Terms and Conditions of Use of Openshift Site and Services

1. User Age and Access

By submitting information through the Site you represent that you are a United States resident over the age of 18.

2. License

The Site, including all of its contents, such as text, images and the HTML used to generate the pages (“Materials”), is our property or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from the Site in whole or in part, for any public or commercial purpose, without the specific written permission of Openshift. We grant you a personal, non-exclusive, non-transferable license to access our Site and to use the information contained here. In turn, you grant us a non-exclusive, royalty-free license to use any content you post on the Site for any purpose, subject to the express terms of these Site Use Terms.

3. Rules and Limits on and Modifications to the Site

We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.

• Posting any information that is incomplete, false, inaccurate or not your own, such as creating a fictional account;
• Impersonating another person, such as creating an account for a person other than yourself;
• Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or that fails to comply with accepted Internet protocol;
• Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
• Posting material that infringes on any other intellectual property, privacy or publicity right of another;
• Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
• Transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of United States export control laws; and
• Attempting to interfere in any way with the Site’s or Openshift’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system.

• Accessing data not intended for you or logging into a server or account that you are not authorized to access;
• Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
• Attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “mailbombing,” or “crashing,” or sending unsolicited e-mail, including promotions and/or advertising of products or services; or
• Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

4. Privacy Policy; User Information

In the course of your use of the Site, you may be asked to provide certain information to us. Openshift’s use of any information you provide via the Site shall be governed by our Privacy Policy available here. We urge you to read our Privacy Policy. You acknowledge and agree that you are solely responsible for the accuracy and content of such information.

5. International Use

We control and operate the Site from our offices in the United States, and all information is processed within the United States. We do not represent that Materials on the Site are appropriate or available for use in other locations. Users who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

6. Proprietary Rights

As between you and Openshift, (or other company whose marks appear on the Site), Openshift (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.

Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or Materials you may access on the Site and you may not modify, rent, lease, lend, sell, distribute or create derivative works of such Content, features or Materials, in whole or in part. No Material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the Site. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise authorized by Openshift. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any User of our trademarks, registered trademarks, service marks, copyrightable material or intellectual property by including them on the Site.

The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law, including copyright law.

Product names, logos, designs, titles, words or phrases may be protected under law as the trademarks, service marks or trade names of Openshift or other entities. Such trademarks, service marks and trade names may be registered in the United States and internationally.

The Openshift logos and service names are trademarks of Openshift (the “Openshift Marks”). Without Openshift’s prior permission, you agree not to display or use the Openshift Marks in any manner. Nothing on the Site should be construed to grant any license or right to use any Openshift Mark without the prior written consent of Openshift.

7. Links from and to the Site

You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by Openshift in any way and Openshift is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Openshift’s endorsement of, or association with, the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall Openshift be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site’s administrator or Webmaster. Openshift reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different Users. Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link and to require termination of any such link to the Site, at our discretion at any time.

8. Representation and Warranty; Indemnity

You represent and warrant to Openshift that any information or materials You post on or transmit through the Site for any purpose will not infringe on the intellectual property rights or violate any other rights of any third party. You agree to defend, indemnify and hold Openshift, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with your use or misuse of the Site, your violation of these Site Use Terms or the posting or transmission of any materials on or through the Site by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right.

9. DISCLAIMER OF WARRANTIES REGARDING SITE

YOU UNDERSTAND AND AGREE THAT:

THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTION AND MATERIALS, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OPENSHIFT DOES NOT WARRANT THAT THE SITE OR THE FUNCTIONALITY, CONTENT OR MATERIALS MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. OPENSHIFT MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE OPERATION OF THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

OPENSHIFT DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SITE. OPENSHIFT IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTIES THAT IS WITHOUT THE DIRECT INVOLVEMENT OF OPENSHIFT.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL OPENSHIFT, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF OPENSHIFT OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF OPENSHIFT TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE SITE USE TERMS OR YOUR ACCESS TO OR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00.

11. Severability; No Waiver

If any provision of these Site Use Terms is held to be contrary to law, such provision shall be deemed valid only to the extent permitted by law, and all other provisions shall continue in full force and effect. Openshift’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall Openshift’s waiver of any breach or default of these Site Use Terms constitute a waiver of any subsequent breach or default.

12. Governing Law

These Site Use Terms are enforceable pursuant to and in accordance with the laws of the State of Delaware. Any dispute arising out of these Site Use Terms shall be decided by a court of competent jurisdiction in New York County, New York.

13. Successors and Assigns; No Assignment

These Site Use Terms shall be binding upon, and shall inure to the benefit of, Openshift and the Users and their respective heirs, legal representatives, successors and assigns.

14. Headings

The subject headings of the sections of these Site Use Terms are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions.

15. Arbitration

Except as prohibited by law, any dispute between Openshift and a User (or between Openshift or a User, on the one hand, and any officer, director, employee or affiliate of Openshift or a User, on the other hand) shall be resolved through binding arbitration in New York County, New York under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent Openshift or a User from filing charges with state or federal agencies. By using the Site, you agree that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and you waive right to bring class-wide, collective or representative claims before any arbitrator or in any forum. YOU UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES YOU ARE WAIVING ANY RIGHT THAT YOU MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of Openshift or a User’s right to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration.

16. Relationship

You agree that no joint venture, partnership, employment, or agency relationship exists between Openshift and you as a result of these Site Use Terms or your use of the Site.

17. Time to Bring Claims

Any claim or cause of action you may have with respect to Openshift or the Site must be commenced within one (1) year after the claim or cause of action arose.

18. Notices

Notices to Users may be made via either email or regular mail. The Site may also provide notices of changes to these Site Use Terms or other matters by displaying notices or links to notices to Users on the Site.

19. Contacting Openshift.

To contact us with any questions or concerns in connection with these Site Use Terms or the Site, or to provide any notice under these Site Use Terms to Openshift, please click the “Contact Us” link in the footer of the home page.

1. Account Registration and Suspension

To accept placements through the Site, Professional shall have registered an account through the Site. Professional shall create an account by (i) entering at least one of several identifiers, including, but not limited to, first and last name; (ii) creating a profile or claiming and verifying the information in a pre-populated profile; and (iii) creating a username and password. The date that Professional creates an account shall be referred to herein as the “Registration Date.” Professional may suspend his or her account at any time using the account settings page or by contacting Openshift using the “Contact Us” link in the footer of the home page provided that Professional has no outstanding employment agreement or order. Openshift may suspend Professional’s account (i) without notice to Professional if at such time Professional is not an employee of Openshift and (ii) with notice to Professional if at such time Professional is an employee of Openshift. If Professional’s account is suspended, such account will no longer appear on the Site as visible to the public, but such suspension will not terminate these Professional Terms or any outstanding employment agreement or order.

Professional hereby acknowledges that (i) Openshift is not collecting, exacting, charging or receiving a fee, in cash or in kind, from Professional for procuring, or attempting to procure, or assisting to procure employment, work or a situation of any kind for Professional; (ii) Openshift may direct Professional to Clients that have requested that they be regularly introduced to Professionals with qualifications like Professional’s and (iii) Openshift may promote Professional to Clients, even if such Clients have not posted job listings for applicants similar to Professional.

Professional hereby acknowledges that they are responsible for all payroll updates and ensuring that Openshift has all such information. Professional is responsible for logging in to the time sheets applications on the Openshift platform, and accept geo-fence clock in and clock out for all work shifts competed for the Clients. The Professional is responsible for verifying the time of each shift as recorded on the Openshift platform, and to notify Openshift within 12 hours of any discrepancies. All discrepancies in the recorded time spent working for the Clients for each day of services, must be reported to Openshift before the close of business on Monday for the following work week (the “Expiration Date”). All Professionals are paid according to these records, and any discrepancies not reported to Openshift by this Expiration Date each week, will not be paid, nor due by Openshift or the Client. Professionals waive any dispute concerning such non-payments, once Payroll for the Client is closed which corresponds to the Expiration Date.

2. Relationship of Professional and Openshift

Professional agrees that no joint venture, partnership, employment, or agency relationship exists between Openshift and Professional simply by virtue of Professional agreeing to abide by these Professional Terms or by Professional’s use of the Site.

3. Professional Representations and Warranties

• Professional represents and warrants to Openshift that the following statements are true as of the Registration Date.
• Professional has never had a license or certification to practice nursing in any state suspended, revoked or restricted;
• Professional has never been reprimanded, sanctioned or disciplined by any licensing board or certifying authority (a “Board”);
• Professional has never been excluded or suspended from participation in, or sanctioned by, any Medicare program, a Medicaid program or any other federal healthcare program as such term is defined at 42 U.S.C. Title 42 § 1320a-7b (the “Government Healthcare Programs”) or other third party payor programs; and
• Professional has never been charged with or convicted of a felony, a misdemeanor involving fraud, dishonesty, controlled substances, or moral turpitude, or any crime relevant to the provision of nursing services or the practice of nursing.
• Professional shall not be subjected to any outside agreement that prohibit them from working with Openshift or any of the Clients who use Openshift to find staff for services needed. If Professional violates this representation and warranty, the Openshift shall not be responsible for any future claims by outside parties.
• Professional full grants Openshift the ability to share all of the information entered into the Openshift platform concerning the Professional with any and all Clients of Openshift.

4. Privacy Policy; User Information

Professional shall notify Openshift in writing immediately upon the occurrence of any one or more of the following events:

• Professional is suspended, excluded or otherwise ineligible to participate in one or more Government Healthcare Programs or other third party payor programs;
• Professional is aware of any threatened, pending or final suspension, revocation, limitation, restriction or disciplinary action taken by a Board or governmental agency that has jurisdiction over him or her;
• Professional is charged with or convicted of any felony, any misdemeanor involving fraud, dishonesty, controlled substances, or moral turpitude, or any other crime relevant to the provision of nursing services or the practice of nursing;
• Professional uses illegal drugs or performs the Professional Services while impaired by or under the influence of any chemical substance;
• Professional violates (i) any applicable employment policies, procedures and guidelines of Openshift, each as may be adopted or amended by Openshift from time to time, and including its employee handbook and its policies regarding the absolute prohibition of any form of discriminatory behavior or sexual harassment in any placement relationship, or (ii) any federal, state or local laws, regulations and orders (collectively, the “Laws”) applicable to performance of the Professional Services; and
• Professional has any concerns regarding a Client worksite or working conditions including with respect to prohibited discrimination or harassment in the workplace.

5. Non-Solicitation.

Professional acknowledges and agrees that Openshift has provided to Professional a valued service in presenting Professional to Clients. In return, to the extent consistent with applicable state law, Professional shall not solicit or accept either a temporary engagement or permanent position directly with a Client, or an Affiliate of a Client, that was the subject of an Introduction to Professional for a period of one (1) year after the date of the Introduction unless (i) Professional has provided Openshift with written notice at least fifteen (15) business days before Professional provides such services to Client or its Affiliates and (ii) Client pays Openshift an Introduction Fee or Reassignment Fee, as may be defined in each Client’s agreement with Openshift. For purposes of the Professional Terms, an “Affiliate” of a Client includes, but is not limited to, an organization or person that has any form of direct or indirect business relationship with such Client, any entity comprised of one or more owners of such Client, or any successor to or assignee of such Client. For purposes of the Professional Terms, an “Introduction” shall be deemed to have occurred when Professional or a Client has initiated contact with the other, regardless of whether the other responds and regardless of whether such contact ultimately occurred through the Site or otherwise, so long as the contact came about as result of the registration with or use of the Site by either the Openshift Professional or the Client.

6. Severability; No Waiver.

If any provision of these Professional Terms is held to be contrary to Law, such provision shall be deemed valid only to the extent permitted by Law, and all other provisions shall continue in full force and effect. Openshift’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall Openshift’s waiver of any breach or default of these Professional Terms constitute a waiver of any subsequent breach or default.

7. Governing Law

These Professional Terms are enforceable pursuant to and in accordance with the Laws of the State of Delaware. Any dispute arising out of these Professional Terms shall be decided by a court of competent jurisdiction in New York County, New York.

8. Successors and Assigns; No Assignment

These Professional Terms shall be binding upon, and shall inure to the benefit of, Openshift and Professional and their respective heirs, legal representatives, successors and assigns. Professional shall not assign or subcontract any of his or her rights, interests, duties, or obligations under these Professional Terms without the prior written consent of Openshift, which consent may be given or withheld in Openshift’s sole discretion, and any attempted or purported assignment in violation of this Section 8 shall be void.

9. Headings

The subject headings of the sections of these Professional Terms are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions.

10. Arbitration

Except as prohibited by Law, any dispute between Openshift and Professional under these Professional Terms shall be resolved through binding arbitration in New York County, New York under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent Openshift or Professional from filing charges with state or federal agencies. Professional agrees that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and Professional waives any right to bring class-wide, collective or representative claims before any arbitrator or in any forum. PROFESSIONAL UNDERSTANDS THAT BY AGREEING TO ARBITRATE DISPUTES PROFESSIONAL IS WAIVING ANY RIGHT THAT HE OR SHE MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of Openshift or Professional’s right to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration.

11. Entire Agreement.

These Professional Terms, Openshift’s Site Use Terms, and any employment agreement or order, if any, between Professional and Openshift constitute the entire agreement between Professional and Openshift relating to and governing Professional’s use of the Site and Openshift’s relationship with Professional, superseding any prior agreements between Professional and Openshift.

12. Notices

All notices or communications required or permitted under these Professional Terms may be made either via (a) e-mail (in which cases such notice shall be deemed given on the date of delivery), (b) by next business day courier service (e.g., Federal Express, UPS or other similar service) (in which case such notice shall be deemed given on the business day following date of deposit with the courier service), or (c) by United States mail, first class, postage prepaid, registered or certified, return receipt requested (in which case such notice shall be deemed given on the third (3rd) day following the date of deposit with the United States Postal Service). Notice to Openshift shall be delivered to Openshift [by clicking the “Contact Us” link in the footer of the home page]. Notice to Professional shall be delivered to the e-mail address or physical address provided by Professional to Openshift from time to time.

13. Modifications

Openshift may modify these Professional Terms with notice to Professional. Openshift includes the effective date of these Professional Terms at the top of the Professional Terms. Such modifications to these Professional Terms shall take effect, and be binding on Professional thirty (30) days after such notification.

14. Background Checks

Professional grants Openshift complete permission to run one or multiple background checks on them to ensure compliance with all Terms of Use.

1. Account Registration and Suspension

Clients who wish to engage Professionals for Engagements through the Site shall have registered an account with Openshift through the Site. Representatives of the Client will create individual accounts by selecting a username and password and associating such accounts with the Client’s facility or facilities. Each representative of the Client must be verified as an employee of the Client by either (a) transmitting a photograph of his or her Client-issued identification badge or (b) receiving an invitation to Openshift from a Client representative who has already been verified as an employee of the Client by other means, including, but not limited to, the mechanism described in (a). Client users may suspend his or her individual account at any time using the account settings page or by contacting Openshift using the “Contact Us” link in the footer of the home page.

Openshift may suspend Client’s account if Client fails to follow the terms of use, or the payment terms as outlined in Section 4, below. If Client’s account is suspended, such account will no longer appear on the Site as visible to the public, but such suspension will not terminate these Terms or any outstanding payments due to Openshift.

2. Duties of Client

• Clients may from time to time select Professionals introduced to Clients through the Site to perform Professional Services on behalf of Clients for the rates specified in one or more Orders by submitting to Openshift a completed and fully-executed Order. Clients shall exercise independent judgment in assessing the professional qualifications of each Professional it seeks to engage and shall be responsible for credentialing each Professional to determine whether each Professional is qualified by training and experience to perform the Professional Services described on the Order. Clients acknowledge that Openshift is not licensed to practice medicine and shall have no control as to the means or the quality of the Professional Services furnished by the Professionals, nor shall Openshift have any right or responsibility for making any determinations regarding the Professionals’ professional service engagements, schedule or practice.
• Clients, shall be responsible for the applicable Professionals Fees due to Openshift, and that is due to each Professional, as well as for determining the Professionals’ work schedule, coverage assignments, schedule, number of hours provided, number of patients served and other requirements related to the performance of the Professional Services by the Professionals.
• Clients shall, as necessary and appropriate, provide to the Professionals providing Professional Services on behalf of Clients (A) a reasonable coverage schedule, (B) reasonably maintained, usual and customary equipment and supplies, (C) a suitable practice environment complying with acceptable ethical and procedural standards and (D) as necessary, appropriately trained support staff, all so as to enable the Professionals to perform the Professional Services in their specialty on comparable terms to other practitioners in the same specialty as the Professionals. Client shall provide to the Professionals an orientation of Client’s facility and required policies and procedures.
• Clients shall use their best efforts to assist the Professionals in timely obtaining any medical staff privileges necessary for the Professionals to provide the Professional Services on behalf of such Clients and shall pay all application fees associated with obtaining such privileges.
• Clients shall bill for, collect and retain all service fees generated by the Professional Services rendered by Professionals. Clients are responsible for obtaining all necessary documentation to permit it to bill for and collect all service fees generated by the Professional Services rendered by Professionals.

Clients may, from time to time, post about opportunities to provide Professional Services on behalf of Client on the Site. Consistent with the Site Use Terms, Clients shall only post true information pertaining to opportunities that are actually available and shall use commercially reasonable efforts to timely remove posts for opportunities that are no longer available.

Client sets the rates for these Postings on Openshift, and is solely responsible for updating these rates that are tied to each Posting of the Client. Once a Professional is hired for a Posting on Openshift, then the Client shall be responsible for the rates list on the Posting at that time.

Clients shall comply, and shall cause all of their employees and agents to comply, with (i) the Laws applicable to the obligations of Clients under the Client Terms and any Order; (ii) the Openshift Policies, each as may be adopted or amended by Openshift from time to time; and (iii) specific rules regarding break times for Professionals, geofencing and time sheets, etc.

If there are any occupational safety hazards or events involving a Professional engaged by Clients pursuant to the Client Terms and any Order, or there is any sentinel event or actual or threatened claim arising out of or relating to the acts or omissions of such Professional, such Clients shall provide Openshift with written notice of such claim immediately, and in no event, ten (10) days after such Clients knew or reasonably should have known of such claim.

3. Time Sheets and Professional Feess

Clients shall be responsible for verifying the Professionals’ Time Sheets on a weekly basis. This will be maintained by the Openshift platform’s geo fence clock in and clock out for all work performed by the Professionals for the Client. Clients shall approve, and remit to Openshift the Professional Fees associated with, each Time Sheet as the Payroll is processed each week. The Client has up to the close of business on the Monday for the following work week to notify Openshift of any discrepancies in the hours reported in the Time Sheets for each Professional (the “Expiration Date”). If such notice is not given to Openshift by this Expiration Date, then the Client is waiving any right to formal disputes on the hours due to each Professional and Openshift. Interest shall accrue on any late payments at a rate of one-and-one-half percent (1.5%) per week compounded annually, provided however that such interest shall not be greater than the applicable legal maximum rate of interest if lower. Openshift shall remit to each Professional the Professional Fees, and any associated interest, within thirty (30) calendar days of receipt from Clients.

An agreed too Time Sheet by a Client shall indicate such Client’s agreement that the applicable Professional properly provided the Professional Services for the stated hours and that such Client will remit the Professional Fees pursuant to the Client Terms and the applicable Order. If a Client has any questions concerning a Time Sheet, such Client must notify Openshift in writing by the Expiration Date. If such Client does not provide such notice to Openshift, such Time Sheet shall be deemed accurate and valid.

If a Professional works more the Forty (40) hours per week under a Client and the Client’s Employer Identification Number, even if in multiple locations for the Client, over time will be calculated and charged to Client’s billings for Professional’s services.

4. Payment

• Each Client shall pay Openshift (A) a fee weekly, (collectively the “Openshift Fees”). The Openshift Fees shall be paid by ACH (Automated Clearing House Network) automated payments or by Credit Card automatic payments. Interest shall accrue on any late payments at a rate of one-and-one-half percent (1.5%) per week compounded annually, provided however that such interest shall not be greater than the applicable legal maximum rate of interest if lower.
• If a Client has reasonable cause to dispute the accuracy of an invoice, such Client shall promptly, but in any case, not later than the close of business for the Monday following each work week, notify Openshift in writing of the nature of the dispute. Such Client shall make all commercially reasonable efforts to completely resolve the dispute within the Expiration Date timeframe. If Openshift and such Client are unable to resolve the dispute within the period described above, it will be resolved pursuant to the dispute resolution provisions in Section 12 of the Site Use Terms.
• Clients acknowledge and agree that Clients shall not collect, or attempt to collect, remuneration of any kind from the Professionals to reimburse or compensate Clients for the Openshift Fees, for the Professional Fees, or otherwise related to Clients’ use of the Site or the engagement of the Professionals.

5. Representations and Warranties

Each Client represents and warrants the following: Such Client has and shall maintain any and all licenses, permits, registrations, or other certifications necessary to perform its obligations under the Client Terms and any Order and to engage Professionals to provide the Professional Services on behalf of such Client; and Such Client has all requisite power and authority, and has taken all corporate action necessary, to agree to the Client Terms and to perform its duties obligations under the Client Terms. Each Client represents and warrants that they are not subjected to an outside agency agreement, where staff using the Openshift platform would require a buyout fee with any agency. The Client assumes all liability with any prior agency that handled the Client’s staffing needs before moving over the Openshift.

6. Relationship of the Parties

None of the provisions of the Client Terms are intended to create, nor shall be deemed or construed to create, any relationship between Openshift and any Client other than that of independent parties contracting with each other for the purpose of effecting the provisions of the Client Terms. Each Client acknowledges that (i) Openshift and such Client are not and shall not be construed to be in a relationship of joint venture, partnership or employer-employee, (ii) the Professionals are and shall at all times be independent contractors with respect to such Client in their performance of the Professional Services; (iii) the Professionals are not employees, subcontractors, or agents of Openshift for any purpose; (iv) Openshift is not involved in the practice of medicine and does not have any responsibility for the medical acts of the Professionals providing the Professional Services on behalf of such Client pursuant to the Client Terms and an Order; and (iv) no provision of the Client Terms shall be deemed or construed to mean that Openshift or any employee of Openshift is engaged in the practice of medicine.

7. LIMITATION OF LIABILITY BY OPENSHIFT FOR PROFESSIONAL SERVICES

OPENSHIFT SHALL HAVE NO LIABILITY TO ANY CLIENT FOR ANY INJURY OR LOSS TO ANY PARTY RELATING TO OR IN ANY WAY ARISING OUT OF THE PROFESSIONALS’ PROVISION OF PROFESSIONAL SERVICES ON BEHALF OF A CLIENT PURSUANT TO THE CLIENT TERMS OR ANY ORDER OR FOR ANY ACTIONS OF THE PROFESSIONALS.

OPENSHIFT IS JUST A PLATFORM AND IS NOT RESPONSIBLE IN ANY WAY TO FILL ALL OF THE CLIENT’S SCHEDULING NEEDS.

8. Insurance

Client shall maintain general liability insurance with customary coverage levels. If a Client’s coverage is on a claim(s) made basis, then Client shall (i) maintain such insurance for a period of no less than three (3) years after the last Professional provides Professional Services on behalf of such Client pursuant to the Client Terms or (ii) procure equivalent extended reporting period coverage. Within two (2) business days of Openshift’s request at any time, a Client shall provide evidence of such insurance coverage to Openshift.

9. Health Insurance Portability and Accountability Act

Openshift and each Client acknowledge that the performance of Openshift’s obligations under the Client Terms does not involve the use or disclosure of protected health information (the “PHI”). Openshift shall not receive PHI from any Client, nor create, receive, maintain or transmit PHI on any Client’s behalf. Consequently, Openshift and each Client hereby agree that Openshift is not a “business associate” of any Client, as defined in 45 C.F.R. §160.103, for purposes of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder.

10. Non-Solicitation of Openshift Employees

A Client that is a party to an Order shall not, during the term of such Order and for a period of one (1) year thereafter, directly or indirectly, on its own behalf or in the service or on the behalf of others, (i) induce or attempt to induce any director, officer or employees of Openshift to leave Openshift, or (ii) hire, contract or take away or cause to be hired, contracted or taken away any director, officer or employee of Openshift.

11. Reassignment Fee

In the event that, within two (2) years after a Professional and a Client last communicated via the Site, such Client or any Affiliate of such Client directly (i.e., outside of the Client Terms) employs or retains a Professional introduced to such Client through an Introduction, such Client shall pay to Openshift a reassignment fee equal to ten percent (10%) of the Professional Fees paid by such Client during the first (1st) year that Professional provided Services on behalf of such Client or $50,000, whichever is less (the “Reassignment Fee”). The Reassignment Fee shall be due in full on the first (1st) day such Professional performs services for such Client or an Affiliate of such Client in such capacity. Until the Reassignment Fee is paid by such Client, all services provided by such Professional to Client or an Affiliate of Client shall be treated as provided through this Agreement. For purposes of these Client Terms, an “Introduction” shall be deemed to have occurred when a Professional or Client has initiated contact with the other, regardless of whether the other responds and regardless of whether such contact occurred through the Site or otherwise.

12. Indemnification.

In addition to any other obligation of a Client otherwise to provide indemnification, each Client agrees to indemnify and hold harmless Openshift, its directors, officers, employees, agents and affiliates from and against any and all Claims arising out of or resulting from any act or omission of, by or on behalf of Client, including without limitation (i) execution or performance of an Order by, for or on behalf of Client, or (ii) any breach of the Client Terms or an Order by, for or on behalf of Client.