Agency Marketplace Terms and Conditions

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Agency Marketplace Terms and Conditions

Last Updated – 7/24/23

ACCUSHIELD MARKETPLACE

STAFFING AGENCY TERMS OF USE

 

PLEASE READ CAREFULLY ALL THE TERMS AND CONDITIONS OF THESE STAFFING AGENCY TERMS OF USE (THESE “TERMS”) FOR THE ACCUSHIELD MARKETPLACE (THE “PLATFORM”) AND THE PRIVACY POLICY. YOU HEREBY CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE STAFFING AGENCY REFERENCED IN THE INFORMATION YOU PROVIDED DURING THE REGISTRATION PROCESS (THE “AGENCY” OR, HEREAFTER, “YOU”). BY CLICKING THE “AGREE” BUTTON BELOW, YOU ACCEPT THE TERMS AND CONDITIONS OF THESE TERMS ON BEHALF OF THE AGENCY. THESE TERMS FORM A LEGALLY BINDING AGREEMENT BETWEEN THE AGENCY AND ACCUSHIELD, LLC (“ACCUSHIELD”). IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MUST NOT ACCESS OR USE THE PLATFORM.

ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST ACCUSHIELD. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, AGENCY AND ACCUSHIELD AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND THE AGENCY WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

  1. GENERAL TERMS
    • These Terms govern use of the Platform by the Agency and all of its Users for so long as any of them are accessing or using the Platform, including by maintaining an Account, any User Login, or any Staff Profiles.
    • Accushield will collect some personal and/or business information from the Agency to create an Account and grant each User a Login. All personal and/or business information collected, used or disclosed while using the Platform is governed by Applicable Law and Accushield’s Privacy Policy (“Privacy Policy”), which is located at www.accushield.com/privacy-policy/ and which is incorporated by reference into these Terms. By using the Platform, the Agency agrees to Accushield’s use, collection and disclosure of personal and business identifiable information in accordance with the Privacy Policy. The rights and obligations of the parties under the Privacy Policy will survive any termination of the Agency’s use of the Platform.
    • Should the Agency believe that any material on the Platform is inaccurate, the Agency should forward a copy of the material to Accushield at marketplace@Accushield.com, along with an explanation of the Agency’s objection.
    • If you are an owner of intellectual property who believes your intellectual property has been improperly posted or distributed via the Platform, please notify Accushield by sending an email to info@accushield.com.
  2. THE PLATFORM
    • About the Platform. The Platform is a remotely hosted, software-based service that permits a senior living, skilled nursing, or other facility (the “Facility”) to view the Casual Staff who are available and qualified to provide certain Services. The Platform facilitates the connection of the Facility with the Casual Staff by enabling a streamlined process for the Facility to select and engage Casual Staff to fill open Shift Requests at the Facility. The Platform will provide the Agency the ability to approve, block and view the activities of their Casual Staff on the Platform. Accushield reserves the right, from time to time, to make modifications to the Platform; provided, however, that Accushield shall notify the Agency if Accushield makes any modification that materially diminishes the functionality of the Platform with respect to the Agency’s Account. The Platform (or certain features or functionality thereof) may be made available through an Application via a mobile or tablet device. To use any such Application, the applicable User must have a mobile or tablet device that is compatible with such Application and the User must have a Login associated with the Agency’s Account. For clarity, such access and use of the Platform (or any portions thereof) through an Application will be subject to these Terms.
    • Use of the Platform. Prior to using the Platform, the Agency must appoint an Administrator who shall apply and register for an account (“Account”) and a Login for the Administrator. Once an Administrator applies for, and Accushield approves, the set-up of an Account, a profile is created for the Agency. The Administrator, on behalf of the Agency, then assumes control over creating and managing Login credentials for additional Administrators and Users. The Casual Staff Users can view Shift Requests based on Services that the Agency has approved Casual Staff to be qualified to perform.
    • Casual Staff Profiles. The Agency, through its Users, may create profiles for its Casual Staff on the Platform (each, a “Staff Profile”). The Agency shall ensure that each Staff Profile correctly states all information required by the Platform (including all Registration Information), that such information remains current, and that no such Staff Profile includes any false or misleading information, including with respect to availability, skills, and credentials of the applicable Casual Staff. The Agency acknowledges and agrees that Facilities will be relying on the availability, skills, credentials, and rates set forth in each Staff Profile, and, as between the Agency and Accushield, the Agency shall be solely responsible for any damages or losses incurred by a Facility as a result of untrue, inaccurate, not current or incomplete information set forth in a Staff Profile. Accushield has the right to reject any Staff Profile, and to suspend or terminate the Agency’s entire Account (including the Logins of all of it Users) and refuse any and all current or future use of the Platform (or any portion thereof) by the Agency, if any Staff Profile contains information that is untrue, inaccurate, not current or incomplete. Staff Profiles may be modified or removed at any time; provided, that no such modification to or removal of a Staff Profile will be effective as to any Shift Request properly submitted prior to the time of the modification or removal.
    • Contracting with Facilities.
      • Given the significant risk to both the Agency and the applicable Facility if any Casual Staff of the Agency provide Services without a valid agreement in place between the Agency and the applicable Facility, the Agency shall not permit any of its Casual Staff to fulfill any Shift Request through the Platform unless and until the Agency has entered into an agreement for staffing services (each, a “Staffing Services Agreement”) with the applicable Facility. The Agency acknowledges and agrees that the negotiation, execution, and delivery of a Staffing Services Agreement is the sole responsibility of the Agency and the applicable Facility. Neither Accushield nor the Platform verifies whether a Staffing Services Agreement is in place between the Agency and the applicable Facility when displaying Shift Requests or Staff Profiles on the Platform, and Accushield shall have no responsibility to ensure that a Staffing Services Agreement is in place when any Casual Staff of the Agency fulfill a Shift Request. ACCUSHIELD SHALL HAVE NO LIABILITY WHATSOEVER TO THE AGENCY FOR ANY LOSSES, DAMAGES, LIABILITIES, OR CLAIMS OF ANY KIND ARISING OUT OF THE AGENCY’S PROVISION OF SERVICES.
      • Each Staffing Services Agreement forms a separate agreement from these Terms and will govern all aspects of the Services provided by the Agency’s Casual Staff for the applicable Facility. The Agency shall comply with each Staffing Services Agreement. Accushield assumes no responsibility hereunder for the obligations of the Agency or any Facility in connection with any Staffing Services Agreement, and Accushield hereby disclaims all such responsibility. All Staffing Services Agreements (and all engagements thereunder) will survive any termination of the Agency’s use of the Platform. Each time the Facility engages Casual Staff through the Platform to fulfill a Shift Request, such engagement will be governed by the applicable Staffing Services Agreement, and the Agency shall comply with the terms thereof. The Agency shall not, and shall ensure that its Casual Staff do not, decline any properly submitted Shift Requests, unless the Casual Staff does not have all the qualifications required by the Facility for the position type designated in the applicable Shift Request and such qualifications are not listed in such Casual Staff’s Staff Profile.
  • Form Staffing Services Agreement. Upon the Agency’s written request, Accushield will provide the Agency with a form staffing services agreement that, in Accushield’s experience, includes terms and conditions generally acceptable to Facilities and staffing agencies.  Accushield does not represent or warrant that any Facility will be willing to accept the form staffing services agreement in whole or in part.  The Agency acknowledges and agrees that: (a) Accushield is not engaged in the practice of law or in providing legal services to the Agency or any third party with respect to the use of any form staffing services agreement, (b) no attorney-client relationship exists, by virtue of these Terms, between Accushield and the Agency or Accushield and any third party with respect to any form staffing services agreement, and (c) if the Agency desires to use any form staffing services agreement provided by Accushield, the Agency must make an independent legal analysis of such form staffing services agreement and adopt it as the Agency’s own.
  • Communication Channels. The Platform may include communication channels such as forums, communities or chat areas (“Communication Channels”) designed to enable the Agency to communicate with Casual Staff, Accushield and/or Facilities. All submissions to Communication Channels by any User (other than Accushield) will be deemed to be User Content under these Terms. THE AGENCY WILL BE SOLELY RESPONSIBLE FOR ITS AND ITS USERS’ ACTIVITIES WITHIN THE COMMUNICATION CHANNELS AND UNDER NO CIRCUMSTANCES WILL ACCUSHIELD BE LIABLE FOR ANY ACTIVITY WITHIN THE COMMUNICATION CHANNELS. The Agency agrees that all of its communications within the Communication Channels are public, and the Agency should have no expectation of privacy regarding its use of the Communication Channels.
  1. USER ACCOUNTS AND REGISTRATION
    • Registration Data. In order to establish a Login, each User will be required to provide certain personal and/or business information. Upon registering for a Login, each User (a) must provide accurate, current and complete information as may be prompted through any registration forms on the Platform (“Registration Data”); (b) must maintain the security of their Login; and (c) must maintain and promptly update the Registration Data, and any other information provided to the Platform, and keep it accurate, current and complete; and (d) accepts all risk of unauthorized access to the Registration Data and any other information provided to the Platform that is caused by the negligence, willful misconduct or omission of the Agency. If Accushield believes that any Registration Information provided by a User is untrue, inaccurate, not current or incomplete, Accushield may suspend or terminate the User’s Login and refuse any and all current or future use of the Platform (or any portion thereof) by such User.
    • Verifying Information. In order to apply for and register for an Account and a Login, the Administrator will be required to submit additional information regarding the Agency as prompted by the Platform, including evidence of a business license and proof of insurance (“Verifying Information”). The Agency hereby consents and permits Accushield to send, give and/or present such Verifying Information to Casual Staff and the other Users of the Platform, including Facilities. The Agency also consents to posting or having such information posted on the applicable Agency’s profile that Accushield, Casual Staff and other Users (including Facilities) will have access to and be able to view. If Accushield believes that any Verifying Information provided by the Agency is untrue, inaccurate, not current or incomplete, Accushield may suspend or terminate the Agency’s entire Account (including the Logins of all of it Users) and refuse any and all current or future use of the Platform (or any portion thereof) by the Agency.
    • Account Security. No User may allow other persons or entities to use such User’s Login, and no Agency may allow other persons or entities to use such Agency’s Account. The Agency agrees that it is responsible for any activity under any Logins granted under its Account(s), whether or not the Agency authorized that activity, except to the extent caused by Accushield’s breach of any of its obligations set out in these Terms, or the gross negligence, willful misconduct, or fraud of Accushield. The Agency will immediately notify Accushield of any unauthorized use of any Account or Login.
    • Consent to Communications. By creating an Account and/or Login, the Agency, on behalf of itself and its Users, agrees and consents to receive certain communications from Accushield or Facilities, including notifications, Accushield’s newsletter and/or other promotional emails or advertisements. Specifically, you agree that we may send you and your Users text messages (including SMS and MMS) or emails to any mobile phone number or email address provided when creating an Account or Login. Carriers are not liable for delivered or undelivered messages. Texts may be sent through an automatic telephone dialling system. The Agency and each User can opt-out of non-essential communications.
  2. CASUAL STAFF CREDENTIALS AND AGENCY RESPONSIBILITIES
    • Casual Staff Credentials. The Agency hereby represents, warrants, and guarantees that all information, including all licenses, credentials, approvals, and authorizations, reflected in its Staff Profiles, including the Casual Staff Verifying Information (as defined below), will be, at all times when such information is reflected on the Platform, legal, accurate, complete, and correct. In addition, the Agency shall ensure that its Casual Staff have all the qualifications, licenses, credentials, approvals, immunizations, and authorizations required by the Facility for the position type designated in each Shift Request accepted by such Casual Staff, and that such Casual Staff meet all other personnel requirements of the applicable Staffing Services Agreement. The Agency shall ensure that no Casual Staff accepts any Shift Request or work from any other business organizations or entities which would create an actual or potential conflict of interest.
    • Casual Staff Verifying Information. The Agency shall keep the following information and documentation on file with respect to each Staff Profile that is active on the Platform (collectively, the “Casual Staff Verifying Information”):
  • professional credentials, including a copy of current registration with any applicable licensing authority;
  • current criminal background or police checks;
  • medical clearance information (i.e., TB tests, flu shots);
  • a minimum of two references;
  • a current CPR certificate;
  • for cooks or kitchen workers, a food handling certificate; and
  • and other items required by the applicable Staffing Services Agreement.
    • All Casual Staff Verifying Information shall be maintained by the Agency and provided to Accushield within 24 hours after a written request therefor.
    • The Agency shall ensure that all Casual Staff clock in and clock out for Scheduled Shifts using the Accushield kiosk, if such is located at the applicable Facility. The Agency understands and agrees that each Facility will audit or review any bill received from such Agency for Services based on the hours of such Services/Scheduled Shifts (as recorded in the Accushield kiosk system, if an Accushield kiosk is located at the applicable Facility), and each Facility (at its discretion) may refuse to pay for any Services or portions of Scheduled Shifts not properly recorded in the Accushield system.
  1. FEES AND EXPENSES.
    • Fees. In consideration of the Agency’s access to the Platform, the Agency shall pay Accushield $10 per Scheduled Shift (the “Fees”). The Fees will be automatically deducted by Accushield by ACH or other electronic payment method monthly in arrears, and the Agency shall receive by email monthly a copy of such invoice deduction at least 15 days in advance of such automatic deduction. Accushield reserves the right, at any time, to increase the Fees payable by the Agency hereunder upon at least fifteen (15) days’ advanced written notice. In addition to any other rights and remedies available to Accushield, Accushield may suspend the Agency’s and its Users’ access to the Platform (in whole or in part) if any invoiced amount is thirty (30) days or more overdue.
    • Taxes. The Fees do not include any value added tax, GST, HST, sales and use or any similar taxes. The Agency is responsible for paying all such taxes associated with its use of the Platform, including those that Accushield is legally obligated to collect from the Agency (subject to any valid tax exemption certificate). For clarity, Accushield is solely responsible for taxes assessable against it based on its income, property, and employees.
    • Fees and Expenses under Staffing Services Agreement. As between Accushield and the Agency, the Agency is solely responsible for all expenses and costs incurred by the Agency to comply with each Staffing Services Agreement and for its Casual Staff to provide Services. Accushield will not be responsible for any amounts payable by or to the Agency or any Casual Staff in connection with any Staffing Services Agreement, Shift Request, or Services, including staffing fees, charges, travel expenses, assessments, taxes, penalties, or other liabilities. For audit purposes only, Agency shall send to Accushield at marketplace@accushield.com copies of all invoices for services to Facilities; however, Accushield shall have no responsibility for any payment, billing or service issues between Agency and any Facility.
    • Cancellation of Scheduled Shifts. Any cancellation of a Scheduled Shift by a Facility, the Agency, or any Casual Staff, or any failure of a Casual Staff to arrive for a Scheduled Shift will be governed entirely by the terms and conditions of the Staffing Services Agreement. Accushield makes no representations, warranties, or guarantees that a Facility will not cancel any Scheduled Shift or any Shift Request. No cancellation or failure to fulfill a Shift Request after such Shift Request was accepted will relieve the Agency of its obligation to pay Fees associated with such Shift Request.
    • All rights and obligations of the parties under this Section 5 will survive any termination of the Agency’s use of the Platform.
  2. NON-CIRCUMVENTION.

The Agency shall not, directly or indirectly, contact a Facility outside of the Platform to fulfill any Shift Request available to the Agency or any of its Casual Staff on the Platform, which obligation will survive any termination of the Agency’s use of the Platform.  In addition, the Agency shall not, directly or indirectly, cause, induce or encourage any Facility whose Shift Requests were available to the Agency or any of its Casual Staff on the Platform to terminate or materially reduce its use of the Platform to fulfill Shift Requests, which obligation will survive for twelve (12) months following any termination of the Agency’s use of the Platform.  Repeated attempts to do either of the foregoing may result in termination of the Agency’s access to the Platform.  In addition, Agency understands and agrees that it shall owe Accushield and pay Fees for any such Shift Requests fulfilled outside of the Platform during the above stated non-circumvention periods.

  1. AGENCY INSURANCE REQUIREMENTS
    • Agency Insurance. At all times when any of the Agency’s Casual Staff maintain a Staff Profile with availability to fulfill Shift Requests, the Agency shall maintain insurance with responsible insurers against such risks and in such amounts that could reasonably be expected to be carried by such a service provider acting prudently. Without limiting the generality of the foregoing, the Agency shall obtain and maintain Comprehensive General Liability insurance with a limit of no less than (a) one million dollars ($1,000,000) per occurrence for bodily injury; (b) three million dollars ($3,000,000) in the aggregate for bodily injury; (c) one million dollars ($1,000,000) per occurrence for property damage; and (d) one million dollars ($1,000,000) in the aggregate for property damage. A certificate of insurance evidencing the above coverage will be provided annually to Accushield by the Agency. The Agency shall also maintain coverage under the applicable Workplace Safety & Insurance Board or workers’ compensation board, as required by applicable legislative requirements in the states or province(s) in which the Agency operates.
    • Additional Requirements. A Staffing Services Agreement may contain additional insurance requirements or higher minimum limits. The Agency shall not permit any of its Casual Staff to accept any Shift Requests unless the Agency has met such additional requirements or higher minimum limits.
  2. OWNERSHIP, COPYRIGHT AND TRADEMARKS
    • User Content. Content provided by any Users (including the Agency, Casual Staff, and Facilities) is called “User Content”. User Content is the property of its respective owners (e.g., the User that inputted it). For clarity, User Content includes reviews, communication between Users, Verifying Information, Casual Staff Verifying Information, Staff Profiles and other data uploaded by a User to the Platform. Accushield’s only rights to use the Agency’s User Content are reflected in the limited licenses granted to it in these Terms. Although Accushield has no obligation to do so, Accushield has the absolute discretion to pre-screen, monitor, review, cut, crop, edit, refuse to publish, remove, block, “ghost,” disallow, or delete, without notice, any User Content posted or stored on the Platform, and Accushield may do this at any time and for any reason, provided that it is acting in good faith. Accushield accepts no liability in respect of any User Content published by Users or by third parties. The Agency’s User Content is the Agency’s responsibility. Accushield has no responsibility or liability for it, or for any loss or damage User Content may cause to the Agency or other people, except where attributable to the gross negligence, willful misconduct, or fraud of Accushield. Accushield does not endorse any of the views reflected in any User Content posted on the Platform. User Content submitted to any public area of the Platform will be considered non-confidential. ACCUSHIELD DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, APPROPRIATENESS OR QUALITY OF ANY USER CONTENT OR BIOGRAPHICAL INFORMATION OR OTHER USER INFORMATION ACCOMPANYING SUCH USER CONTENT, AND UNDER NO CIRCUMSTANCES WILL ACCUSHIELD BE LIABLE IN ANY WAY FOR THE SAME.
    • Copyright, Trademarks, and Other Materials. Other than User Content, the Platform, any other Content, and any other software or other technologies used to create and operate the Platform, or made available in connection therewith, is the property of Accushield or its direct and indirect licensors, and is protected by US, Canadian and international copyright laws, and all rights to the Platform, such Content and such software are expressly reserved. All Trademarks displayed in the Platform are the property of their respective owners. Except as explicitly provided in these Terms, you may not distribute, transmit, display, reproduce, modify, create derivative works from, or otherwise exploit any of the Content on the Platform. You may display and occasionally print a single copy of any page on the Platform for your own use, but you may not otherwise reproduce any Content appearing on the Platform without the prior written consent of the owner. You may not store any significant portion of, or distribute copies of, Content found on the Platform, in any form (including electronic means), without prior written permission from the owner. The foregoing restrictions will survive any termination of the Agency’s use of the Platform.
    • Marketing Using the Accushield Trademarks and Name. The Agency is not authorized to use any of the Trademarks of Accushield or any of its licensors.  Accushield may grant a limited license or use to the Agency to use specified Trademarks of Accushield or certain of its licensors for marketing purposes. Such license or use shall be requested and granted in writing only. Such use shall be limited to and not exceed the authority granted by Accushield in the written authorization and shall not extend to other Intellectual Property Rights. The Agency shall cease all use of any Trademarks of Accushield or its licensors upon any termination of the Agency’s use of the Platform.
    • Anonymous Statistical Data. Notwithstanding anything else in this Agreement or otherwise, Accushield may monitor use of the Platform and use data and information related to such use in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Platform, but in each case in a manner that is anonymized and does not identify Agency or its users (“Aggregated Statistics”). Accushield may use or distribute Aggregated Statistics for any purpose, provided that such data and information is anonymized and does not identify Agency or its users.
  3. LICENSE TO USE THE SERVICE, USAGE RESTRICTIONS
    • Right to Access. Subject to the terms and conditions of these Terms, Accushield hereby grants to the Agency a revocable, non-exclusive, non-transferable, non-sublicensable right to use and access the Platform, solely through its authorized Users, to create Staff Profiles, accept Shift Requests, and conduct other activities related thereto that are made available via the Platform for such purposes, in each case, in accordance with the terms and conditions of these Terms. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any license to Intellectual Property Rights, whether by estoppel, implication or otherwise.
    • Usage Restrictions. Other than as expressly permitted under these Terms, the Agency shall not, and the Agency shall ensure that its Users do not:
  • resell, lease or provide access to the Platform or any Shift Requests in any other way to anyone else, except as permitted through the Platform;
  • make or distribute copies of the Platform or any Content on the Platform, including the User Content of other Users;
  • alter, merge or translate the Platform or any Content on the Platform, or decompile, reverse engineer, disassemble, or otherwise reduce the Platform to a human-perceivable form (except as otherwise required by Applicable Laws);
  • modify, reproduce or create derivative works based on the Platform or any Content on the Platform;
  • use the Platform or any Content on the Platform to develop or deploy any application, offering or service having the same or similar primary function as the Platform;
  • remove or modify any copyright, trademark or other proprietary notices that have been placed in the Platform or any Content on the Platform;
  • otherwise use the Platform or any other materials made available through the Platform other than for its or their intended purposes;
  • impersonate any person or entity;
  • stalk, threaten, or otherwise harass any person or entity;
  • use any portion of any User Content without the prior written permission of its owner;
  • act, or provide, in any manner and/or post, upload to, transmit, distribute, store, create or otherwise publish through the Platform any message, data, information, text, music, sound, photos, graphics, code or other material, that (i) is unlawful, libelous, defamatory, obscene, harassing, racist, prejudiced, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable in the sole opinion of Accushield; (ii) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or that would otherwise create liability or violate any Applicable Law; (iii) is intended to advertise the services of another person or entity; (iv) includes private information of any third-party, unless that third-party has expressly consented to such use; or (v) contains viruses, corrupted data or other harmful, disruptive or destructive files;
  • index, scrape “data mine”, survey or in any way reproduce or circumvent the navigational structure or presentation of the Platform;
  • link directly or indirectly to any other websites, applications or services from any User Content uploaded by the Agency or any of its Users; or
  • transfer or sell any Account, Login, password and/or identification to any other party.

9.3               Any unauthorized use of the Platform or any materials provided through the Platform may also violate Applicable Laws, including without limitation copyright and trademark laws. ACCUSHJIELD RESERVES THE RIGHT TO SUSPEND AND/OR TERMINATE AGENCY’S USE OF THE PLATFORM (IN WHOLE OR IN PART) AT ANY TIME WITHOUT PRIOR NOTICE, WITH OR WITHOUT CAUSE, AND WITHOUT ANY RIGHT OF REFUND, SET-OFF, OR HEARING. Accushield further reserve the right, at any time and without prior notice, with or without cause, to remove or disable access to content at our discretion for any reason or no reason. Any termination of the Agency’s use of the Platform terminates all rights and licenses granted to the Agency and its Users hereunder. The usage restrictions above will survive any termination of the Agency’s use of the Platform.

  1. LIMITED LICENSES TO ACCUSHIELD

10.1            By posting or distributing any User Content to or through the Platform, the Agency, on behalf of itself and its Users, (a) hereby irrevocably grants Accushield and its affiliates and subsidiaries, and its and their respective personnel, contractors, licensors, and representatives, a non-exclusive, royalty-free, transferable, sub-licensable, worldwide right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate and create derivative works from such User Content, and otherwise use any and all of such User Content in the manner and for the purposes which the Platform from time to time uses such User Content; and (b) represents and warrants that the Agency owns and control all of the rights in and to such User Content, or otherwise has the lawful right, to post and distribute such User Content to or through the Platform and to grant the rights and licenses granted herein.

10.2            Subject to the Privacy Policy, the Agency, on behalf of itself and its Users, hereby grants Accushield and its affiliates and subsidiaries, and its and their respective personnel, contractors, licensors, and representatives, a non-exclusive, royalty-free, transferable, sub-licensable, worldwide right to use, reproduce, modify, disclose, transmit or post any communications (other than User Content), whether verbal or in writing, including data, information, ideas, inventions, concepts, techniques, know-how evaluations, questions, comments, suggestions, or similar, transmitted by the Agency or its Users to Accushield or its affiliates or its or their personnel (“User Submissions”), for any purpose whatsoever, including developing, manufacturing and marketing products using such information, without acknowledgement or compensation to the Agency or any User.

  1. SECURITY OF THE SERVICE

Despite Accushield’s reasonable efforts to support security and availability, the internet is an inherently insecure medium, and the reliability of hosting services, internet intermediaries, internet service providers, and other service providers cannot be assured. Therefore, when the Agency uses the Platform, it accepts these risks and the responsibility for choosing to use a technology that cannot guarantee complete security and reliability.

  1. THIRD-PARTY MATERIALS AND SERVICE PROVIDERS; LINKED SITES
    • Third-Party Software and/or Open Source Software. The Platform may contain and/or may connect to third-party software and/or open source software, which may be subject to third-party licenses and require notices and/or additional terms and conditions (“Third-Party Licenses”). These Third-Party Licenses are made a part of and incorporated into these Terms. By accepting these Terms, the Agency is also accepting the Third-Party Licenses, if any. The Agency and Accushield hereby agree that nothing in the Third-Party Licenses shall, in any way, alter these Terms or the Agency’s or Accushield’s obligations hereunder. ACCUSHIELD IS NOT RESPONSIBLE OR LIABLE TO THE AGENCY OR ANY OTHER PARTY FOR ANY THIRD PARTY SOFTWARE OR ANY USE THEREOF BY THE AGENCY OR ANY USER.
    • Third-Party Service Providers. In the course of using an Account or the Platform, the Agency may be required or, by the Agency’s actions, may be deemed, to consent to the terms of agreements provided by certain third-party service providers, including but not limited to, payment processors, credit card companies and banks. The Agency agrees that nothing in those agreements shall, in any way, alter the terms and conditions of these Terms or the Agency obligations hereunder. ACCUSHIELD IS NOT RESPONSIBLE OR LIABLE TO THE AGENCY OR ANY OTHER PARTY FOR ANY ACTS OR OMISSIONS OF ANY THIRD PARTY SERVICE PROVIDER OR ANY USE BY THE AGENCY OR ANY USER OF SERVICES PROVIDED BY ANY THIRD PARTY SERVICE PROVIDER.
    • Linked Sites. Accushield or other Users may, within the Platform or otherwise, make available a variety of links to other websites or applications where the Agency may, among other things, obtain related products and services (the “Linked Sites”). Whether or not Accushield is affiliated with a Linked Site, Accushield is not responsible for its content. The Linked Sites are for the Agency’s convenience only and the Agency may access them at its own risk. Linked Sites are not an endorsement and Accushield does not represent or warrant the accuracy or truth of the contents or information found on said Linked Sites.
  2. INDEMNIFICATION.

13.1            The Agency shall defend, indemnify, protect and hold harmless Accushield, its affiliates, and each of their respective directors, officers, employees, licensors, agents, successors and assigns from and against any and all losses, damages, liabilities, judgments, costs, and expenses (including reasonable attorneys’ fees) incurred by any of them in connection with any demands, causes of action, claims or suits of any kind asserted or brought by a third party, in each case, to the extent arising out of or resulting from (a) use of or access to the Platform by the Agency or any of its Users, including any Staff Profile or other User Content of the Agency or its Users; (b) provision of Services by the Casual Staff of the Agency; (c) any Staffing Services Agreement, including as a result of any breach thereof by the Agency or any Casual Staff; (d) any other misrepresentation, negligent act or omission, willful misconduct, or violation of Applicable Law of or by the Agency, its Users, Casual Staff, other personnel or approved subcontractors, (e) the breach of any warranty, covenant, or obligation contained in these Terms by the Agency or its personnel or any approved subcontractors of the Agency, (f) any claim that any User Content, User Submissions, or other materials provided by or through the Agency or its Users to the Platform or to Accushield infringes, misappropriates, or otherwise violates any third party right, including any Intellectual Property Right or other proprietary rights, or any privacy right, or (g) any and all claims with respect to the Agency’s consent to receive advertising offers and other communications from Accushield, in each case, except to the extent that such demand, cause of action, claim or suit gives rise to an obligation for Accushield to indemnify the Agency under Section 13.2 below.

13.2            Accushield shall defend, indemnify, protect and hold harmless the Agency, its affiliates, and each of their respective directors, officers, employees, licensors, agents, successors and assigns from and against any and all losses, damages, liabilities, judgments, costs, and expenses (including reasonable attorneys’ fees) incurred by any of the in connection with any demands, causes of action, claims or suits of any kind asserted or brought by a third party, in each case, to the extent arising out of or resulting from (a) an allegation that Agency’s use of the Platform in accordance with these Terms infringes or misappropriates such third party’s United States patent, copyright, or trademark rights; or (b) the breach of any warranty, covenant, or obligation contained in these Terms by Accushield or its personnel or any approved subcontractors of Accushield. Notwithstanding the foregoing, Accushield shall have no obligation under these Terms for any claim arising from any infringement or misappropriation (or alleged infringement or misappropriation) resulting from or caused by (i) access to or use of the Platform or any Content in combination with any products, service, hardware, system, software, network, business process(es), or other materials or service not provided by Accushield or specified for the Agency’s use in any documentation or these Terms, (b) third party software, third party providers, or Linked Sites, (c) User Content, User Submissions, or other materials provided by or through the Agency or its Users to the Platform or to Accushield, (d) any modification of the Platform or Content made without Accushield’s specific written approval, (e) failure to timely implement any modifications to the Platform made available to the Agency by or on behalf of Accushield, or (g) any misuse of the Platform or Content.

13.3            The obligations contained in this Section 13 will survive any termination of the Agency’s use of the Platform.

  1. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
    • IF YOU RELY ON THE PLATFORM OR ANY CONTENT AVAILABLE THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION, ANY USER CONTENT OR SHIFT REQUEST, YOU DO SO AT YOUR OWN RISK. YOU UNDERSTAND THAT THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, INACCURACIES, AND/OR OTHER PROBLEMS WITH THE CONTENT PUBLISHED OVER THE PLATFORM. YOU ALSO UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS YOU MAY INCUR THAT RESULTS FROM YOUR USE OF ANY SERVICE OR ANY CONTENT DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH THE PLATFORM.
    • THE PLATFORM IS PROVIDED TO YOU “AS IS.” ACCUSHIELD AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF TEH PLATFORM OR THE CONTENT AVAILABLE THROUGH THE PLATFORM (OR ANY INFORMATION, GOODS OR SERVICES THAT ARE REFERRED TO, ADVERTISED OR PROMOTED ON, OR SOLD THROUGH THE PLATFORM). NOR DO WE OR THEY GUARANTEE THAT THE PLATFORM WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THESE LIMITATIONS MAY NOT APPLY TO THE AGENCY.
    • UNDER NO CIRCUMSTANCES WILL ACCUSHIELD OR ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO THE AGENCY OR ANYONE ELSE FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES ARISING OUT OF THE AGENCY’S USE OF THE PLATFORM OR ANY PRODUCT OR SERVICE PROMOTED OR ADVERTISED OR ACCESSIBLE THROUGH LINKED SITES ON THE PLATFORM, INCLUDING CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA OR DIMINUTION IN VALUE), EVEN IF ACCUSHIELD OR ITS AFFILIATES, AGENTS OR LICENSORS ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. THE AGENCY AGREES THAT THE LIABILITY OF ACCUSHIELD AND ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM ARISING OUT OF OR OTHERWISE RELATED TO THE PLATFORM WILL NOT EXCEED THE AMOUNT THE AGENCY PAID, IF ANY, FOR THE USE OF THE PLATFORM OUT OF WHICH SUCH LIABILITY ALLEGEDLY ARISES IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    • In no event may you bring any claim or cause of action under these Terms more than one (1) year after such claim or cause of action arises.
    • The limitations contained in this Section 14 will survive any termination of the Agency’s use of the Platform.
    • During the course of the Agency’s use of the Platform, the Agency and Accushield, and their respective employees, consultants, and representatives (“Representatives”), may be exposed to, receive, or otherwise learn information of the other party which is known to be confidential or, through reasonable care, should have been known to be confidential (“Confidential Information”). For clarity, the terms of these Terms and the Fees are the Confidential Information of Accushield.
    • The Agency and Accushield shall each, and shall cause its respective Representatives to, hold all Confidential Information in trust and confidence; shall safeguard the Confidential Information with security measures reasonable under the circumstances, given the nature of the Confidential Information; shall use such Confidential Information only for performance of its obligations or exercise of its rights under these Terms; and shall disclose the Confidential Information only to those of its affiliates, Representatives and attorneys, accountants, and financial advisors who have a need to know in order to perform its obligations or exercise its rights under these Terms. Further, Accushield shall be entitled to disclose these Terms to third parties who have been informed of the confidentiality obligations of these Terms and agree to be bound by the terms of a confidentiality agreement entered into with Accushield.
    • Nevertheless, the restrictions of Section 15.2 shall not apply to information that: is or becomes public through no wrongful act or omission of the receiving party, was known to receiving party prior to disclosure or discovery hereunder; is independently developed by receiving party without reference to the Confidential Information; is rightfully obtained from a third party lawfully in possession of the Confidential Information and not under a confidentiality obligation; or is required to be disclosed by a court or other governmental order or decree, provided that receiving party furnishes prompt notice of the matter involving such order or decree (to the extent permitted by law) and cooperates with disclosing party in opposing or limiting such compelled disclosure. Notwithstanding the foregoing, this Section 15.3 does not apply to any Registration Data and Verifying Information, which shall at all times be Confidential Information of the Agency.
    • Accushield agrees to use appropriate security measures to protect the Agency’s User and Casual Staff personal information from unauthorized access, destruction, use, modifications or disclosure in accordance with all applicable federal and state privacy laws.
    • The rights and obligations of the parties under this Section 15 will survive any termination of the Agency’s use of the Platform.
    • Non-Exclusivity. Nothing in these Terms is intended or shall be construed as creating any exclusive arrangement between Accushield and the Agency. These Terms shall not restrict Accushield from providing the Platform or any similar, equal or like services to other entities or persons.
    • Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Georgia in the United States.
    • When any Account is terminated, any User Content uploaded to the Platform may remain on the Platform or in related backup systems. The license and rights the Agency has granted to Accushield in Section 10 therefore survive such termination. Any terms and conditions of these Terms which by their nature extend beyond termination of an Account shall survive such termination, including those expressly designated herein as surviving such termination.
    • Dispute Resolution.
  • The parties hereby irrevocably and unconditionally agree that any controversy or claim between the parties arising out of or relating to the Platform, to these Terms, to the Privacy Policy, to our advertising or solicitation practices or to Shift Requests you fulfill through the Platform that is not resolved through good faith negotiation will be settled solely by final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator and the place of arbitration shall be Cobb County, Georgia. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and will be governed and enforced under the Federal Arbitration Act, 9 U.S.C. § 1-16 (“FAA”). Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, the prevailing party shall be entitled to an award of reasonable attorney fees. To the greatest extent permissible under Applicable Law, the arbitrator will be bound by and will strictly enforce these Terms, including any limitations of liability contained herein, and may not limit, expand or otherwise modify any of the provisions of the foregoing.
  • CLASS ACTION WAIVER. ANY ARBITRATION PROCEEDING UNDER THIS SECTION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED AND YOU EXPRESSLY WAIVE YOUR ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST ACCUSHIELD OR ITS AFFILIATES. IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO YOUR DISPUTE WITH ACCUSHIELD, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. YOU AGREE THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT TO ARBITRATE AND THAT IT MAY NOT BE SEVERED. IN THE EVENT THAT THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE IN THIS SECTION WILL BE NULL AND VOID.
  • Notwithstanding anything contained in these Terms to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
    • Force Majeure. Accushield shall not be liable for its failure, delay, or hindrance in performing any of its obligations hereunder to the extent such failure, delay, or hindrance is attributable to a Force Majeure Event. Accushield will promptly notify the Agency of such failure, delay, or hindrance and shall use commercially reasonable efforts to limit the effect of such event or circumstance on the performance of its obligations. “Force Majeure Event” means any circumstance or cause beyond a party’s reasonable control and not caused by such party, its agents or employees, including, without limitation, (a) acts of God, (b) flood, fire, earthquake, severe weather event, explosion, accident, epidemic, quarantine or other natural or man‑made disaster, (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, sabotage, riot, national or regional emergencies or other civil disturbances, (d) acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), embargoes or blockades, (e) strikes, lockouts, labor stoppages or slowdowns or other industrial disturbances, and (f) outage or shortage of adequate power, telecommunications, internet, supplies, raw materials, fuel, infrastructure or transportation..
    • Independent Contractor. Nothing contained in these Terms shall create an employer and employee relationship, a master and servant relationship, or a principal and agent relationship between the Agency, Casual Staff any Agency employee(s), on the one hand, and Accushield or its affiliates or licensors, on the other hand. Accushield and the Agency agree that Agency and Accushield are and shall remain independent contractors.
    • Notices.
  • Except as otherwise required by these Terms, Accushield may give any notice required by these Terms by means of a general notice on the Platform or via email to the Agency’s email address on record in Accushield’s account information. Notices provided via email will be deemed given and received on the transmission date of the email. It is the Agency’s responsibility to periodically review the Platform for notices. Notwithstanding the foregoing, Accushield shall provide the Agency with notice in writing, by certified mail or overnight courier, return receipt requested, at the address on record in Accushield’s account information, with respect to any request for indemnification, notice of dispute, or notice of breach.
  • The Agency may give any notice required by these Terms by any of the following means, and, in each case, such notice shall be deemed given when received by Accushield: (a) email with receipt notification to lever.stewart@accushield.com (for other communication that does not involve notices required by these Terms, the Agency may use info@accushield.com or such other email specified by Accushield), or (b) notice in writing, by certified mail or overnight courier, return receipt requested, to Accushield at the following address:

Accushield, LLC.

2030 Powers Ferry Rd

Suite 360

Atlanta, GA 30339 USA

Attention: Lever Stewart, COO

lever.stewart@accushield.com

 

  • Each party may change its particulars respecting notice by issuing notice to the other party in the manner described in these Terms.
    • Amendment. Accushield reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify these Terms or its Privacy Policy and to impose new or additional rules, policies, terms, or conditions on the Agency’s use of the Platform. Accushield will communicate changes to these Terms by posting the new version on the Platform or its website here, or as otherwise determined by Accushield in its sole discretion, at which time such updated Terms will be immediately effective. The Agency is responsible for regularly reviewing these Terms and the Privacy Policy. The Agency’s continued use of the Platform after such notification of changes to these Terms, or after notification of increased Fees in accordance with Section 1, will constitute the Agency’s acceptance of any and all such changes. Notwithstanding the foregoing, Accushield will notify the Agency of any material changes to these Terms no less than fifteen (15) days prior to such changes taking effect.
    • Assignment and Subcontracting. These Terms shall inure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Agency may not assign its rights or delegate its obligations under these Terms, in whole or in part, without the prior written consent of Accushield, which consent shall not be unreasonably delayed or withheld. Accushield may assign any of its rights or delegate its obligations under these Terms, in whole or in part, to any affiliate or to any person acquiring all or substantially all of Accushield’s assets without the Agency’s consent. Accushield may hire or engage one or more subcontractors or other independent contractors, in locations both inside and outside of the United States, to perform any or all of its obligations under these Terms, including operation of the Platform. Such persons may have access to the Agency’s User Content in providing services to Facilities, and/or providing the Agency with access to the Platform. Any such access from outside the United States may make the Agency’s personal and/or business information the subject of foreign laws and foreign legal proceedings; provided, that no such information will be disclosed in connection with foreign legal proceedings or otherwise unless required by law, and prior to any required disclosure, Accushield will provide notice to the Agency unless it is prohibited by law from doing so. Accushield shall remain responsible for the acts and omissions of its subcontractors, independent contractors and other third party providers to the same extent that Accushield is liable for its own acts or omissions hereunder.
    • Third Party Beneficiaries. Except as specified in these Terms, these Terms do not create any obligations of, or any rights, causes of action, or benefits, in favor of any person or entity other than the Agency and its applicable affiliates (and their respective successors and permitted assigns) and Accushield and its applicable affiliates (and their respective successors and permitted assigns). Notwithstanding the foregoing, the Agency acknowledges and agrees that each applicable Facility is and shall be deemed for purposes of Sections 3, 2.4, 3.1, 3.2, 4.1, 4.4, and 7.2 to be an intended third party beneficiary of these Terms, with the right to independently enforce such provisions of these Terms against Agency to the extent that any such Facility has or may suffer harm or damage as a result of any breach or violation of such provision of these Terms.
    • Severability. Any provision of these Terms which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms, all without affecting the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction. Such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s).
    • Entire Agreement. these Terms, any documents incorporated herein, and the Fees constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
    • Waiver. No term or provision of these Terms is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
    • Interpretation. The headings used in these Terms and elsewhere in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. The parties agree that the terms and conditions of these Terms are the result of negotiations between the parties and that these Terms will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms. For purposes of these Terms, unless the context requires otherwise: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”, and (b) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms as a whole.

17.               DEFINITIONS

The following capitalized terms will have the following definitions under these Terms:

  • “Administrator” means a primary User of an Account with authority to designate additional Administrators and/or Users to access such Account and use the Platform.
  • “Aggregated Statistics” means anonymized Platform performance and usage data that does not identify the Agency or its users.
  • “Application” means Accushield’s iOS and Android applications that allow the Casual Staff to access and use the Platform.
  • “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations of all applicable government authorities, agencies, bodies or departments, having jurisdiction over the Agency’s use of the Platform.
  • “Services” means nursing, personal support, and other healthcare or non-healthcare related services that are provided by Casual Staff.
  • “Casual Staff” means active employees or contractors of the Agency that are in good standing and have been assigned by the Agency and for whom Staff Profiles are maintained on the Platform.
  • “Content” means the content available on, processed by, or generated by the use of the Platform, whether or not made available to the Agency or provided by the Agency, including all User Content, information, data, usage and performance data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement.
  • “Intellectual Property Rights” means worldwide, common law and statutory rights, laws of equity or any other governing form of law associated with (a) patentable inventions, patents and patent applications, divisions, continuations, renewals, reissuance and extensions, thereof, (b) copyrights, copyright applications and copyright registrations, “moral” rights and mask work rights, (c) the protection of trade and industrial secrets and confidential information, and (d) trademarks, trade names, service marks, and logos (collectively “Trademarks”).
  • “Login” means a unique login established by each (a) Administrator upon the approval and authorization of Accushield; and (b) User upon the approval and authorization of an Administrator, for a specific Account, so that the User can access such Account and use the Platform.
  • “Scheduled Shift” means a Shift Request from a Facility that has been accepted by or on behalf of Casual Staff through the Platform.
  • “Shift Request” means a request by a Facility for Services that has been submitted through the Platform and is made available for Casual Staff to accept under these Terms.
  • “User” means an Administrator(s) and other individual(s), approved and authorized by each Administrator to apply for, access and use an Account, through a Login, and use the Platform on the Agency’s behalf.

 

 

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