriminate on the basis of race, color, sex, gender, age, religion, national origin or disability or any other status protected by federal, state or local laws.

7.15.

Facility Disclaimer. In addition to Section 9, we expressly disclaim any liability or warranty with respect to (a) the actions and omissions of Clinicians, whether resulting from their negligence or willful misconduct or otherwise, or (b) their fitness to provide you with the desired professional healthcare services.

 

CATEGORY 4. ADDITIONAL TERMS AND CONDITIONS

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8. TERM AND TERMINATION OF THIS AGREEMENT

This Agreement is effective on the date you sign up for the Platform. This Agreement shall continue until terminated by either Party. Upon any material breach of the Agreement, the non-breaching Party may immediately terminate the Agreement. You and GapNurse may also terminate the Agreement by mutual agreement, and either Party may terminate the Agreement upon fifteen (15) days’ written notice. GapNurse shall have no liability to Facility as a result of any termination of this Agreement by GapNurse. Upon termination or cessation of your use of our Platform, GapNurse will stop providing you access to our Platform, and you will stop all use of the Platform. Upon termination, you authorize GapNurse to automatically charge your credit card all unpaid fees owed to GapNurse without prior notice to you, if applicable. You shall also be responsible for any expenses of collection, including costs, collection fees, disbursements, and reasonable attorney fees GapNurse may incur to collect unpaid amounts as further stated herein.
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9.  LIMITATION OF LIABILITY AND ASSUMPTION OF RISK

YOU ACKNOWLEDGE AND CONSENT THAT WE (alchem8 USA, LLC d/b/a GapNurse)., ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, AGENT, AND PROVIDERS) WILL NOT BE RESPONSIBLE OR LIABLE FOR (a) ANY DAMAGES TO OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS THE RESULT OF YOUR ACCESS TO OUR PLATFORM, YOUR DOWNLOADING OF ANY CONTENT FROM OUR PLATFORM, OR YOUR USE OF OUR PLATFORM,(b) ANY INJURY, DEATH, LOSS, CLAIM, ACT OF GOD, ACCIDENT, DELAY, OR ANY DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH: (i) ANY USE OF OUR PLATFORM, OR OUR CONTENT; (ii) ANY ENVIRONMENTAL, UNSAFE, OR HAZARDOUS CONDITION (iii) THE PERFORMANCE OR NON-PERFORMANCE BY US; (iv) THE PERFORMANCE OR ACCEPTANCE OF ANY PROFESSIONAL SERVICES PROVIDED TO YOU AS A FACILITY OR PROVIDED BY YOU AS A CLINICIAN; OR (v) ANY CLAIM THAT ARISES DUE TO THE FAULT OF A FACILITY, CLINICIAN, OR THIRD PARTY, OR (c) LOSSES, DAMAGES, OR OTHER LIABILITY EXCEEDING (IN THE AGGREGATE) THE SERVICE FEE PAID BY YOU (IF A FACILITY) TO GAPNURSE OR CLINICIAN FEE PAID TO YOU (IF A CLINICIAN) PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. YOU ARE AWARE AND UNDERSTAND THAT ACCEPTING/PERFORMING ANY ASSIGNMENT FOR PROFESSIONAL HEALTHCARE SERVICES OR ACCEPTING ANY CLINICIAN ON TO YOUR PREMISES FOR THE PERFORMANCE OF PROFESSIONAL HEALTHCARE SERVICES, MAY HAVE FORESEEN OR UNFORESEEN CONSEQUENCES, KNOWN OR UNKNOWN, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY TO YOU OR OTHERS, EXPOSURE TO ILLNESS OR DISEASE (MRSA, INFLUENZA, COVID-19, ETC.), DAMAGE TO PROPERTY, OR IN RARE INSTANCES, EVEN DEATH. YOU VOLUNTARILY ACCEPT THESE RISKS WITH KNOWLEDGE OF THE DANGER INVOLVED. YOU FURTHER ACKNOWLEDGE AND ACCEPT ANY AND ALL RISKS OF INJURY, DAMAGE, AND/OR DEATH, IN ANY WAY HOWEVER DERIVED AND UNDER ANY CIRCUMSTANCE. YOU HEREBY WAIVE AND RELEASE ANY AND ALL CLAIMS, HOWEVER DERIVED AND HOWEVER LABELED, IN ANY WAY AGAINST GAPNURSE FOR ANY CLAIM OR DAMAGE AS STATED HEREIN.
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10.  INDEMNIFICATION

Clinician and Facility shall indemnify, defend, and hold GapNurse and its affiliates and their respective successors and assigns, and each of their respective officers, directors, partners, managers, employees, stockholders, members, contractors, attorneys, accountants, representatives, and agents in respect of, harmless against any and all claims, demands, causes of action, actions, proceedings, judgments, debts, obligations, liabilities, damages, fines, fees, penalties, interest obligations, taxes, deficiencies, losses, costs and expenses (including, without limitation, amounts paid to enforce the provisions of this Section and amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses) (collectively, “Damages”) incurred or suffered by GapNurse arising out of, resulting from, relating to, or constituting (a) any fraud, misrepresentation, or breach of any provision of this Agreement (including, but not limited to, any representations and warranties as stated herein) by the Clinician or Facility; (b) any negligent, reckless, intentionally wrongful act, or willful misconduct by Clinician or Facility; (c) any failure of Clinician or Facility to perform its duties or obligations hereunder or in accordance with all applicable laws, rules, and regulations; or (d) your use of our Platform or services.
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11.  RESTRICTED ACTIVITIES AND UNAUTHORIZED USE OF OUR PLATFORM

You shall not under any circumstance for yourself or for any third party, authorize, permit, collude, associate, or invite to: (a) allow anyone other than registered users to access and use our Platform; (b) use any robot, spider, scraper or other automated and/or technical means or interface not provided through authorized channels by us to access our Platform or extract data, scrape or gather or use information; (c) impersonate or misrepresent yourself, your credentials, or your affiliation with any person or entity; (d) reverse engineer any licensed software, application, or any other aspect of our Platform or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of our Platform; or take any action which might impose a significant burden (as determined by us) on our Platform’s infrastructure, systems, or otherwise interfere with the ordinary operation of our Platform; (e) remove or modify any proprietary marking or restrictive legends placed on the Platform; (f) frame any part of our Platform, or link to our Platform, or otherwise represent that you have a relationship to us or that we have endorsed you or your content for any purpose except as expressly permitted in writing by us to you; or (g) use the Platform in violation of any applicable Law, this Agreement, or for any purpose not specifically permitted in these terms. Further, you agree not to use our Platform for any unlawful purpose, or any purpose prohibited under this Agreement. You shall not use our Platform in any way that could damage our Platform, the business of the Company, our reputation, or our Intellectual Property or Confidential Information. You shall not to use our Platform in any way by attempting, directly, or indirectly doing any of the following, including but not limited to: (i) harass, abuse, threaten others or otherwise violate any person’s legal rights including ours (ii) to violate any intellectual property rights of the Company or any third party; (iii) to upload or otherwise disseminate any computer viruses or other software that may damage the property of another;(iv) to perpetrate any fraud; (v) to engage in or create any unlawful gambling, sweepstakes, or pyramid scheme; (vi) to publish or distribute any obscene or defamatory material; (vii) to publish or distribute any material that incites violence, hate, or discrimination towards any group; or (viii) to unlawfully gather information about others.
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12.  DISCLAIMER OF WARRANTIES

SERVICE IS PROVIDED AS-IS. GAPNURSE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. GAPNURSE MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY  OBLIGATION, THAT: (a) OUR PLATFORM WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (b) THE CONTENT WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE, ACCURATE OR APPLICABLE TO YOUR CIRCUMSTANCES; (c) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF OUR PLATFORM OR ANY SERVICES OFFERED THROUGH OUR PLATFORM IS ACCURATE AND COMPLETE; OR (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH OUR PLATFORM WILL MEET YOUR EXPECTATIONS. YOUR USE OF OUR PLATFORM OR ANY SERVICE PROVIDED BY GAPNURSE SHALL BE “AS IS” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. YOU ACKNOWLEDGE THAT GAPNURSE SHALL HAVE NO LIABILITY FOR ANY INFORMATION, CONTENT, OR MATERIALS PUBLISHED, DISPLAYED, OR OTHERWISE TRANSACTED ON OUR PLATFORM. WE DO NOT WARRANT THAT YOUR USE OF GAPNURSE WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS IN GAPNURSE WILL BE CORRECTED, OR THAT GAPNURSE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM ANY LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY OF GAPNURSE.
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13.  FORCE MAJEURE

No Party will be liable for any failure or delay in its performance of an obligation under this Agreement that is due or the result of to any of the following causes but only to the extent that it is beyond its reasonable control of the affected Party including but not limited to: acts of God, accidents, riots, wars, terrorist acts, fires, floods, embargos, insurrections, strikes, epidemics, pandemics (including Covid-19), quarantines, civil commotions, natural catastrophes, governmental acts or omissions, or changes in laws or regulations. Force Majeure shall not include financial distress, the inability of a Party to make or avoid a profit or loss, changes or disparities in market prices or conditions, or a Party’s financial inability to fulfil its obligations hereunder. Further, the affected Party shall use any reasonable effort to avoid or remove such causes if reasonably available.
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14.  BINDING ARBITRATION AND CLASS ACTION WAIVER

14.1.

PLEASE READ THIS SECTION 14 CAREFULLY—IT AFFECTS THE PARTIES’ LEGAL RIGHTS AND GOVERNS HOW CLINICIAN, FACILITY, AND GAPNURSE CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION 14 WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND GAPNURSE TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, GROUP, OR REPRESENTATIVE ACTION IN COURT.

14.2.

THIS MUTUAL AGREEMENT TO ARBITRATE (“ARBITRATION AGREEMENT”) IS BETWEEN CLINICIAN, FACILITY, (ALSO REFERRED TO IN THIS ARBITRATION AGREEMENT AS “YOU”, “YOUR”, AND “I”) AND GAPNURSE. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) APPLIES TO THIS ARBITRATION AGREEMENT, WHICH EVIDENCES COMMERCE. THE MUTUAL OBLIGATIONS BY GAPNURSE, FACILITY, AND CLINICIAN TO ARBITRATE DISPUTES PROVIDE ADEQUATE CONSIDERATION FOR THIS AGREEMENT. ALL DISPUTES COVERED BY THIS AGREEMENT WILL BE DECIDED BY A SINGLE ARBITRATOR (THE “ARBITRATOR”) THROUGH FINAL AND BINDING ARBITRATION AND NOT BY WAY OF COURT OR JURY TRIAL.

14.3.

Claims Covered by the Arbitration Agreement. This Arbitration Agreement is intended to be as broad as legally permissible, and, except as it otherwise provides, applies to all claims or controversies, past, present, or future, that otherwise would be resolved in a court of law or before a forum other than arbitration. Except as it otherwise provides, this Arbitration Agreement applies to any dispute that the GapNurse may have against you or that you may have against GapNurse, and/or any of its or their, past, present, or future: (i) officers, directors, shareholders, employees, members, or agents; (ii) parents, subsidiaries, affiliates; (iii) benefit plans or the plans’ sponsors, fiduciaries, administrators, affiliates or agents; and (iv) successors or assigns. Each and all of which the individuals and entities listed in (i) – (iv) above may enforce this Agreement as a direct or third-party beneficiary.

14.4.

Except as it otherwise provides, this Arbitration Agreement applies, without limitation, to claims based upon or related to discrimination, harassment, retaliation, defamation (including post-engagement defamation or retaliation), whistleblowing, breach of a contract or covenant, stock disputes, fraud, negligence, privacy, seating, breach of fiduciary duty, trade secrets, unfair competition, wages, minimum wage and overtime or other compensation, including equity compensation, or any monies claimed to be owed, meal breaks and rest periods, termination, tort claims, common law claims, equitable claims, and claims arising under the Defend Trade Secrets Act, Fair Credit Reporting Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, 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 any claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance.

14.5.

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, scope, applicability, enforceability, or waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and it does not apply to the Class Action Waiver or PAGA Individual Action Requirement. Notwithstanding any other clause or language in this Arbitration Agreement and/or any rules or procedures that might otherwise apply because of this Arbitration Agreement (including without limitation the AAA Rules discussed below) or any amendments and/or modifications to those rules, any disputes concerning the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and/or any claim that all or any part of the Class Action Waiver or PAGA Individual Action Requirement is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an arbitrator.

14.6.

Limitations on how this Arbitration Agreement Applies and Claims Not Covered by this Arbitration Agreement. The following claims are not covered under this Arbitration Agreement: (i) claims for workers’ compensation benefits, state disability insurance and unemployment insurance benefits; however, it applies to discrimination or retaliation claims based upon seeking such benefits; however, this Arbitration Agreement does apply to any claims for breach of fiduciary duty, or for penalties, alleging that any of GapNurse’s benefit plans violate the requirements of ERISA (as defined below), claims arising under sections 601-607 of ERISA (relating to continuation coverage under group health plans), or alleging any other violation of ERISA (including but not limited to claims under section 510 of ERISA), even if such claim is combined with a claim for benefits; (ii) claims for benefits under employee benefit plans covered by the Employee Retirement Income Security Act of 1974 (“ERISA”); (iii) disputes that an applicable federal statute expressly states cannot be arbitrated or subject to a pre-dispute arbitration agreement; (iv) disputes that may not be subject to pre-dispute arbitration agreement under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (at the election of Clinician) (v) claims of GapNurse or Facility related to Charges or other amounts charged to Facility or owed to GapNurse. To the maximum extent allowed by law, any claims that are not covered under this Arbitration Agreement will be exclusively litigated in the federal or state courts located in Sheridan, Wyoming and the parties agree that they submit to the exclusive jurisdiction of those courts. If any claim(s) not covered under this Arbitration Agreement above are combined with claims that are covered under this Arbitration Agreement, to the maximum extent permitted under applicable law, the covered claims will be arbitrated and continue to be covered under this Arbitration Agreement. Nothing in this Arbitration Agreement prevents Clinician from making a report to or filing a claim or charge with a governmental agency, including without limitation, the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities and Exchange Commission, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement agencies, and nothing in this Arbitration Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement. Nothing in this Arbitration Agreement prevents or excuses a Party from exhausting administrative remedies by filing any charges or complaints required by any governmental agency (including without limitation the Equal Employment Opportunity Commission and/or similar state or local agency) before bringing a claim in arbitration. GapNurse will not retaliate against you for filing a claim with an administrative agency or for exercising rights under the National Labor Relations Act. This Arbitration Agreement also does not prevent or prohibit you in any way from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse. Either Party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy but only upon the ground that the award to which that Party may be entitled may be rendered ineffectual without such relief. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.

14.7.

Arbitration Procedures. You and GapNurse will mutually select the neutral Arbitrator, who must make disclosures to both Parties. If the Parties cannot mutually agree to an Arbitrator, the arbitration will be administered by the American Arbitration Association (“AAA”), and except as provided in this Agreement, will be under the then current Commercial Arbitration Rules of the AAA (“AAA Rules”) (the AAA Rules are available via the internet at www.adr.org/commercial or by using a service such as Google to search for “AAA Commercial Arbitration Rules”); provided, however, if there is a conflict between the AAA Rules and this Arbitration Agreement, this Arbitration Agreement shall govern. Unless the Parties jointly agree otherwise, the Arbitrator must be an attorney licensed to practice law in the state in which the arbitration is convened, or a retired judge from any jurisdiction. In the event, however, either Party asserts a claim or claims that include a covered ERISA claim, the Parties agree the Arbitrator must be a retired federal judge from any jurisdiction. Unless the Parties jointly agree otherwise, the arbitration will take place in or near the city and in the state where Clinician performs or last performed services for a Facility.

14.8.

If the Parties cannot mutually agree to an Arbitrator, the Arbitrator will be selected as follows: The AAA will give each Party a list of 11 arbitrators (who are subject to the qualifications in the preceding paragraph) drawn from its panel of arbitrators. Each Party will have ten (10) calendar days to strike all names on the list it deems unacceptable. If only one common name remains on the lists of all Parties, that individual will be designated as the Arbitrator. If more than one common name remains on the lists of all Parties, the Parties will strike names alternately from the list of common names by telephone conference administered by AAA, with the Party to strike first to be determined by a coin toss conducted by AAA, until only one remains. If no common name remains on the lists of all Parties, the AAA will furnish an additional list of 11 arbitrators from which the Parties will strike alternately by telephone conference administered by AAA, with the Party to strike first to be determined by a coin toss conducted by AAA, until only one name remains. That person will be designated as the Arbitrator. If the individual selected cannot serve, AAA will issue another list of 11 arbitrators and repeat the alternate striking selection process. If the AAA will not administer the arbitration or is unwilling to administer the arbitration consistent with this Arbitration Agreement, either Party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator, who shall act under this Arbitration Agreement with the same force and effect as if he or she had been specifically named herein. The Arbitrator may award any remedy to which a Party is entitled under applicable law, but remedies will be limited to those that would be available to a Party in their individual capacity for the claims presented to the Arbitrator, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. Unless otherwise agreed in writing by the Parties, the Arbitrator shall apply the substantive federal, state, or local law applicable to the claims asserted. The Federal Rules of Evidence shall apply to the proceeding. Either Party may file dispositive motions, including without limitation a motion to dismiss and/or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure. The Arbitrator will issue an award by written opinion within thirty (30) days from the date the arbitration hearing concludes, ­or the post-hearing briefs (if requested) are received, whichever is later. The opinion will be in writing and include the factual and legal basis for the award. The Parties agree that any arbitration award shall have no preclusive effect as to issues or claims in any other dispute or arbitration proceeding brought by any other Party. Judgment on the award issued by the Arbitrator may be entered in any court of competent jurisdiction. Either Party may seek correction, confirmation or vacatur in a court of competent jurisdiction as provided by the Federal Arbitration Act.

14.9.

Class and Collective Action Waivers. You and GapNurse agree to bring any claim on an individual basis only. Accordingly, YOU AND GAPNURSE WAIVE ANY RIGHT FOR ANY DISPUTE TO BE BROUGHT, HEARD, DECIDED, OR ARBITRATED AS A CLASS AND/OR COLLECTIVE ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (“Class Action Waiver”). Additionally, no arbitration proceeding under this Arbitration Agreement may be consolidated or joined in any way with an arbitration proceeding involving claims by different employees or contractors of GapNurse. If there is a final judicial determination that the Class Action Waiver is unenforceable and that a class or collective action may proceed notwithstanding the existence of this Arbitration Agreement, the Arbitrator is nevertheless without authority to preside over a class or collective action and, in that event, any class or collective action must be brought in a court of competent jurisdiction—not in arbitration.

14.10.

PAGA Individual Action Requirement. You and GapNurse agree that you will bring any claim under the Private Attorneys General Act (“PAGA”) on an individual basis only. YOU AND GAPNURSE WAIVE ANY RIGHT FOR ANY DISPUTE BROUGHT PURSUANT TO PAGA TO BE BROUGHT, HEARD, DECIDED, OR ARBITRATED AS A REPRESENTATIVE ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (“PAGA INDIVIDUAL ACTION REQUIREMENT”). Additionally, no arbitration proceeding under this Arbitration Agreement may be consolidated or joined in any way with an arbitration proceeding involving claims by different employees or contractors of GapNurse. If there is a final judicial determination that the PAGA INDIVIDUAL ACTION REQUIREMENT is unenforceable and that a representative action may proceed notwithstanding the existence of this Arbitration Agreement, the Arbitrator is nevertheless without authority to preside over a representative action and, in that event, any representative action must be brought in a court of competent jurisdiction—not in arbitration.

14.11.

Notice of Arbitration Demand, Cooling Off Period, and Informal Settlement Conference. You and GapNurse agree that the Party initiating the claim must make a written demand for arbitration of the claim to the other Party no later than the expiration of the statute of limitations (deadline for filing) that the law prescribes for the claim. The demand for arbitration shall identify the claims asserted, the facts upon which such claims are based, and the relief or remedy sought. The demand for arbitration must be signed by the Party making the demand for arbitration (Clinician personally or authorized representative of Facility or GapNurse, as applicable). Written demand for arbitration to GapNurse must be sent to the attention of Legal Department, currently at 30 N Gould St. Ste R Sheridan, WY 82801. You will be given notice of any demand for arbitration by GapNurse at the last address contained in GapNurse’s records. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration and apply the statute of limitations that would have applied if the claim(s) had been brought in court. The Parties mutually agree that after a Party initiates the claim by making a written demand for arbitration to the other, unless otherwise mutually agreed to in writing by both Parties, there will be a thirty (30) day “Cooling Off Period”. During the Cooling Off Period, the Parties may attempt in good faith to resolve the claim. The Parties may also mutually agree to extend the Cooling Off Period. During the Cooling Off Period, either Party may request an informal meeting to discuss in good faith a potential informal resolution of the dispute, without the need to go forward in an arbitration (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and a GapNurse representative must both personally participate; any counsel representing you or GapNurse also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both Parties agree in writing. The intent of the Cooling Off Period and Informal Settlement Conference is to allow you and GapNurse a meaningful opportunity to resolve disputes internally. At the end of the Cooling Off Period or if an Informal Settlement Conference is timely requested, 30 days after completion of the Informal Settlement Conference, and unless the Parties have resolved the claim, the Parties will commence the Arbitrator selection process pursuant to the Arbitration Procedures Section above. If any aspect of the requirements in this paragraph has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, an arbitrator or AAA may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without compliance with the Cooling Off Period and, if requested by either Party, the Informal Settlement Conference. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a Party to seek damages for non-compliance with the procedures in this paragraph.

14.12.

Discovery and Subpoenas. Each Party may take the deposition of 2 individual fact witnesses and any expert witness designated by another Party. Each Party also may propound 25 requests for production of documents and 5 interrogatory requests to the other Party, and, each Party shall have the right to subpoena witnesses and documents for discovery or the arbitration hearing, including testimony and documents relevant to the case from third parties, in accordance with any applicable state or federal law. Additional discovery may be conducted by mutual stipulation, and the Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests, based on the Arbitrator’s determination whether additional discovery is warranted by the circumstances of a particular case.

14.13.

Arbitration Fees and Costs. GapNurse will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees, except for the filing fee (if any) as required by the mutually selected Arbitrator or AAA Rules (if the Parties do not mutually select the Arbitrator), but you will not be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. GapNurse shall pay any remaining portion of the initial fee. Each Party will pay for its own costs and attorneys’ fees, if any, except that the Arbitrator may award reasonable fees and costs to the prevailing Party as provided by law or contract. The Arbitrator will resolve any disputes regarding costs/fees associated with arbitration.

14.14.

Sanctions. To the extent allowed by applicable law and if the claim(s) or counterclaim(s) brought by either Party in arbitration allow for imposition of sanctions, the Arbitrator may award either Party its reasonable attorneys’ fees and costs, including reasonable expenses associated with production of witnesses or proof, upon a finding that the claim or counterclaim was frivolous or brought solely to harass you or GapNurse.
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15. ENTIRE AGREEMENT; MODIFICATION

This Agreement (i) contains the complete and entire understanding and agreement of the Parties and GapNurse with respect to the subject matter hereof,(ii) supersedes all prior and contemporaneous understandings, conditions and agreements, oral or written, express or implied, respecting the use of our Platform or use of the app in connection with the subject matter hereof, and (iii) and modification of this Agreement shall be made in writing and executed by GapNurse and the relevant Party.
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16.  ASSIGNMENT

Neither Clinician or Facility may assign its rights or obligations under this Agreement without the express written consent of GapNurse.
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17.  CAPTIONS

The captions and headings are for reference and convenience only and shall not affect the construction or interpretation of any of the terms of this Agreement
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18.  SURVIVAL

All provisions of this Agreement, except those in Sections 1.1 and 1.3, shall survive any termination or expiration of the Parties use of our Platform and shall survive to the extent necessary for the enforcement of the Parties’ rights and obligations. The termination or expiration shall not adversely affect the rights or obligations of the Parties to the extent accrued prior to such termination or expiration.
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19.  GOVERNING LAW AND CONSENT TO JURISDICTION

Other than the Arbitration Agreement, PAGA waiver, and Class Action Waiver, which shall be governed by the laws described therein, this Agreement shall be construed according to the laws of the State of Wyoming without regard to conflict of laws provisions thereof. The Parties hereby submit to the jurisdiction of the state and federal courts in Cheyenne, Wyoming, and agree that said courts have the sole and exclusive jurisdiction over any and all disputes and causes of action involving such Party that arise out of or relate to this Agreement or its performance despite any venue requirement by local statute or rule.
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20.  SEVERABILITY

If any provision of this Agreement is declared by any court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining provisions of this Agreement, which shall be fully severable, and given full force and effect.
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21.  WAIVER

The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute the waiver of any further breach of such term or condition or the waiver of any other term or condition of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting GapNurse from pursuing any other remedies available to it for any breach or threatened breach, including the recovery of money damages or injunctive relief.
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22.  ATTORNEYS’ FEES

If either Party brings a legal action relating to this Agreement in any way, the prevailing Party is entitled to receive from the other Party all attorney’s fees, costs, and expenses incurred by the prevailing Party. In the event the court or arbitrator determines that a Party is a defaulting Party under this Agreement, then the non-defaulting Party shall receive all attorney’s fees, costs, expenses, interest, incurred. This provision does not limit the court in any way to award other forms of relief to either Party.
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23.  REMEDIES

In addition to any other available remedies at law, the Parties further agree to, without limitation, declaratory, injunctive, and equitable relief without special additional procedural requirements or delay in the event such should become necessary to compel fulfillment of this Agreement.
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24.  NO CONSTRUCTION AGAINST DRAFTER

The Parties each acknowledge that no rule of construction providing any ambiguity or uncertainty in the Agreement is to be construed against the drafter thereof, nor will it be employed in interpreting or enforcing the terms of this Agreement.
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25.  FREE AND VOLUNTARY ACCEPTANCE OF AGREEMENT

The Parties acknowledge and warrant that they have read carefully, agreed to, and understood the terms of this Agreement prior to signing it, and that they have executed it freely and voluntarily after full review of its terms and satisfying themselves that this Agreement is fair and equitable to them. The Parties acknowledge that they have accepted and entered into this Agreement without fraud, duress, or undue influence and that they are not relying on any representation, guarantee, warranty, or promise from any other Party in agreeing and accepting this Agreement other than those contained in this Agreement. The Parties represent, warrant, and agree that upon accepting and entering into this Agreement, they, and each of them, are not relying upon and have not relied upon any representation, promise, or statement made by anyone which is not recited, contained, or embodied in this Agreement.
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26.  CALIFORNIA USERS AND RESIDENTS

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

27. HIPAA NOTICE AND BUSINESS ASSOCIATE CONFIDENTIALITY

As of the Effective Date of this Agreement, a mutual HIPAA Privacy Agreement (“Agreement”), is entered into by and between each party to these Terms. Each party recognizes that, in the duration of their relationships, they will, from time-to-time act as either a Covered Entity or Business Associate, as the case may be.

Term.

This Agreement shall remain in effect for the duration of this Agreement and shall apply to all of the Services and/or Supplies delivered by the Business Associate pursuant to this Agreement.

HIPAA Assurances.

In the event Business Associate creates, receives, maintains, or otherwise is exposed to personally identifiable or aggregate patient or other medical information defined as Protected Health Information (“PHI”) in the Health Insurance Portability and Accountability Act of 1996 or its relevant regulations (“HIPAA”) and otherwise meets the definition of Business Associate as defined in the HIPAA Privacy Standards (45 CFR Parts 160 and 164), Business Associate shall:

1. Recognize that HITECH (the Health Information Technology for Economic and Clinical Health Act of 2009) and the regulations thereunder (including 45 C.F.R. Sections 164.308, 164.310, 164.312, and 164.316), apply to a business associate of a covered entity in the same manner that such sections apply to the covered entity,
2. Not use or further disclose the PHI, except as permitted by law,
3. Not use or further disclose the PHI in a manner that had the Covered Entity done so, would violate the requirements of HIPAA,
4. Use appropriate safeguards (including implementing administrative, physical, and technical safeguards for electronic PHI) to protect the confidentiality, integrity, and availability of and to prevent the use or disclosure of the PHI other than as provided for by this Agreement,
5. Comply with each applicable requirements of 45 C.F.R. Part 162 if the Business Associate conducts Standard Transactions for or on behalf of the Covered Entity,
6. Report promptly to the Covered Entity any security incident or other use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware,
7. This Agreement serves to ensure that any subcontractors or agents who receive or are exposed to PHI (whether in electronic or other format) are explained the Business Associate obligations under this paragraph and agree to the same restrictions and conditions,
8. Make available PHI in accordance with the individual’s rights as required under the HIPAA regulations,
9. Account for PHI disclosures for up to the past six (6) years as requested by Covered Entity, which shall include: (i) dates of disclosure, (ii) names of the entities or persons who received the PHI, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the purpose and basis of such disclosure,
10. Make its internal practices, books, and records that relate to the use and disclosure of PHI available to the U.S. Secretary of Health and Human Services for purposes of determining Customer’s compliance with HIPAA; and
11. Incorporate any amendments or corrections to PHI when notified by Customer or enter into a Business Associate Agreement or other necessary Agreements to comply with HIPAA.

Termination Upon Breach of Provisions.

Notwithstanding any other provision of this Agreement, Covered Entity may immediately terminate this Agreement if it determines that Business Associate breaches any term in this Agreement. Alternatively, Covered Entity may give written notice to Business Associate in the event of a breach and give Business Associate five (5) business days to cure such breach. Covered Entity shall also have the option to immediately stop all further disclosures of PHI to Business Associate if Covered Entity reasonably determines that Business Associate has breached its obligations under this Agreement. In the event that termination of this Agreement and the Agreement is not feasible, Business Associate hereby acknowledges that the Covered Entity shall be required to report the breach to the Secretary of the U.S. Department of Health and Human Services, notwithstanding any other provision of this Agreement or Agreement to the contrary.

Return or Destruction of Protected Health Information upon Termination.

Upon the termination of this Agreement, unless otherwise directed by Covered Entity, Business Associate shall either return or destroy all PHI received from the Covered Entity or created or received by Business Associate on behalf of the Covered Entity in which Business Associate maintains in any form. Business Associate shall not retain any copies of such PHI. Notwithstanding the foregoing, in the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible upon termination of this Agreement, Business Associate shall provide to Covered Entity notification of the condition that makes return or destruction infeasible. To the extent that it is not feasible for Business Associate to return or destroy such PHI, the terms and provisions of this Agreement shall survive such termination or expiration and such PHI shall be used or disclosed solely as permitted by law for so long as Business Associate maintains such Protected Health Information.

No Third-Party Beneficiaries.

The parties agree that the terms of this Agreement shall apply only to themselves and are not for the benefit of any third-party beneficiaries.

De-Identified Data.

Notwithstanding the provisions of this Agreement, Business Associate and its subcontractors may disclose non-personally identifiable information provided that the disclosed information does not include a key or other mechanism that would enable the information to be identified.

Amendment.

Business Associate and Covered Entity agree to amend this Agreement to the extent necessary to allow either party to comply with the Privacy Standards, the Standards for Electronic Transactions, the Security Standards, or other relevant state or federal laws or regulations created or amended to protect the privacy of patient information. All such amendments shall be made in a writing signed by both parties.

Interpretation.

Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the then most current version of HIPAA and the HIPAA privacy regulations.

Definitions.

Capitalized terms used in this Agreement shall have the meanings assigned to them as outlined in HIPAA and its related regulations.

Survival.

The obligations imposed by this Agreement shall survive any expiration or termination of this Agreement.