PLEASE TAKE NOTICE THIS IS A BINDING CONTRACTUAL AGREEMENT AND BY ENTERING INTO THIS TERMS OF SERVICE AGREEMENT YOU ARE ACCEPTING, ACKNOWLEDGING, AND AGREEING TO ALL TERMS AND OBLIGATIONS AS OUTLINED BELOW. PLEASE READ THESE TERMS CAREFULLY.
YOU MUST BE AT LEAST 18 YEARS OF AGE TO AGREE TO THIS TERMS OF SERVICE AGREEMENT, AND USE THE NURSA PLATFORM. IF YOU ARE NOT 18 YEARS OLD YOU ARE NOT AUTHORIZED TO USE THE NURSA PLATFORM.
This Terms of Service Agreement (“Agreement”) is entered into by you, as a Clinician or Facility (“Clinician,” “Facility,” or “you”) as defined below and Nursa, Inc. (“Nursa,”“Company,” “we,” “us,” “our”) at 5295 S. Commerce Dr. STE 600, Murray, UT 84107(“Nursa”). 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:
1. SELECT DEFINITIONS
“Clinician” means an independent contractor health care professional who requests Shifts from a Facility through the Nursa Platform for the purpose of providing to the Facility professional health care services.
“Facility” means a healthcare service provider, 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 posts on the Nursa Platform per diem or other Shifts for request by Clinicians.
“Nursa app”, “app”, “Nursa Platform” or “our Platform” is a software platform that provides information, healthcare community interface, and a marketplace whereby Facilities and Clinicians may connect for the posting, requesting, and acceptance of per diem or other Shifts.
“Confidential Information” means information about the Company and its customers and its customer prospects, Proprietary Information, Clinicians and Facilities utilizing the Nursa Platform (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 privy to of 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 the Nursa Platform 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
“Proprietary Information” means and shall include but is not limited to any and all discoveries, developments, methods, processes, compositions, works, lists, tables, concepts, and ideas (whether or not patentable or copyrightable) domain names, trade secrets, copyrights, ideas, techniques, technical data, know-how, inventions (whether patentable or not), and/or any other information of any type relating to designs, configurations, toolings, documentation, recorded data, schematics, circuits, mask works, layouts, source code, object code, master works, master databases, algorithms, flow charts, formulae, 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 (whether or not patentable), processes, formulas, technology, designs, drawings, 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.
“Shift” means a specified date and time during which a Clinician is contracted to perform professional healthcare services for a Facility. Shifts are posted on the Nursa Platform by Facilities and requested via the Nursa Platform by Clinicians.
“Clinician” means an independent contractor health care professional who requests Shifts from a Facility through the Nursa Platform for the purpose of providing to the Facility professional health care services.
2. ACCEPTANCE OF THIS AGREEMENT
Age and Authority. You must be at least 18 (eighteen) years of age to use the Nursa Platform. By agreeing to this Agreement, by any use of the Nursa Platform, or by creating a profile in the Nursa Platform, 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.
Acknowledgement. You acknowledge that you are entering into this Agreement either by clicking “I agree” at the bottom of this Agreement, by any use of the Nursa Platform, by signing or acknowledging this Agreement, and / or creating a profile in the Nursa Platform as a Clinician or a Facility. In doing so, you expressly acknowledge that you understand this Agreement in its entirety and accept all of 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.
Updates. Nursa may amend this Agreement from time-to-time. Amendments will be effective upon Nursa’s posting of such updated Agreement at this location. Your continued access or use of the Platform after such posting 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.
3. LICENSE AND ACCEPTED USE OF THE NURSA PLATFORM
Services. The Nursa Platform is a software platform whereby Facilities and Clinicians may connect for the posting, viewing, requesting, and acceptance of Shifts. Nursa is not a healthcare provider and does not provide healthcare services, nor does it provide, employ, refer, assign, list, or place healthcare providers who utilize its software platform.
Agency. The Parties hereby acknowledge and agree that: (a) Facilities have the sole responsibility to accept or decline any Clinician Shift request; (b) any Shift that is listed on the Nursa Platform is not the product or subject to the control of Nursa, (c) all information contained in any posted Shift and any error, or other discrepancy regarding a posted Shift 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 Shifts voluntarily and at their own discretion not subject to the control of Nursa; (e) all Clinicians using and accessing the Nursa Platform are independent contractors as further discussed herein; and (f) 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.
Use and License. Through use of the Nursa Platform, Facilities and Clinicians may connect for the posting, viewing, requesting, and acceptance of Shifts. This is the accepted use of our Platform. We 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 any other Intellectual Property as described herein. The license described herein may be revoked at any time or for any reason.
Access to the Platform. We reserve the right to suspend or remove your access to and use of the Nursa Platform 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 or necessary background check screenings, untimely Clinician and Facility cancellations, and non-payment.
4. INTELLECTUAL PROPERTY
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 Nursa 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 posting 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.
Duty of Confidentiality and Restriction. At any and 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 the Nursa Platform 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 Nursa’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 Nursa that Party shall provide Nursa with prompt written notice of such request or requirement in order to enable Nursa (i) to seek an appropriate protective order or other remedy, (ii) to consult with the Parties with respect to Nursa’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. In the event that such protective order or other remedy is not obtained, or Nursa 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 right, title, and interest in and to the Intellectual Property will remain the exclusive property of Nursa. 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 as a result of any similarities between those ideas and materials that may appear in future Nursa programs or content. You are responsible for whatever material you submit, including its reliability, originality, and copyright and agree that any and all rights to materials, ideas, submissions, submitted to us become the exclusive property of Nursa.
5. YOUR INFORMATION
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.
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 Nursa 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 Nursa 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 communications from Nursa or affiliated companies. We may also reach out to you to complete certain questions we may have including but not limited to your relationship with us, your use of our Platform, in order 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.
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: 5295 S. Commerce Dr., Murray, UT 84107; email@example.com; (801) 695-9609.
7. ADDITIONAL TERMS APPLICABLE TO CLINICIANS
Clinician Agency. Consistent with Section 3.2, you acknowledge and agree that as a Clinician, no employment, agency, partnership, or joint venture relationship is established between you and Nursa or you and any Facility. 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.
Independent Contractor Status. Clinicians utilizing the Nursa Platform do so only as independent 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:
Clinician operates the Clinician’s own independent business and is providing services in connection with the Nursa marketplace only as an independent contractor;
Clinician is not an employee of Nursa and that the professional services Clinician may render in connection with Nursa or our Platform do not establish any right to any compensation or benefits that Nursa 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;
Clinician is solely responsible for all tax liability associated with payments received from or through Nursa and Nursa will not withhold any taxes or other state or federal withholdings from payments to the Clinician;
The Nursa Platform 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 and expected to provide services through means other than connecting with Facilities via the Nursa Platform;
Clinician has the free and voluntary right to accept or decline requests for its professional services through the Nursa Platform;
Clinician is not utilizing the Platform such that it is economically dependent on use of the Platform;
Nursa does not dictate the performance, methods or process the Clinician uses to perform services for any Facility. Further, Nursa 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;
Clinician will be paid only for the performance of its professional services provided to a Facility and that Nursa is not providing the Clinician with wages, salary, overtime or any minimum or regular payment;
Clinician is responsible for providing and maintaining all business registrations, licenses, certifications, tools, and equipment required to perform its professional services;
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;
Clinician may realize a profit or loss in connection with providing services with Facility with whom it connects on our Platform; and
Nursa 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.
Payment Terms. For the purposes of this Agreement the “Clinician Fee” is the payment amount posted on the Shift that a Clinician has successfully requested from a Facility. The Clinician Fee shall be paid in relation to services rendered and consistent with this and Sections 8.2 and 8.8 of this Agreement. You acknowledge and agree that the Clinician Fee may be adjusted in certain circumstances, including if you do not provide the professional services described in the Shift description as posted by the Facility. You acknowledge and agree that the Clinician Fee may be decoupled from Charges (as defined below) paid by the Facility and that the difference between the Clinician Fee and Charges is inclusive of Nursa’s “Service Fee”, the amount paid to Nursa in consideration for your use of the Nursa Platform and in relation the particular Shift. Both the Clinician Fee and Service Fee may vary based on a number of factors, including but not limited to demand, time of day, location, license, certification, or registration type. You will receive payment in a reasonably timely fashion for your provision of professional services to a Facility. Notwithstanding Section 3.2, you authorize Nursa to act as your limited agent for the purpose of collecting payments owed to you by Facility. You acknowledge and understand that in order to use our Platform, you may be required to authorize payment through a third party. Payments are typically processed on military time and after the Shift Report has been completed and properly processed. All Shift Reports must be completed by Clinician within seven (7) days of the end of the Shift, or payment of the Clinician Fee and any other fees owed to you may be forfeited by you. Nursa 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 Nursa or to Facility may be recouped by Nursa, including through withholding of future payments.
Cancellations. If a Clinician is unable to work an accepted Shift, the Clinician must cancel the shift through the Nursa Platform. Failing to adhere to Nursa’s cancellation policies by canceling a Shift late or failure to show up for an accepted Shift may result in the suspension or removal or your access to the Nursa Platform.
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 disqualifying criminal or other history. Completion of the background check screening process includes but is not limited to, completing the wallet in your profile, completing required authorization forms as applicable, submitting fingerprints as applicable, and following through with the necessary process to finalize and complete any identity verification or background check. You agree to pay the costs of any such background checks. You agree to allow communication to you through emails, calls, text, 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
Sharing of Background Check Information. To the fullest extent allowable under law you authorize Nursa or any applicable third-party vendor contracted by Nursa to conduct, research, share, disclose, or otherwise make available to Facilities the following background information or documentation, including but not limited to:
Your inclusion on the following lists: Office of Inspector General List of Excluded Entities; Office of Inspector General – Most Wanted Fugitives; System for Award Management – Excluded Parties; and Office of Foreign Asset Control – Specially Designated Nationals;
Your inclusion on any sex offender registry list;
Your federal, state, and county criminal history;
The results of any applicable state registry or database check;
Your license, certification, or registration status and expiration date;
Proof of TB testing and any required Immunizations includingCOVID-19 and Influenza;
Results of any drug test;
Any other credential, documentation, professional or industry certifications, registrations, or the like that you may upload;
Any past disciplinary actions against you as reported by relevant government agencies, if any; and
Proof of your education or training.
Accuracy of Information. You, the Clinician, bear the sole and absolute responsibility to review all information that you provide to Nursa and its third party background check providers or that is presented on your profile by you or Nursa. You shall indemnify and hold Nursa harmless for any error, omission, failure to update, or other discrepancy that may exist now or in the future, known or unknown, with regard to any information or documentation that you provide to Nursa, upload into the Nursa 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.
Tax Withholding, Insurance, and Benefits. As a Clinician, you understand and acknowledge that it is your sole responsibility for withholding, accruing, and paying any and 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 Nursa will report all payments made to you by providing you with an IRS 1099 tax form for each relevant tax year. As a Clinician you agree and acknowledge that you shall carry occupational safety and medical malpractice insurance when requesting Shifts on the Nursa Platform, as well as any insurance that may be required by law. You acknowledge that you will complete and provide to Nursa an IRS W-9 form for payment purposes.
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.
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 posting, Clinician is free to accept or refuse the request. When considering such request, Clinician shall use their best professional judgment to ensure their safety and the safety of others. Nursa 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.
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:
You possess an active healthcare certification, license, or registration that is in good standing and free of disciplinary action or restriction that would prevent you from providing the relevant professional healthcare services and you will only request Shifts for which you possess the certification, license, or registration required for that particular shift;
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;
You will perform your professional healthcare services consistent with all regulatory or legal requirements;
You have no felony or disqualifying convictions or pending felony or disqualifying charges in any state of federal court;
You have never been found to have committed abuse or neglect by a government agency or regulatory body;
You will not engage in behavior while performing healthcare services at a Facility, or take action or inaction that may harm or threaten to harm the safety of patients or others;
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.
You warrant that any use of the Nursa Platform does not violate any other agreements or restrictions that may be applicable to you.
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 Nursa, the Facility administrator, local authorities, nursing board, or applicable regulatory body to report any such issues.
8. ADDITIONAL TERMS APPLICABLE TO FACILITIES
Separate Agreements. As a Facility, you and Nursa 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 with regard to any nonconflicting terms.
Verification of Shift, Shift Reports. For all completed Clinician Shifts scheduled via the Nursa Platform, Nursa agrees to document the Job ID, Clinician name, Charges, and start time, end time, and time off-shift. Start time, end time, time-off shift and total hours worked shall be provided by the Facility and Clinicians in the Shift Report. Nursa shall provide to Facility Shift Reports upon submission from a Clinician. In the event that Shift Reports are not reviewed nor verified by the Facility within 48 business hours, Facility shall accept auto-verified Shift Reports. Any such auto-verified Shift Report shall be deemed accepted by the Facility as true and correct.
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 any and all items that have been uploaded by the Clinician or Nursa prior to engaging the services of any Clinician. The Nursa Platform requires proof of licensure, certification, or registration prior to Clinician’s requesting a shift. 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 Nursa 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 the Nursa Platform 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 the Nursa Platform to third parties or employees who do not require such information or are not authorized to view such information under the law.
Clinician’s Profile. Nursa may make available on a Clinician’s profile the information described in Section 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. 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 a Clinician’s request you undertake any and 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 Nursa, relevant government agencies and authorities, nursing board, or regulatory body for reporting purpose.
Clinician’s Independent Contractor Status. You acknowledge and agree that Clinicians are independent contractors as described herein and that Clinicians are not employees of Nursa. 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.
Department or Unit. If you request a Clinician to provide professional healthcare services to a different department or unit than that specified on your posting, you acknowledge that the Clinician is free to accept or refuse the request. You further warrant that you will independently determine whether or not a Clinician is competent and qualified to fulfill the requirements of the relevant scope of practice. You shall also assume any and all risks regarding such requests. Nursa does not require a Clinician to accept or refuse any such requests. If a Clinician chooses to refuse a such a request, Nursa 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.
Charges and Invoicing. As a user of our Platform you understand that usage may result in “Charges” to you. Charges include the Clinician Fee as described in Section 7.3, the Service Fee as described in Section 7.3, any cancellation fees for a particular Shift posted by Facility, and may include additional fees, including late fees. Charge estimates, which include the estimated Clinician Fee and the Service Fee, will be listed through job creation in relation to each Shift that you post. Charge estimates for Facilities are obtained through the job creation process for your viewing before you may publicly post a Shift on our Platform. The Clinician Fee and Service Fee may fluctuate based on factors that may include but are not limited to demand, time of day, location, and licensure or certification type. Nursa reserves the right to determine and modify the Clinician Fee and Service Fee based on these same conditions among others. The Clinician Fee and Service Fee may also vary based on the type of service requested. You are responsible for reviewing and agreeing to the Charge estimate on each Shift posted by you on our Platform and you are responsible for all Charges incurred under your user account. Any errors, omissions, or corrections contained in the invoice or to the Charges must be reported in writing to Nursa within thirty (30) days of the Shift’s completion. After thirty days, all Charges shall be deemed correct, accurate, and without objection. All Charges are facilitated through a third-party payment processor. Nursa may replace its third party processor without notice to you. Cash payments are strictly prohibited. Your payment of Charges to Nursa satisfies your payment obligations for your use of the Nursa platform and associated services. Nursa may group multiple Charges into a single aggregate invoice or transaction based on the nature of the Charges and/or the date(s) they were incurred.
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 the lesser of 1.5% per month of the unpaid balance (multiplied against your bill balance and compounded daily), or the highest rate permitted by law. You shall reimburse us for all our expenses we incur to recover such monies, including attorneys’ fees, collection costs, collection fees, court costs, and service costs, regardless if the case is filed in a court competent jurisdiction, is settled prior thereto, or is mediated or arbitrated. If you fail to pay on time and Nursa refers your 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 33.3% 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. Nursa 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.
Cancellation Policy for Facilities. You agree that Nursa reserves the right to implement, revise, and enforce policies to protect the wellbeing of its Platform, including but not limited to imposing fees for Facility’s untimely Shift cancellations at its discretion. This right includes but is not limited to assessment of the following Charges in relation to Shift cancellations: (a) if the Shift is canceled within 12 hours of Shift start time, the Facility will be billed a cancellation fee to be remitted to the Clinician less the Service Fee; and (b) if the Shift is canceled after shift start time the Facility shall be billed and Clinician will be paid for the part of the Shift worked by the Clinician, as well as the Service Fee. Facility may be required to additionally pay up to 50% of the remainder of the scheduled Shift hours. The cancellation policy may be updated at Nursa’s discretion.
Insurance. You shall maintain commercially reasonable insurance policies for general liability, property damage, and professional malpractice insurance. You shall provide documentation of said policies upon our written request.
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.
Facility Disclaimer. In addition to Section 10, 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.
9. TERM AND TERMINATION OF THIS AGREEMENT
This Agreement is effective on the date you sign up for our Platform. This Agreement shall continue until terminated by a Party. Upon any material breach of the Agreement, the non-breaching Party may immediately terminate the Agreement. You and Nursa may also terminate the Agreement by mutual agreement, and either Party may terminate the Agreement upon fifteen (15) days’ written notice. Nursa shall have no liability to You as a result of any termination of this Agreement by Nursa. Upon termination or cessation of your use of our Platform, we will stop providing you access to our Platform, and you will stop all use of our Platform. Upon termination, you authorize Nursa to automatically charge your credit card all unpaid fees owed to Nursa 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 Nursa may incur to collect unpaid amounts as further stated herein.
10. LIMITATION OF LIABILITY AND ASSUMPTION OF RISK
YOU ACKNOWLEDGE AND CONSENT THAT WE (NURSA, INC., 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 NURSA 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 SHIFT 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 NURSA FOR ANY CLAIM OR DAMAGE AS STATED HEREIN.
Clinician and Facility shall indemnify, defend, and hold Nursa 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 Nursa 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.
12. 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.
NURSA 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. NURSA 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 NURSA SHALL BE “AS IS” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. YOU ACKNOWLEDGE THAT NURSA 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 THE NURSA PLATFORM WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS IN THE NURSA PLATFORM WILL BE CORRECTED, OR THAT THE NURSA PLATFORM 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 THE NURSA PLATFORM.
14. 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 a 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 perform its obligations hereunder. Further, the affected Party shall use any reasonable effort to avoid or remove such causes if reasonably available.
15. MEDIATION AND ARBITRATION
Mutual Agreement to Arbitrate (“Arbitration Agreement”) and Class Action Waiver. PLEASE READ THIS SECTION 15 CAREFULLY—IT AFFECTS THE PARTIES’ LEGAL RIGHTS AND GOVERNS HOW CLINICIAN, FACILITY, AND NURSA CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION 15 WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND NURSA 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.
THIS MUTUAL AGREEMENT TO ARBITRATE (“ARBITRATION AGREEMENT”) IS BETWEEN CLINICIAN, FACILITY, (ALSO REFERRED TO IN THIS ARBITRATION AGREEMENT AS “YOU”, “YOUR”, AND “I”) AND NURSA. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) APPLIES TO THIS ARBITRATION AGREEMENT, WHICH EVIDENCES COMMERCE. THE MUTUAL OBLIGATIONS BY NURSA, 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.
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 Nursa may have against you or that you may have against Nursa, 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.
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.
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.
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 Nursa’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 NURSA™ or Facility related to Charges or other amounts charged to Facility or owed to NURSA™. 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 Salt Lake County, Utah, 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. Nursa 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.
Arbitration Procedures. You and Nursa 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.
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.
Class and Collective Action Waivers. You and Nursa agree to bring any claim on an individual basis only. Accordingly, YOU AND NURSA 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 Nursa. 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.
PAGA Individual Action Requirement. You and Nursa agree that you will bring any claim under the Private Attorneys General Act (“PAGA”) on an individual basis only. YOU AND NURSA 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 Nursa. 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.
Notice of Arbitration Demand, Cooling Off Period, and Informal Settlement Conference. You and Nursa 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 Nursa, as applicable). Written demand for arbitration to Nursa must be sent to the attention of Legal Department, currently at 5295 S. Commerce Dr. STE 600, Murray, UT 84107. You will be given notice of any demand for arbitration by Nursa at the last address contained in Nursa’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 Nursa representative must both personally participate; any counsel representing you or Nursa 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 Nursa 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.
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.
Arbitration Fees and Costs. Nursa 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. Nursa 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.
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 Nursa.
16. ENTIRE AGREEMENT; MODIFICATION
This Agreement (i) contains the complete and entire understanding and agreement of the Parties and Nursa 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 Nursa and the relevant Party.
Neither Clinician or Facility may assign its rights or obligations under this Agreement without the express written consent of Nursa.
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
All provisions of this Agreement, except those in Sections 3.1 and 3.3, 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.
20. 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 Utah without regard to conflict of laws provisions thereof. The Parties hereby submit to the jurisdiction of the state and federal courts in Salt Lake County, Utah, 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.
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.
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 Nursa from pursuing any other remedies available to it for any breach or threatened breach, including the recovery of money damages or injunctive relief.
23. 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.
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.
25. 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 dafter thereof, nor will it be employed in interpreting or enforcing the terms of this Agreement.
26. 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.
27. 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.