SHIFTKEY LLC TECHNOLOGY SERVICES AGREEMENT
Effective Date: July 31, 2017
This Technology Services Agreement (“Agreement”) constitutes a legal agreement between you, an
individual and ShiftKey LLC, a Texas limited liability company (as applicable, “Company,” “we,” “our,”
Company, provides lead generation between healthcare facilities (“Facilities”) and you, an
independent provider of healthcare services (singularly “you” or “Provider”), using the ShiftKey
Services (as further defined below). The ShiftKey Services enable Providers to seek, receive, and
fulfill requests for healthcare services from an authorized Facility through the website located at
shiftkey.com (the “Site,” together with the various healthcare service requests procured through the
Site or any new features and applications, the “Services.”). You agree that these terms govern your
access and use of the ShiftKey Services.
You acknowledge and agree that Company is a technology services provider that does not provide
As an independent contractor, you may independently determine the number of Shifts (as further
defined below) you are willing to accept and the rate at which you will be paid.
IMPORTANT: PLEASE NOTE THAT TO USE THE SHIFTKEY SERVICES, YOU MUST AGREE TO THE
TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET
FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE
COMPANY ON AN INDIVIDUAL BASIS, EXCEPT AS PROVIDED IN SECTION 16.3, THROUGH FINAL
AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION PROVISION.
BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE
ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS
AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT
BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT-OUT
OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE
ARBITRATION PROVISION BELOW.
1.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of,
or is under common control with a party, where control means having more than fifty percent (50%)
of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 “Company Data” means all data related to the access and use of the ShiftKey Services
hereunder, including all data related to the provision of Shifts via the ShiftKey Services and Facility
1.3 “Facility” means the end user authorized by ShiftKey to use ShiftKey for the purpose
of obtaining Healthcare Services offered by Providers.
1.4 “Facility Information” means information about a Facility made available to Providers
in connection with such Facility’s request for and use of Healthcare Services which may include the
Facility’s name, address, contact information, and a description of a particular service need.
1.5 “Healthcare Services” means the healthcare services provided to Facilities through
Shifts via the ShiftKey Services in the Territory.
1.6 “Provider” means the pre-screened licensed local healthcare professionals that are
registered with ShiftKey to perform healthcare services for Facilities.
1.7 “Revenue Sharing Fee” has the meaning set forth in Section 4.4.
1.8 “Shift” is the provision of Healthcare Services which includes the type and scope of
work, the requested date and time of the work, the duration of the work, and the location at which
the work will be performed.
1.9 “Shift Fee” has the meaning set forth in Section 4.1.
1.10 “ShiftKey Services” means ShiftKey’s on-demand lead generation and related services
that enable healthcare service Providers to seek, receive and fulfill on-demand requests for
healthcare services by Facilities seeking healthcare services; such ShiftKey Services include access to
the ShiftKey software, websites, payment services as described in Section 4 below, and related
support services systems, as may be updated or modified from time to time.
1.11 “Territory” means the city or metro areas in the United States in which you are
enabled by ShiftKey to receive requests for Shifts.
2. Use of the ShiftKey Services
2.1 ShiftKey Account and Profile Creation.
2.1.1 Registration. You may view portions of the Services without registering for a
ShiftKey account, but as a condition of using certain aspects of the Services, including
scheduling a Shift, you are required to create a ShiftKey account by submitting your name,
address, phone number, email address, password, credentials, social security number, driver
license number, alternative names, and completing the Provider Consent to Background
Check form. When creating an account, you shall provide accurate, complete, and updated
registration information. Failure to do so shall constitute a breach of this Agreement, which
may result in immediate termination of your account.
2.1.2 Account Functions. Via your account, you will be able to set your preferences,
upload your credentials, view Shifts, bid for and accept Shifts, communicate with ShiftKey and
Facilities, submit completed Shifts, and manage your account. You acknowledge and agree
that we will grant Facilities you bid to work for access to view your name, contact
information, availability, and credentials and licenses.
2.1.3 Account Maintenance. As a Provider, you are solely responsible for uploading
and maintaining your credentials on your account. Failure to maintain up to date credentials
may result in restrictions on your account or account termination.
2.1.4 Unauthorized Use. You are solely responsible for activity that occurs on your
Account and shall be responsible for maintaining the confidentiality of your password for the
Services. You shall never use another Provider’s Account to accept a Shift. If you discover any
unauthorized use of your account, or other known account-related security breach, you must
report it to ShiftKey immediately. You agree that you are responsible for anything that
happens through your account until you close your account or prove that your account
security was compromised due to no fault of your own.
2.2 Online Shift Management Program. ShiftKey utilizes a proprietary online scheduling
system that allows Providers direct access to request shifts that are advertised by Facilities. All
requests, approvals, confirmations, and cancellations are done so only through this program.
Providers are solely responsible for ensuring the accuracy of their schedules within this system.
2.3 Provision of Healthcare Services. When you access the ShiftKey Services, Facility
requests for Healthcare Services may appear to you via the Site if you are available and in the
Territory of the User. If you accept a Facility’s request for Healthcare Services, the ShiftKey Services
will provide you with certain Facility Information, including the Facility’s name, location, and
description of the particular Healthcare Services needed. You shall not contact any Facilities or use
any Facility’s or Facility’s patient data for any reason other than for the purposes of fulfilling
Healthcare Services. As between Company and you, you acknowledge and agree that you, in
conjunction with Facility standards, shall be responsible for determining the most effective, efficient
and safe manner to perform each instance of Healthcare Services.
2.4 Your Relationship with Facilities. You acknowledge and agree that your provision of
Healthcare Services to a Facility creates a direct business relationship between you and the Facility.
ShiftKey is not responsible or liable for the actions or inactions of a Facility in relation to you or your
activities. You shall have the sole responsibility for any obligations or liabilities to Facilities or third
parties that arise from your provision of Healthcare Services. You acknowledge and agree that you
are solely responsible for taking such precautions as may be reasonable and proper (including
maintaining adequate insurance and licensing that meets the requirements of all applicable laws)
regarding any acts or omissions by you, of a Facility, or a third party. You acknowledge and agree that
the Company may release your contact, insurance, and/or licensing information to a Facility upon
such Facility’s reasonable request. You acknowledge and agree that, unless specifically consented to
by a Facility, you may not perform any additional Healthcare Services unless the additional
Healthcare Services are in response to an emergency and necessary to prevent harm or further
2.5 Your Relationship with ShiftKey.
2.5.1 You acknowledge and agree that ShiftKey’s provision to you of the ShiftKey
Services creates a direct business relationship between you and ShiftKey. ShiftKey does not,
and shall not be deemed to, direct or control you generally or in your performance under this
Agreement specifically, including in connection with your provision of Healthcare Services,
your acts or omissions, or your operation and maintenance of your equipment. ShiftKey
acknowledges that this relationship is a temporary, and not permanent, relationship. You
retain the sole right to determine when, where, and for how long you will utilize the ShiftKey
Services. You retain the option, via the ShiftKey Site or subsequently developed mobile
application, to attempt to accept or to decline or ignore a Facility’s request for Healthcare
Services via the ShiftKey Services, or to cancel an accepted request for Healthcare Services
via the ShiftKey Services, subject to ShiftKey’s then-current cancellation policies. With the
exception of any signage required by local law or permit/license requirements, ShiftKey shall
have no right to require you to: (a) display Company’s or any of its Affiliates’ names, logos or
colors on any of your equipment;(b) wear a uniform or any other clothing displaying
ShiftKey’s or any of its Affiliates’ names, logos or colors; and (c) ShiftKey will not be providing
you any equipment or training to provide Healthcare Services at the Facilities. You
acknowledge and agree that you have complete discretion to provide services or otherwise
engage in other business or employment activities. For the sake of clarity, you understand
that you retain the complete right to; (i) use other software application services in addition
to the ShiftKey Services; and (ii) engage in any other occupation or business.
2.5.2 Company retains the right to deactivate or otherwise restrict you from
accessing or using the ShiftKey Services in the event of a violation or alleged violation of this
Agreement, your disparagement of Company or any of its Affiliates, or your act or omission
that causes harm to Company’s or its Affiliates’ brand, reputation or business as determined
by Company in its sole discretion.
2.5.3 In addition to being able to bid, accept, schedule, reject, or cancel Shifts with
a Facility, you also may terminate your relationship with ShiftKey at any time and you
acknowledge that this relationship is on a temporary basis.
Company and its Affiliates reserve the right to use, share and display your and Facility ratings
and comments in any manner in connection with the business of Company and its Affiliates without
attribution to you or your approval. You acknowledge and agree that Company and its Affiliates are
distributors (without any obligation to verify) and not publishers of your and Facility ratings and
comments, provided that Company and its Affiliates reserve the right to edit or remove comments in
the event that such comments include obscenities or other objectionable content, include an
individual’s name or other personal information, or violate any privacy laws, other applicable laws
or Company’s or its Affiliates’ content policies.
2.7 Background Authorization. You agree that your use of the ShiftKey Services as a
Provider shall be contingent upon successful completion of a drug screen analysis and background
check, including but not limited to OIG, GSA, EMR, and County Criminal. In accordance with these
terms, you must complete the ShiftKey Background Check Approval form. You agree that you will be
responsible for the costs of the background check and that your first two Shifts will be subject to a
withholding of $35.00 each for reimbursement of background and drug screen costs.
2.8 Provider Reliability. ShiftKey does not guarantee the availability of shifts or any
number of shifts. If a Provider has a record of tardiness, cancellations, unprofessional behavior, or
any other behavior that ShiftKey deems undesirable in its sole discretion, ShiftKey reserves the right
to remove the Provider from any future Shifts without prior notice or cancel the Provider’s ShiftKey
2.9 DNR. Do Not Return (“DNR”) is a term used by both Facilities and Providers to express
the disinterest of having the Provider perform another Shift for the Facility. At any time, a Facility or
Provider may request a DNR for whatever reason they deem necessary.
2.10 Sentinel Event. A Sentinel Event is defined as an occurrence in which a patient
unexpectedly has loss of life or limb. If in direct care of a patient who suffers a Sentinel Event, and
after any such emergency related to the Sentinel Event ends, Provider agrees to immediately contact
ShiftKey and supply details to the event and its occurrence.
3. Licensure and Shift Requirements
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold
and maintain all licenses, permits, approvals and authority applicable to you that are necessary to
provide Healthcare Services to Facilities in the Territory; (b) possess the appropriate and current
level of training, expertise and experience to provide Healthcare Services in a professional manner
with due skill, care and diligence; and (c) maintain high standards of professionalism, service and
courtesy. You acknowledge and agree that you may be subject to certain background checks from
time to time in order to qualify to provide, and remain eligible to provide, Healthcare Services. You
acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to
deactivate or otherwise restrict you from accessing or using the ShiftKey Services if you fail to meet
the requirements set forth in this Agreement.
3.2 Documentation. To ensure your compliance with all requirements in Sections 3.1
above, you must provide to Company, written evidence and sufficient verification of all such licenses,
permits, approvals, authority, registrations, and certifications as deemed satisfactory by Company
prior to your fulfillment of any Shifts. Company shall, upon request, be entitled to review such
licenses, permits, approvals, authority, registrations and certifications from time to time, and your
failure to provide or maintain any of the foregoing shall constitute a material breach of this
Agreement. Company reserves the right to independently verify your documentation from time to
time in any way Company deems appropriate in its reasonable discretion. You agree that any
documentation of licenses, permits, approvals, authority, registrations, and certifications that is
provided to ShiftKey on your behalf shall be deemed authorized by you. WE DO NOT REDACT ANY
LICENSES, PERMITS, APPROVALS, AUTHORITY, REGISTRATIONS, CERTIFICATIONS, OR OTHER
DOCUMENTS THAT ARE UPLOADED TO THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT ANY
SENSITIVE INFORMATION THAT IS INCLUDED ON THE DOCUMENTS PROVIDED IN ACCORDANCE
WITH THIS SECTION 3.2 WILL BE AVAILABLE FOR VIEWING BY FACILITIES AND SHIFTKEY IN
3.3 Status of Required Documentation. Providers are solely responsible for keeping all
required professional credentials up to date and accurate. ShiftKey may, but is not required to, notify
Providers when their credentials are approaching expiration. Upon expiration of any required
credentials (i.e. professional license, CPR, immunizations, etc.) your ShiftKey account may be limited,
restricted, or deactivated from accessing any future Shifts, until all up to date credentials are received
and verified by ShiftKey. Prior to reactivation, ShiftKey may require other updated information from
Providers (i.e. updated W-9's). ShiftKey reserves the right to not reactivate Providers until all
required documentation is received and verified.
3.4 Notice of Disciplinary Action. Provider agrees to notify ShiftKey immediately of any
disciplinary or quality assurance proceedings involving Provider and any other third party, including,
but not limited to, licensing boards, quality assurance committees, hospitals or other medical
facilities and medical societies. Provider further agrees to promptly notify ShiftKey in the event any
such proceedings are pending or are instituted, whether or not such proceedings are related to
professional services Provider performed for a Facility using the ShiftKey Services.
4. Financial Terms
4.1 Shift Fee Calculation and Your Payment. Prior to accepting a Shift, you are entitled to
set the hourly rate that you will be paid during the Shift (“Bid Rate”). On the Site, you may bid for
Shifts by inputting your Bid Rate, the times that you are available, and your geographic location. If a
facility chooses you for a Shift, you will be paid the Bid Rate for as many hours you work (“Bid Fee”)
subject to the Cancellation Charges provisions in Section 4.5. The Revenue Sharing Fee (as defined
below) plus the Bid Fee will be the total fee charged to the Facility (“Shift Fee”).
Bid Fees are subject to change due to any adjustments or extensions requested by the Facility after
the Shift has been accepted by the Provider. After an adjusted estimate, and at the Provider’s
discretion, the Bid Fee shall be agreed to by the Provider and the Facility. You acknowledge and agree
that the Bid Fee, including any agreed upon adjustment, is the only payment you will receive in
connection with each Shift. You: (i) appoint Company as your limited payment collection agent solely
for the purpose of accepting the Bid Fee, and, depending on the Territory and/or if requested by you,
applicable taxes and fees from the User on your behalf via the payment processing functionality
facilitated by the ShiftKey Services; and (ii) agree that payment made by Facility to Company (or to
an Affiliate of Company acting as an agent of Company) shall be considered the same as payment
made directly by Facility to you. You shall always have the right to: (i) charge a fee that is less than
the pre-arranged Bid Fee; or (ii) negotiate, at your request, a Bid Fee that is lower than the
prearranged Bid Fee (each of (i) and (ii) herein, a “Negotiated Fee”). Company shall consider all such
requests from you in good faith. If you have separately agreed that other amounts may be deducted
from the Bid Fee prior to remittance to you – including the $70 fee that will be split over your first
two Shifts for fees initially incurred by Company on your behalf for background checks – the order of
any such deductions from the Bid Fee shall be determined exclusively by Company (as between you
4.2 Changes to Bid Rate. Company reserves the right to deny a proposed Bid Rate at any
time before scheduling a Shift in Company’s discretion. In the event that ShiftKey does not approve
of Provider’s Bid Rate, ShiftKey will provide immediate notice of acceptable Bid Rate and will allow
Provider to accept the suggested rate. Acceptance of the suggested Bid Rate after any such change
shall constitute your consent to such change.
4.3 Bid Fee Adjustment. Company reserves the right to: (i) adjust the Bid Fee for a
particular instance during a Shift (e.g., there was a material disagreement between the Provider and
the Facility, technical error in the ShiftKey Services, etc.); or (ii) cancel the Bid Fee for a particular
instance during a Shift (e.g., events concurrent with the ShiftKey Cancellation Policy, in the event of
a Facility complaint, fraud, etc.). Company’s decision to reduce or cancel the Bid Fee in any such
manner shall be exercised in a reasonable manner.
4.4 Revenue Sharing Fee. In consideration of Company’s provision of the ShiftKey
Services for your use and benefit hereunder, you agree to allow Company to collect a service fee on a
per Shift basis calculated on a variable percentage of the Shift Fee as provided to you via email or
otherwise made available electronically by Company from time to time for the applicable Territory
(“Revenue Sharing Fee”). In the event regulations applicable to your Territory require taxes to be
calculated on the Shift Fee, Company shall calculate the Revenue Sharing Fee based on the Shift Fee
net of such taxes. Company reserves the right to change the Revenue Sharing Fee at any time in
Company’s discretion based upon local market factors, and Company will provide you with notice in
the event of such change. Continued use of the ShiftKey Services after any such change in the Revenue
Sharing Fee calculation shall constitute your consent to such change.
4.5 Cancellation Charges. You acknowledge and agree that Facilities may elect to cancel
requests for Shifts that have been accepted by you via the ShiftKey Services up to two hours prior to
the start of any assignment without incurring any financial liability. In the event that a Facility cancels
an accepted request for a Shift within two hours from the start time indicated in the Shift listing or if
the Facility cancels after you arrive, you will be compensated for two (2) hours at the applicable rate
or the total hours worked, whichever is greater. If the Facility cancels the Shift after you have made
contact with patients on behalf of the Facility, you shall be compensated for four (4) at the applicable
rate or the total hours worked, whichever is greater.
4.6 Shift Verification Prior to Payment. Upon completion of any Shift, Providers should
submit a properly completed and error free Shift record to ShiftKey for approval. Providers must
monitor the Shift record verification process through ShiftKey's online Shift management program.
Any Shift completed that was not scheduled and verified through the ShiftKey services will not be
4.7 Timely Recordation of Shifts. Providers have up to 15 days following the completion
of any Shifts to submit Shift records to ShiftKey for approval and payment. ANY SHIFT RECORD
RECEIVED FOR SHIFTS WORKED GREAT THAN 15 DAYS PRIOR WILL NOT BE ACCEPTED OR PAID.
4.8 Methods of Payment. ShiftKey compensates Providers for Healthcare Services
Provided to Facilities via pay card or Automated Clearing House (“ACH”) deposit.
4.8.1 Pay Card. Payment is made via direct wire daily Monday – Friday onto a
Rapid! PayCard. The initial fee for the card is $7.95 to the Provider and $12.50 if the Provider
requires a replacement card. For each time that a Provider is paid via a Rapid! PayCard, there
is a $2.95 per transaction fee to load the card.
4.8.2 ACH Deposit. ACH deposit payments are distributed each Monday following
the Sunday through Saturday workweek.
4.9 Shift Disputes. ShiftKey works hard to make sure that a Facilities are happy with the
service provided by Nursing Professionals, but we understand that this is not always going to be the
case. When a Facility is not satisfied with the service provided during a Shift, and it is reported to
ShiftKey we may, at our discretion, issue a refund or adjust the fee paid to ShiftKey. As a result, this
may affect the amount paid to the Provider. We call these instances “Shift Disputes.” A Shift Dispute
includes, but is not limited to, the following:
• The Provider was incapable of performing the services agreed to for the Shift.
• The Provider inaccurately input the hours worked into the ShiftKey system and, as a result,
was overpaid for the work.
• During the Shift, the Provider did not comply with safety or health standards that were
required given the nature of the particular Shift.
If a Facility submits a Shift Dispute, ShiftKey will investigate the matter. After we receive a Shift
Dispute, we will contact you for you to provide any information regarding the matter. After our
investigation, we may, at our sole discretion, adjust your payment or withhold future payment in
accordance with Section 4.10.
4.10 Overpayment. In any event that you are over compensated for any Shift, whether
through clerical or technological error, you agree and understand that ShiftKey may recover the
amount of overpayment through deduction(s) of payments for future Shifts. The deduction for such
repayment will be equal to and never exceed the amount of the overpayment, unless ShiftKey and
Provider agree in writing to a series of smaller deductions in specified amounts.
4.11 Receipts. As part of the ShiftKey Services, Company provides you a system for the
delivery of receipts to Facilities for Shifts completed. Upon your completion of a Shift for a Facility,
Company prepares an applicable receipt and issues such receipt to the Facility via email on your
behalf. Such receipts are also provided to you via email or are available through the Site. Receipts
include the breakdown of amounts charged to the Facility for the Shifts and may include specific
information about you, including your name, contact information, as well as a description of the
Healthcare Services provided. Any corrections to a Facility’s receipt for Shifts must be submitted to
Company in writing within five (5) business days after the completion of such Shifts. Absent such a
notice, Company shall not be liable for any mistakes in or corrections to the receipt or for
recalculation or disbursement of the Bid Fee.
4.12 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of
the parties, through advertising and marketing, Company and its Affiliates may seek to attract new
Facilities to ShiftKey and to increase existing Facilities’ use of the ShiftKey Services. You acknowledge
and agree such advertising or marketing does not entitle you to any additional monetary amounts
beyond the amounts expressly set forth in this Agreement.
4.13 Taxes. You acknowledge and agree that you are required to: (a) complete all tax
registration obligations and calculate and remit all tax liabilities related to your completion of Shifts
as required by applicable law; and (b) provide Company with all relevant tax information. You further
acknowledge and agree that you are responsible for taxes on your own income arising from the
performance of Shifts. Notwithstanding anything to the contrary in this Agreement, Company may in
its reasonable discretion based on applicable tax and regulatory considerations, collect and remit
taxes resulting from your provision of Shifts and/or provide any of the relevant tax information you
have provided pursuant to the foregoing requirements in this Section 4.13 directly to the applicable
governmental tax authorities on your behalf or otherwise.
5. Cancellation and No Call/No Show Policy
5.1 Cancellation by Provider. Providers may cancel any request prior to approval by a
Facility. Once Providers are approved for a Shift, Providers must communicate any cancellations
directly with ShiftKey at email@example.com. (At no time should a provider communicate directly
with a Client facility regarding a cancellation).
5.2 Cancellation by Facility. In accordance with Section 4.5, you acknowledge and agree
that Facilities may elect to cancel requests for Shifts that have been accepted by you via the ShiftKey
Services up to two hours prior to the start of any assignment without incurring any financial liability.
In the event that a Facility cancels an accepted request for a Shift within two hours from the start
time indicated in the Shift listing or if the Facility cancels after you arrive, you will be compensated
for two (2) hours at the applicable rate or the total hours worked, whichever is greater. If the Facility
cancels the Shift after the you have made contact with patients on behalf of the Facility, you shall be
compensated for four (4) hours at the applicable rate or the total hours worked, whichever is greater.
5.3 Notification of Cancelled Shift. Shift cancellations are done solely through our Shift
management software. Providers should ensure proper notification settings are enabled under their
profile in order to be notified if there has been a change in an approved shift or a requested shift has
been approved or modified. ShiftKey is not responsible for Provider notification settings (i.e. text
messages, emails, etc.) or the receipt of any notifications. Providers are encouraged to elect to receive
all text and email notifications when setting up their online account and should always ensure
assignment accuracy through ShiftKey’s online shift management program.
5.4 No Call/No Show. Personnel who request and are approved for an assignment and do
not show up without notifying ShiftKey, will be removed from any future Shifts and have their
account access restricted unless adequate reasoning and documentation is provided.
6. Proprietary Rights; License
6.1 License Grant. Subject to the terms and conditions of this Agreement, Company
hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license,
during the term of this Agreement, to use the ShiftKey Services (including the Site or any ShiftKey
mobile application) solely for the purpose of providing healthcare services to Facilities and tracking
resulting Shift Fees, Bid Fees, and Revenue Sharing Fees. All rights not expressly granted to you are
reserved by Company, its Affiliates and their respective licensors.
6.2 Restrictions. You shall not, and shall not allow any other party to: (a) license,
sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other
party the ShiftKey Services in any way; (b) modify or make derivative works based upon the ShiftKey
Services; (c) improperly use the ShiftKey Services, including creating Internet “links” to any part of
the ShiftKey Services, “framing” or “mirroring” any part of the ShiftKey Services on any other
websites or systems, or “scraping” or otherwise improperly obtaining data from ShiftKey Services;
(d) reverse engineer, decompile, modify, or disassemble the ShiftKey Services, except as allowed
under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition,
you shall not, and shall not allow any other party to, access or use the ShiftKey Services to: (i) design
or develop a competitive or substantially similar product or service; (ii) copy or extract any features,
functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the
ShiftKey Services an automated program or script, including web spiders, crawlers, robots, indexers,
bots, viruses or worms, or any program which may make multiple server requests per second, or
unduly burden or hinder the operation and/or performance of the ShiftKey Services; or (iv) attempt
to gain unauthorized access to the ShiftKey Services or its related systems or networks.
6.3 Ownership. The ShiftKey Services and Company Data, including all intellectual
property rights therein, are and shall remain (as between you and Company) the property of
Company, its Affiliates or their respective licensors. Neither this Agreement nor your use of the
ShiftKey Services or Company Data conveys or grants to you any rights in or related to the ShiftKey
Services or Company Data, except for the limited license granted above. Other than as specifically
permitted by the Company in connection with the ShiftKey Services, you are not permitted to use or
reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names,
logos, products and service names, trademarks, service marks, trade dress, copyrights or other
indicia of ownership, alone and in combination with other letters, punctuation, words, symbols
and/or designs (the “ShiftKey Marks and Names") for any commercial purposes. You agree that you
will not try to register or otherwise use and/or claim ownership in any of the ShiftKey Marks and
Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or
in any confusingly similar mark, name or title, for any goods and services.
7.1 Each party acknowledges and agrees that in the performance of this Agreement it may
have access to or may be exposed to, directly or indirectly, confidential information of the other party
or related third parties ("Confidential Information"). Confidential Information includes Company
Data, Facility Information, and the transaction volume, marketing and business plans, business,
financial, technical, operational and such other non-public information of each party (whether
disclosed in writing or verbally) that such party designates as being proprietary or confidential or of
which the other party should reasonably know that it should be treated as confidential.
7.2 Each party acknowledges and agrees that: (a) all Confidential Information shall
remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of
the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose
Confidential Information of the other party to any third party, except to its employees, officers,
contractors, agents and service providers ("Permitted Persons") as necessary to perform under this
Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and
non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return
or destroy all Confidential Information of the disclosing party, upon the termination of this
Agreement or at the request of the other party (subject to applicable law and, with respect to
Company, its internal record-keeping requirements).
7.3 Notwithstanding the foregoing, Confidential Information shall not include any
information to the extent it: (a) is or becomes part of the public domain through no act or omission
on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this
Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third
party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed
pursuant to law, court order, subpoena or governmental authority, provided the receiving party
notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to
contest or limit such required disclosure.
8.1 Disclosure of Your Information. Subject to applicable law, Company and its Affiliates
may, but shall not be required to, provide to you, a Facility, an insurance company and/or relevant
authorities and/or regulatory agencies any information (including personal information (e.g.,
information obtained about you through any background check) and any Company Data) about you
or any Shifts provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident,
between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required,
in Company’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g.,
Company or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it
is necessary, in Company’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property
or security of Company or its Affiliates, the ShiftKey Services, or any third party; (2) to protect the
safety of the public for any reason including the facilitation of insurance claims related to the ShiftKey
Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent
or stop activity which Company or any of its Affiliates, in their sole discretion, may consider to be, or
to pose a risk of being, an illegal, unethical, or legally actionable activity); or (e) it is required or
necessary, in Company’s or any Affiliate’s sole discretion, for insurance or other purposes related to
your ability to qualify, or remain qualified, to use the ShiftKey Services. You understand that
Company may retain your personal data for legal, regulatory, safety and other necessary purposes
after this Agreement is terminated.
8.2 Background Checks. ShiftKey uses a third party service provider to perform
background screening of Providers. You acknowledge and agree that we may share any information
you provide us with third party background check service providers so that we may obtain a full and
accurate background screening. Submitting the Provider Consent to Background Check form is
material to this Agreement and you may be denied use of the ShiftKey Services if the form is not
8.3 Company and its Affiliates may collect your personal data during the course of your
application for, and use of, the ShiftKey Services, or may obtain information about you from third
parties. Such information may be stored, processed, transferred, and accessed by Company and its
Affiliates, third parties, and service providers for business purposes, including for marketing, lead
generation, service development and improvement, analytics, industry and market research, and
such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You
expressly consent to such use of personal data.
9.1 You agree to maintain during the term of this Agreement workers’ compensation
insurance as required by all applicable laws in the Territory.
9.2 Company may maintain during the term of this Agreement insurance related to your
provision of Shifts as determined by Company in its reasonable discretion, provided that Company
and its Affiliates are not required to provide you with any specific insurance coverage for any loss to
you. You are required to promptly notify Company of any accidents that occur while performing
Shifts and to cooperate and provide all necessary information related thereto.
10. Representations and Warranties; Disclaimers
10.1 By You. You hereby represent and warrant that: (a) you have full power and authority
to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into,
and during the term will not enter into, any agreement that would prevent you from complying with
this Agreement; (c) you are a trained healthcare provider in the practice of healthcare; (d) you are
capable of performing the services required by the Shifts you choose to accept; and (e) you will
comply with all applicable laws in your performance of this Agreement, including holding and
complying with all permits, licenses, registrations and other governmental authorizations necessary
to perform (i) Shifts pursuant to this Agreement, and (ii) Healthcare Services to third parties in the
10.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU
ACCEPT, THE SHIFTKEY SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS
AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF
THE SHIFTKEY SERVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN
ANY REQUESTS FOR HEALTHCARE SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN
ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO
REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE
FACILITIES WHO MAY REQUEST OR RECEIVE HEALTHCARE SERVICES FROM YOU, AND COMPANY
AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE FACILITIES. BY USING THE
SHIFTKEY SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A
THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE
ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD
PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SHIFTKEY SERVICES.
NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT
OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET
FORTH IN SECTION 4 ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY
FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
10.3 No Service Guarantee. COMPANY AND ITS AFFILIATES DO NOT GUARANTEE THE
AVAILABILITY OR UPTIME OF THE SHIFTKEY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT
THE SHIFTKEY SERVICES MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE
TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE SHIFTKEY SERVICES MAY
BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE
INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY AND ITS AFFILIATES ARE NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR
LOSSES RESULTING FROM SUCH PROBLEMS.
YOU SHALL INDEMNIFY, DEFEND (AT COMPANY’S OPTION) AND HOLD HARMLESS COMPANY AND
ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES
(INCLUDING LEGAL FEES), DAMAGES, PENALTIES, FINES, SOCIAL SECURITY CONTRIBUTIONS AND
TAXES ARISING OUT OF OR RELATED TO YOUR BREACH OF YOUR REPRESENTATIONS,
WARRANTIES OR OBLIGATIONS UNDER THIS AGREEMENT. AS AN INDEPENDENT CONTRACTOR,
YOU ARE RESPONSIBLE FOR YOUR OWN MEDICAL DECISIONS AND ACTIONS AND HEREBY
INDEMNIFY SHIFTKEY AND SHALL HOLD SHIFTKEY HARMLESS FOR ANY LOSSES, DAMAGES,
LIABILITIES AND EXPENSES ("CLAIMS") THAT ARE INCURRED BY SHIFTKEY ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF YOUR RENDERING OR FAILING TO RENDER HEALTHCARE
SERVICES IN ACCORDING WITH YOUR LICENSE OR CERTIFICATION DURING THE TERM OF THIS
AGREEMENT, INCLUDING CLAIMS THAT SHIFTKEY’S NEGLIGENCE, IN WHOLE OR IN PART, CAUSED
This indemnification provision shall not apply to your breach of any representations regarding your
status as an independent contractor.
12. Limits of Liability
COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT
FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL
THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY
INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES
OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR
INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC
ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT
TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN
THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF
COMPANY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES
ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
13. Term and Termination
13.1 Term. This Agreement shall commence on the date accepted by you and shall
continue until terminated as set forth herein.
13.2 Termination. Either party may terminate this Agreement with or without cause at any
time upon prior written notice to the other party. Further, Company may terminate this Agreement
or deactivate your ShiftKey account immediately, without notice, with respect to you in the event you
no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to
provide Healthcare Services, or as otherwise set forth in this Agreement.
13.3 Effect of Termination. Upon termination of the Agreement, you shall immediately
delete your ShiftKey account. Outstanding payment obligations and Sections 1, 2.4, 2.6.3, 4.11, 4.12,
6.3, 7, 8, 10, 11, 12, 13.3, 14, 15 and 16 shall survive the termination of this Agreement.
14. Relationship of the Parties
14.1 Except as otherwise expressly provided herein with respect to Company acting as the
limited payment collection agent solely for the purpose of collecting payment from Facilities on your
behalf, the relationship between the parties under this Agreement is solely that of independent
contracting parties. A Provider may independently determine the Shifts that the Provider is willing
to accept and the rate at which the Provider will be paid. The parties expressly agree that: (a) this
Agreement is not an employment agreement, nor does it create an employment relationship, between
Company and you; and (b) no joint venture, partnership, or agency relationship exists between
Company and you.
14.2 You have no authority to bind Company or its Affiliates and you undertake not to hold
yourself out as an employee, agent or authorized representative of Company or its Affiliates. Where,
by implication of mandatory law or otherwise, you may be deemed an agent or representative of
Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company
and its Affiliates harmless from and against any claims by any person or entity based on such implied
agency or representative relationship.
14.3 You acknowledge and agree that ShiftKey does not have the right to direct or control
the manner in which you provide healthcare services and that ShiftKey does not direct your
professional services in any manner, including the time, place, type of healthcare services, working
conditions, quality of service, or your right to utilize or hire assistants.
15. Miscellaneous Terms
15.1 Non-Discrimination. ShiftKey does not discriminate on the basis of sex, color, race,
creed, religion, sexual preference, or belief. Providers able to demonstrate adequate experience,
skills, credentials, references and pass a 10-panel drug screen and background check are all
considered for contract assignments.
15.2 Modification. In the event Company modifies the terms and conditions of this
Agreement, or any Supplemental Terms (as further defined below), at any time, such modifications
shall be binding on you only upon your acceptance of the modified Agreement. Continued use of the
ShiftKey Services after any such changes shall constitute your acceptance of such changes. Unless
changes are made to the arbitration provisions herein, you acknowledge and agree that modification
of this Agreement does not create a renewed opportunity to opt out of arbitration. We will notify you
of any changes by posting the updated Agreement on the Site or by email to the email affiliated with
your account. Updated versions of the Agreement will never apply retroactively and the updated
Agreement will give the exact date they go into effect. Significant changes will go into effect no less
than 30 days after we notify you.
15.3 Supplemental Terms. Supplemental terms may apply to your use of the ShiftKey
Services, such as use policies or terms related to certain features and functionality, which may be
modified from time to time (“Supplemental Terms”). You may be presented with certain
Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed
a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a
15.4 Severability. If any provision of this Agreement is or becomes invalid or non-binding,
the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace
the invalid or non-binding provision with provisions that are valid and binding and that have, to the
greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents
and purpose of this Agreement.
15.5 Assignment. This Agreement is personal to you, and is not assignable or transferable
by you except with Company’s prior written consent. Any assignment in violation of this section shall
be null and void. Company may assign, transfer, or delegate this Agreement or any or all of its rights
or obligations under this Agreement without consent.
15.6 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the
entire agreement and understanding of the parties with respect to its subject matter and replaces
and supersedes all prior or contemporaneous agreements or undertakings regarding such subject
matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.”
The recitals form a part of this Agreement.
15.7 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement,
except as expressly set forth in the Arbitration Provision in Section 16.3. Nothing contained in this
Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
15.8 Notices. Any notice delivered by Company to you under this Agreement will be
delivered by email to the email address associated with your account or by posting on the portal
available to you on the ShiftKey Services. Any notice delivered by you to Company under this
Agreement will be delivered by contacting Company at support@ShiftKey.com or by mail to ShiftKey
LLC, Attn: Provider Support, 4228 N. Central Expressway, Suite 220, Dallas, TX 75206.
15.9 State Specific Terms. There may be additional state specific rights and obligations
relating to the provision of the ShiftKey Services. Such rights and obligations shall supersede any
terms to the contrary otherwise contained in this Agreement.
16. Governing Law
The interpretation of this Agreement shall be governed by Texas law, without regard to the
choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of
action arising out of or in connection with this Agreement or the ShiftKey Services shall be subject to
the exclusive jurisdiction of the state and federal courts located in the City and County of Dallas,
Texas. However, neither the choice of law provision regarding the interpretation of this Agreement
nor the forum selection provision is intended to create any other substantive right to non-Texans to
assert claims under Texas law whether that be by statute, common law, or otherwise. These
provisions are only intended to specify the use of Texas law to interpret this Agreement and the
forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted
as generally extending Texas law to you if you do not otherwise reside or provide services in Texas.
If you have any questions regarding these Terms, please contact us at support@ShiftKey.com or by
mail at the address below:
Attention: ShiftKey Provider Support
4228 N. Central Expressway, Suite 220
Dallas, TX 75206
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THIS AGREEMENT AND
ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.