Last Revised: July 8th, 2023
Terms of Service
These Terms of Service govern the use of (i) the services offered by NurseCall, Inc. dba NurseLab (“NurseLab” or the “Company”), including the services and resources available or enabled via the Company’s website, nurselab.co (the “Site”), and through the Company’s mobile applications (such services, the Site and mobile applications together are hereinafter collectively referred to as the “Service.”), and (ii) the technology, applications and content made available by the Company and its subsidiaries and affiliates on the Site or through the Company’s mobile applications (collectively “Our Content” and, together with the Service, the “Platform”). The terms “we,” “us” and “our” refer to the Company and “you” or “your” refers to any person accessing and/or using the Platform.
Your use of, and participation in, the Service may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the Service. If these Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. Examples of Supplemental Terms include the [Application and Registration Agreement] and [Facility Agreement].
THE ARBITRATION AGREEMENT IN SECTION 8 (DISPUTE RESOLUTION; ARBITRATION) OF THESE TERMS OF SERVICE CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND THE COMPANY HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, THE ARBITRATION AGREEMENT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND THE COMPANY TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE PLATFORM WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. About the NurseLab Platform
1.1 Service Connects Medical Professionals and Facilities
The Service enables hospitals, clinics and medical facilities (each, a “Facility”) to efficiently schedule external Medical Professionals to meet their short-term staffing needs. “Medical Professionals” means professionals that provide ancillary services at Facilities including, without limitation, nurses, therapists, technicians. Each Medical Professional and Facility is referred to as a “User” in these Terms of Service. “Appointment” means an appointment for Medical Services with a Medical Professional.
As part of the Service, NurseLab allows independent Medical Professionals to register and make themselves available for hiring by the Facilities to address their short-term hiring needs. The professional services provided by a Medical Professional (“Medical Services”) are provided solely by the Medical Professionals, and NurseLab itself does not provide or warrant Medical Services.
1.2 Platform Only Provides a Venue
The Platform enables connections between Medical Professionals and Facilities for the fulfillment of requests for Medical Services by Facilities from Medical Professionals, but the Company is not responsible for the performance of the Medical Professionals, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Medical Professionals or Facilities, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Medical Professional or Facility. The Company does not have control over the quality, timing or legality of Medical Services delivered by the Medical Professionals. The Company checks the background and experience of such Medical Professionals via third party background check and primary source verifications services and other means; however, each Facility using the Service must decide whether a Medical Professional is suited to its needs. The Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Medical Services requested by Facilities or provided by Medical Professionals identified through the Service, whether in public, private, or offline interactions. The Company does not employ, recommend, endorse or guarantee any Medical Professionals or Facilities.
1.3 Separate Agreement for Medical Services
Each User is solely responsible for interacting with and selecting another User, is conducting all necessary due diligence and complying with all applicable laws. You acknowledge and agree that by submitting a request for Medical Services or accepting such a request, you enter into an agreement directly with another User. You acknowledge and agree that the Company is not a party to such agreements. The Company disclaims all liability arising from or related to any such agreements between Facilities and Medical Professionals except as related to the Company’s obligation to process payments pursuant to this Agreement.
2. Changes to these Terms of Service
These Terms of Service are subject to change by the Company, in its sole discretion, at any time and from time to time (provided that such changes will not be applicable to pending arbitrations). Please regularly check the Site to view the then-current Terms of Service. When the Company makes changes, a new copy of the Terms of Service will be made available on the Site and any changes will be effective immediately for new users of the Platform and will be effective fifteen (15) days after providing notice of such changes in accordance with Section 9.3 of these Terms of Service. The Company may also require you to provide consent to the updated Terms of Service in a specified manner before the Company permits your further use of the Platform. If you do not agree to any change(s) to these Terms of Service, you must stop using the Platform. Your continued access or use of the Platform constitutes your consent to be bound by the Terms of Service, as amended.
3. Your Use of The Service
3.1 User Account
In order to use most aspects of the Service, you must register for and maintain an active personal User Service account (“Account”). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Service. If you provide the Company with any information in your Account that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by the Company in writing, you may only possess one Account. In creating an Account, you represent that you are not a person barred from using the Platform under applicable law. You agree not to create any Account or use the Platform if the Company has previously removed you or banned you from any of the Platform.
3.2 Electronic Communications
You and the Company use electronic means to communicate, whether you use the Service or send the Company emails, or whether the Company posts notices on the Service or communicates with you via email. For contractual purposes, you: (a) consent to receive communications, including notifications, from the Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in a hardcopy writing. The foregoing does not affect your non waivable rights.
3.3 Network Access and Devices; Updates.
You are responsible for obtaining the data network access necessary to use the Service. Your mobile network’s data and messaging rates and fees may apply if you access or use the Service from your mobile device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Service and any updates thereto. The Company does not guarantee that the Service, or any portion thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Because the Platform is evolving, you acknowledge and agree that we may update the Platform with or without notifying you. You may need to update third-party software from time to time in order to use the Platform. Any future release, update or other addition to the Platform shall be subject to the Agreement.
Subject to your compliance with this Agreement, the Company grants you a limited, non-exclusive, revocable, non-sub-licensable and non-transferable license to access and use the Platform made available to our Users and to reproduce portions of the Platform available to Users for the sole purpose of using the Service for your personal and internal business use. Any rights not expressly granted herein are reserved by the Company and the Company’s licensors. Any unauthorized use of the Platform terminates the licenses granted by the Company in the Agreement.
3.5 Use of the Service
You agree to comply with all applicable laws when using the Platform, and you may only use the Platform for lawful purposes. You will not in your use of the Service cause nuisance, annoyance, inconvenience, or property damage, whether to the Medical Professional, the Facility or any other party. You will not take any of the following actions with respect to the Platform: reproduce, distribute, license, resell, copy, reverse engineer, mirror, frame, scrape, data mine, spam, access in an unauthorized manner, interfere with, or use to build competitive or similar products.
The Platform and all associated rights are the Company’s property or the property of the Company’s licensors. Nothing in these Terms of Service shall convey or grant to you any rights except for the limited license granted above.
You agree that submission of any ideas, suggestions, comments, and proposals to the Company (“Feedback”) is at your own risk and that the Company no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner all Feedback, and to sublicense the foregoing rights, in connection with the operation, maintenance, and enhancement of the Platform.
Whenever a User is asked to provide ratings of another User, such ratings will represent the independent, honest, and genuine opinion of the User providing the rating.
4. Acceptable User Conduct.
When accessing or using the Platform or Services, you agree that you will not, under any circumstances:
5. Violations of this Agreement
If the Company becomes aware of any possible violations, or if the Company, in its sole discretion, determines that you breached any portion of the Agreement or have otherwise demonstrated conduct inappropriate for the Platform, the Company reserves the right to:
6. Disclaimers; Limitation of Liability; Indemnity
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, SAFETY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM OR IT WILL BE UNINTERRUPTED OR ERROR-FREE.
6.2 No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY, ITS AFFILIATES, AND ITS SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY, ITS AFFILIATES AND SUPPLIERS LIABLE, FOR THE CONDUCT OF OTHER USERS, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH USERS RESTS ENTIRELY WITH YOU.
6.3 No Liability for User Interactions.
THE COMPANY, ITS AFFILIATES, AND ITS SUPPLIERS DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER; AND YOU ACKNOWLEDGE THAT THE COMPANY IS NOT ABLE TO CONTROL OR SUPERVISE YOUR INTERACTIONS OR TRANSACTIONS WITH OTHER USERS OF THE PLATFORM. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SUCH INTERACTIONS OR TRANSACTIONS. THE COMPANY RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO (I) MONITOR ANY SUCH DISPUTE OR (II) UPON YOUR REQUEST, INTERVENE IN SUCH DISPUTE FOR THE PURPOSE OF RESOLVING THE DISPUTE, PROVIDED THAT THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM ANY MONITORING OR INTERVENTION OF SUCH ACTIVITIES.
6.4 Quality of Medical Services.
THE QUALITY OF MEDICAL SERVICES REQUESTED THROUGH THE USE OF THE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE MEDICAL PROFESSIONAL WHO PROVIDES SUCH MEDICAL SERVICES. FACILITIES UNDERSTAND THAT BY USING THE SERVICE, THEY MAY BE EXPOSED TO MEDICAL SERVICES THAT ARE POTENTIALLY HARMFUL, UNSAFE, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF THE MEDICAL SERVICES, AND SUCH MEDICAL PROFESSIONALS, IS AT THEIR OWN RISK.
6.5 Limitation of Liability.
THE COMPANY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY LOSS OR DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND THE COMPANY’S REASONABLE CONTROL. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION RELATED TO THE PLATFORM EXCEED FIVE HUNDRED U.S. DOLLARS (US $500). THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You agree to indemnify and hold the Company and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with your use of the Platform, your lack of authority to bind the Facility to these Terms of Service (if applicable), the breach or violation of any of these Terms of Service, or your violation of the rights of any third party, including any Medical Professional. For the avoidance of doubt, this indemnification provision applies to any claims that a Professional was misclassified as an independent contractor, and any claims arising from or related to such misclassification. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that the provisions in this Section 8 will survive any termination of your Account, the Agreement, or your access to the Platform.
7. Dispute Resolution; Arbitration
7.1 Binding Arbitration.
You and the Company agree to resolve any dispute, controversy or claim, whether past, present, or future, between you and the Company (each, a “Dispute”) through final and binding arbitration except those Disputes specifically excluded below (“Arbitration Agreement”). YOU UNDERSTAND THAT NEITHER YOU OR THE COMPANY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL IN THE EVENT OF A DISPUTE, except as expressly excluded below. This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, the Company will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Waiver of Right to Participate in Class Action” described below.
7.2 Excluded Disputes.
The following Disputes are excluded from this Arbitration Agreement: (1) any injunctive or other equitable relief on an individual basis in a federal or state court with respect to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for amounts due and payable to NurseLab.
7.3 Waiver of Right to Participate in Class Action.
You agree that any arbitration or other dispute proceedings will be limited to the Dispute between the Company and you. YOU ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator. If this specific paragraph is held unenforceable, then the entirety of Section 9 “Dispute Resolution; Arbitration” shall be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution; Arbitration” section will survive any termination of these Terms of Service.
7.4 Rules Governing Arbitration Proceeding.
A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in a court of competent jurisdiction. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.
You and the Company agree that, except as provided under “Waiver of Right to Participate in Class Action,” if any portion of this section entitled “Dispute Resolution; Arbitration ” is found illegal or unenforceable, that portion will be severed and the remainder of this Section 7 will be given full force and effect.
The Company may immediately terminate your Agreement with the Company, or the offering of the Service or any portion thereof, at any time for any reason, through notice as provided below.
8.2 Choice of Law.
These Terms of Service are governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles.
The Company may give any notice required or permitted under these Terms of Service by means of a general notice on the Site or any of the Company’s mobile applications, by electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or posted on the Site or in the Company’s mobile applications or 12 hours after sending (if sent by email). You may give notice to the Company, with such notice deemed given when actually received by the Company, by first class mail or pre-paid post to NurseCall, Inc. 17434 Bellflower Blvd Ste 200-252, Bellflower, CA 90706.
8.4 Assignment; Construction.
You may not assign this Agreement without the Company’s prior written approval. The Company may assign this Agreement without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of the Company’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The Company’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing.
9.5 California Users & Residents.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.J