NETWORK USER AGREEMENT
Superb nursing professional network user agreement
This Network User Agreement (“User Agreement”) is made and entered into by and between you (or, if you are entering on behalf of a company or other legal entity, such entity, including any successors, assigns, and third party beneficiaries) (“User,” “you” or “your”), and
Superb Shifts, Inc. (“Superb”), effective as of the earlier of the date you click “Accept,” first access or use the Service, or otherwise indicate your assent (“Effective Date”).
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES (SEE SECTION 14).
THIS USER AGREEMENT REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE USER AGREEMENT OR YOUR ACCESS TO OR USE OF THE NETWORK, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE USER AGREEMENT, AND YOU AGREE THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. BY ACCESSING OR USING THE NETWORK AND USING THIS PLATFORM, YOU AGREE TO BE BOUND BY THE USER AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED WITHIN THE NETWORK OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE USER AGREEMENT, DO NOT ACCESS OR USE THE NETWORK OR PLATFORM. Superb DOES NOT EMPLOY, RECOMMEND, ENDORSE, OR GUARANTEE ANY MEDICAL-SERVICE PROFESSIONALS, HEALTHCARE PROVIDERS, OR FACILITY, AND YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE NETWORK.
User represents and warrants that User is at least eighteen (18) years of age or the age of majority in your state, whichever is greater, and of legal age to form a binding contract. If User is a company or other legal entity, User represents and warrants that you are authorized and lawfully able to bind such entity, in which case the term “User” will refer to such entity.
The applicability of each section below depends upon the nature of your access to or use of the Service or your relationship to Superb.
A. All Users: Applies to anyone who accesses or uses the Network.
B. Healthcare Providers: Applies to User to the extent User accesses or uses the Network as a Healthcare Provider (defined below).
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A. ALL USERS
1. DEFINITIONS.
“Account” has the meaning given in Section A(3)(a).
“App” means any mobile application made available by Superb for accessing or using the Network.
“Completed Service” or “Completed Shift” has the meaning given in Section A(2)(e).
“Content” means any text, graphics, images, photos, audio or visual works, data, information or other content.
“Credentials” means any user accounts, passwords and other authentication credentials associated with your access to or use of the Network.
“Facility” means Facility and Home Care and any entity that provides medical or physical care services and accesses or uses the Platform to, among other things, post Service Requests, receive offers from Healthcare Providers to fill Service Requests, and pay Professional Services Fees.
“Facility Policies” has the meaning given in Section A(2)(h).
“Healthcare Provider” means an individual who is a medical-services or care professional and accesses or uses the Platform to, among other things, offer his or her professional services to fill Service Requests for Facilities and receive payment in connection with performance of Professional Services.
“Intellectual Property” means all intellectual property and proprietary rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including: (i) copyrights, “moral rights,” trademarks, service marks, logos, trade dress, designs, patents, inventions, trade secrets, publicity rights and privacy rights; and (ii) all rights in any applications and registrations, including all renewals, extensions and restorations, for any of the foregoing.
“Network” means the Platform, access to, and use of the Platform, and all parties who participate in the Platform.
“Platform” means Superb’s proprietary online platform made available through its App and/or the Site, including all Content, software and other components composing the foregoing.
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“Professional Compensation” or “Shift Rate” has the meaning given in Section A(2)(b). “Professional Services” has the meaning given in Section A(2)(a).
“Qualification Data” has the meaning given in Section (B)(2)(c).
“Registration Information” has the meaning given in Section A(3)(a).
“Service Agreement” has the meaning given in Section A(2)(g).
“Service Application” has the meaning given in Section A(2)(c).
“Service Request” means each individual request for Professional Services submitted through the Platform by a Facility.
“Site” means the website located at www.app.Superb.com and associated domains made available by Superb for accessing or using the Network.
“Third-Party Content” means all Content made available through the Network by third parties, including other Users.
“Users” means collectively, Healthcare Providers and Facilities.
“Your Content” means all Content that you submit, upload, email, transmit or otherwise make available through the Platform.
2. HOW THE NETWORK WORKS.
(a) The Network. Superb provides access to and use of the Platform to connect Healthcare Providers willing to provide medical or physical care services on a short-term basis (“Professional Services”), with Facilities, who are independent third-party businesses that seek to engage Healthcare Providers to provide Professional Services. After a Facility posts a Service Request, a Healthcare Provider may view the posting and choose to indicate the Healthcare Provider’s availability to provide the medical services requested by the Facility for the Service Request. The Facility may then review responses from Healthcare Providers indicating availability and determine which Healthcare Provider it wishes to engage based on information supplied by the Healthcare Providers to Facilities through the Platform.
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(b) Service Requests. Each posting for a Service Request will be for one Healthcare Provider, such that, to hire two Healthcare Providers, a Facility must submit two postings for Service Requests. Each posting for a Service Request must contain the nature and type of Professional Services required from the Healthcare Provider, including a description of the services, the start and end time for the services, the compensation for Professional Services (“Professional Compensation or Shift Rates”) and the location where the services must be performed, the licensing requirements for the services, and any other pertinent information.
(c) Service Applications. Healthcare Providers can review postings for Service Requests and, through the Platform, submit an offer to the applicable Facility to provide Professional Services to fill any such Service Request (each such offer, a “Service Application”). Each Service Application must include certain information, including the Healthcare Provider’s name, work history, certification information and any other information requested in the posting for the Service Request as permissible by applicable law.
(d) Selection of Professionals. Using the Platform, Facilities will be able to view all Healthcare Providers that have indicated they wish to provide Professional Services for any Service Request, including such Healthcare Provider’s name, work history, and qualifications. Facilities will decide, in their sole discretion, which Healthcare Provider they wish to engage for any Service Request.
(e) Completed Service. Each Service Application that a Facility has accepted and for which the Healthcare Provider has fully performed the applicable Professional Services to the satisfaction of the Facility is hereinafter referred to as a “Completed Service or Completed Shift.”
(f) Only a Platform. Superb only provides a platform for Facilities and Healthcare Providers to communicate and contract with one another and exchange money as payment for Professional Services provided by Healthcare Providers to Facilities. Facilities are solely responsible for determining whether a particular Healthcare Provider is qualified to provide the Professional Services for the applicable request. Superb does not endorse or vouch for any Healthcare Provider or Facility.
(g) Service Agreement. When a Facility accepts a Service Application for a Service Request, the Facility and the applicable Healthcare Provider have formed a binding agreement between them (the “Service Agreement”). Except as otherwise provided in Section A(5)(c) (Superb Cancelation Policy), the Service Agreement obligates, (i) the Facility to engage the Healthcare Provider to provide the Professional Services on the date and at the times and location specified in the applicable Service Request, (ii) the Healthcare Provider to perform the Professional Services on the date and at the times and location specified in the applicable Service Request, and (iii) the Facility to pay the Professional Compensation (less any reduction for early termination) specified
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in the applicable Service Request. The Service Agreement is solely between such Facility and that Healthcare Provider. Superb is not a party to any Service Agreement. Superb expressly disclaims and Users expressly release Superb from any and all liability arising from or relating to any Service Agreement. (h) Facility Policies. If there are any additional policies, procedures, or requirements that a Healthcare Provider is required to follow in performing Professional Services for an applicable Service Request (“Facility Policies”), it is solely the responsibility of the Facility to provide Facility Policies to the applicable Healthcare Provider. All Facility Policies are determined and established in the sole discretion of the applicable Facility. Superb has no role in creating, distributing, or enforcing any Facility Policies. Each Facility agrees that as a condition of using the Platform and Network, the Facility Policies cannot alter or revoke the terms of the applicable Service Request or amend this User Agreement.
(i) Scope Rating. Superb Shifts Technology uses data and analytics to determine scope rating. Data is calculated by completed shifts, canceled shifts, No Call No Service’s, and facility rating of the health care professional.
(j) No Obligation on Superb. Superb is not an employment agency and does not secure employment for any Healthcare Providers, nor does it secure or procure opportunities for employment for any Healthcare Providers. Superb does not: (i) offer, provide, or request Professional Services (or any training, equipment, or materials relating thereto); (ii) mediate or otherwise monitor the interactions between Users or enforce any Service Agreement; (iii) establish any Facility Policies or have any control over or otherwise supervise the manner, means, quality, timing, legality, or failure to provide Professional Services or any aspect whatsoever of any feedback or ratings provided by Users; or (iv) have control over the integrity, responsibility, or any actions of any Users.
(k) No Representations or Warranties Regarding Professional Services. Superb makes no representations or warranties about, and disclaims all liability associated with: (i) the suitability, reliability, quality, and timeliness of the Professional Services provided by Healthcare Providers; and (ii) each Healthcare Provider’s qualifications, background, suitability, skills, and reliability. Superb cannot and does not guarantee the identity of any User or the veracity of any Qualification Data or information provided in any Service Request or Service Application. Any disputes relating to the Professional Services must be resolved directly between the Healthcare Provider and Facility.
(l) No Service Requests for Facility’s Employees. Users agree that Healthcare Providers shall not make application for nor shall Facilities select the application of a Healthcare Provider for a Service Request who is also an employee of that Facility. If such a situation occurs, Facility and Healthcare Provider agree that Facility is solely responsible for compliance with any federal, state, or local employment laws and regulations with regard to having the Healthcare Provider perform any applicable Service Request on the Superb platform.
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(m) Termination of Service Agreement. If Facility determines, in its sole discretion, that Healthcare Provider has engaged in misconduct (to include allegations of abuse, neglect, misappropriation, exploitation, or mistreatment), is unable to perform the required services, is observed to be under the influence of drugs or alcohol, is considered to have been negligent or is not in compliance with a Service Agreement or Facility Policies, Facility may terminate the Service Agreement immediately. Facility shall notify Superb of such termination and noncompliance, and the obligation to pay the Professional Service Fees related to such Service Agreement will be limited to the number of hours actually performed by the Healthcare Provider pursuant to such Service Agreement.
3. REGISTRATION.
(a) Account Creation. To access and use the Network, you must register to create an account (“Account”). In registering for the Network, User shall: (i) provide true, accurate, current and complete information about yourself as prompted by the Platform’s registration form (“Registration Information”); and (ii) maintain and promptly update the Registration Information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, outdated or incomplete, or Superb reasonably suspects that you have done so, Superb may suspend or terminate your Account.
(b) Credentials. User may not share its Account or password with anyone. User is fully responsible for all activities that occur under User’s Account. User agrees to notify Superb immediately of any unauthorized use of User’s Account or password or any other similar breach of security.
(c) Accounts. Superb, as the purveyor of the Network, reserves the right to suspend or terminate a User Account, with or without notice to User, and delete all Registration Information and content. User expressly agrees and acknowledges that Superb disclaims and has no liability to User for any such suspension or termination of User’s Account or deletion of User Registration Information and content.
4. GRANT OF RIGHTS; TEXT MESSAGES.
(a) Superb hereby grants User a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform only through the Site or Apps provided by Superb. Superb reserves the right to make modifications or improvements to or add or remove features from the Network, Site and App from time to time, including changing the Platform, at any time without notice.
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(b) SMS Messages.
1. By consenting to receive SMS/text messaging and/or phone calls (collectively “messages”), User agrees to receive such messages related to the Platform, from and on behalf of Superb, to the number User provided. These messages may be sent using an automatic telephone dialing system or other technology. User's consent is not a condition of using the Platform.
2. Superb does not charge for this functionality, but User is responsible for all charges and fees which may be imposed or associated with such messages imposed by your telephone provider. Message frequency may vary. Standard message and data rates may apply from your telephone provider. Check your specific plan and contact your telephone provider for details. User is solely responsible for all charges related to messages, including charges from your telephone provider.
3. User may opt-out of text messages at any time by texting the single keyword command STOP or by following other instructions contained within the message you received. User may then receive a one-time opt-out confirmation text message. No further messages related to this Platform will be sent to User, unless initiated by you. For Service support or assistance, text HELP or email Superb support.
4. Superb may change any short code or telephone number we use to send messages at any time and will notify you of these changes. User acknowledges that any messages, including any STOP or HELP requests, User sends to a short code or telephone number Superb has changed may not be received and Superb will not be responsible for honoring requests made in such messages. To the extent permitted by applicable law, User agrees that Superb will not be liable for failed, delayed, or misdirected delivery of any information sent, any errors in such information, and/or any action User may or may not take in reliance on the information in messages.
5. USER RESPONSIBILITIES.
(a) Restrictions. User may not, nor may you permit any other party to: (i) reproduce, distribute, modify, translate, adapt, or create derivative works based upon the Platform; (ii) reverse engineer, decode, decompile, disassemble, or otherwise attempt to access or derive the source code or architectural framework of the Platform; (iii) access or use the Platform for purposes of benchmarking or developing, marketing, selling, or distributing any product or service that competes with or includes features substantially similar to the Platform or any other products or
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services offered by Superb; (iv) rent, lease, lend, sell, or sublicense the Platform or otherwise provide access to or use of the Platform as part of a service bureau or similar fee-for-service purpose; (v) take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure or that negatively affects the ability of others to access or use the Platform; (vi) use spiders, crawlers, robots, scrapers, or other similar means to access the Platform, or otherwise substantially download, reproduce or archive any portion of the Platform or App; (vii) frame or use any framing technique to enclose the Platform or otherwise access or use the Platform through any implementation other than as provided by Superb; (viii) submit any materials to the Platform for which you do not have all necessary rights and permissions to submit, including any materials that infringe the Intellectual Property of others; (ix) use the Network to transmit unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other similar communications; (x) transmit any computer virus, worm, Trojan horse, spyware or other malicious code to or through the Platform; (xi) impersonate any entity, including Superb personnel, or falsely state or otherwise misrepresent your affiliation with any entity; (xii) forge headers or otherwise manipulate identifiers to disguise the origin of any materials transmitted through the Platform; or (xiii) access or use the Network in any way that does not comply with all applicable laws and regulations.
(b) Protection. User is solely responsible for protecting the confidentiality of User’s Credentials. In the event that User becomes aware of any unauthorized use of the Network through use of their Credentials, User will promptly give written notice to Superb of such unauthorized use and make reasonable efforts to eliminate such unauthorized use.
(c) Superb Call In or Cancelation Policy. Once a Healthcare Provider has scheduled a shift using the Platform, the Healthcare Provider is able to cancel the scheduled shift and will be charged the assigned fee. The Healthcare Provider will not be charged Platform Repost Fee if they have never provided their services through Superb Shifts Inc. Should the Healthcare Provider cancel their scheduled shift more than 24 hours prior to the shift start time, they will be charged a Platform Repost Fee. Should the Healthcare Provider call in or cancel their scheduled shift 0 - 24 hours prior to the shift start time, the Healthcare Provider will be charged a Cancellation fee. (See Exhibit B for fees)
(d) Superb Late or Delay of Service Policy: Once a Healthcare Provider has scheduled a shift using the Platform, the Healthcare Provider, although an Independent Contractor is asked by the facility to arrive on time to the scheduled shift. Should the Healthcare Provider notify Superb of a delay to their service by 30 - 60 minutes of their scheduled shift start time, they will be charged a Level I Delay of Service Fee. Should the Healthcare Provider notify Superb of a delay to their service by more than 60 minutes of their scheduled shift start time, the Healthcare Provider will be charged a Level II Delay of Service Fee. Should the Healthcare Provider notify Superb of a
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delay to their service by more than 90 minutes of their scheduled shift start time, the Healthcare Provider will be considered a cancellation and charged a Shift Cancellation Fee. Should the Healthcare Provider NOT notify Superb of a delay to their service by ANY amount of time over 15 minutes and the facility no longer wants their services the Healthcare Provider will be considered a cancellation and charged a Cancellation Fee. (See Exhibit B for fees)
6. CONTENT
(a) User Content. User, and not Superb, is solely responsible for: (i) Your Content and giving all required notices and obtaining all necessary consents (including all required rights and permissions from Intellectual Property holders) before submitting Your Content to the Platform; and (ii) ensuring that the submission of Your Content to the Platform will not violate any applicable laws or regulations or any of your obligations to any third party, including any duty of confidentiality.
(b) Use of Your Content. User hereby grants Superb a perpetual, irrevocable, worldwide, royalty
free, fully-paid-up, nonexclusive, sublicensable, transferable license to distribute, transmit, reproduce, modify, adapt, create derivative works from, publish, publicly perform, publicly display and otherwise use Your Content in connection with the Network and in all media now known or hereafter created with or without attribution.
(c) Publicity. User hereby grants Superb a perpetual, irrevocable, worldwide, royalty free, fully-paid-up, nonexclusive, sublicensable, transferable license to distribute, transmit, reproduce, modify, adapt, create derivative works from, publish, publicly perform, publicly display and otherwise use (i) your name, image or likeness to identify you as a User of Superb within Superb’s websites or press releases, brochures or other marketing materials, and (ii) any statements, reviews or testimonials you may provide to Superb upload to the Platform to promote Superb, the Network or Platform or other Users, in each case (i) and (ii) in all media now known or hereafter created with or without attribution.
(d) Third-Party Content. User acknowledges and agrees that the Network may provide access to or rely on Third-Party Content, and the third parties who provide Third-Party Content, and not Superb, are entirely responsible for such content, including its quality, accuracy and completeness.
7. INTELLECTUAL PROPERTY RIGHTS.
(a) Superb Ownership. User acknowledges and agrees that, as between Superb and User, Superb or its licensors owns all rights, title and interest (including all Intellectual Property) in the
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Platform and Network, except with respect to any of Your Content contained on the Platform; and the Network is a compilation or collective work protected under the United States Copyright Act and other laws (including international laws) and treaties.
(b) User Ownership. Superb acknowledges and agrees that, as between you and Superb, User shall own the rights, title and interest (including all Intellectual Property) in and to Your Content.
(c) Feedback. If you elect to provide or make available to Superb any suggestions, comments, ideas, improvements or other feedback relating to the Network or Platform, Superb will be free to use, disclose, reproduce, make, have made, modify, license, sell, transfer and otherwise utilize and distribute in perpetuity such feedback in any manner, without credit or compensation to you.
8. TERM, SUSPENDED ACCESS AND REMOVED ACCESS.
(a) Term. The term for the User Agreement will commence on the Effective Date and will continue while you use Platform and remain part of the Network unless earlier terminated.
(b) Suspended Access /Removed Access. Superb reserves the right to suspend or remove access with or without notice, User access to and use of the Platform at any time for cause or without cause. The following are examples, but not an exhaustive list of reasons Superb may suspend or remove User access: Healthcare Provider ‘no contact no service’ for a shift or scheduled Service, Healthcare Provider canceling initial 2 shifts without providing any prior service through Superb’s platform, Healthcare Provider having 10 or more canceled Shifts within 0-24 hours, Healthcare Provider with No Call No Service prior to completing any shifts,Healthcare Provider having 2 No Call No Service for shifts regardless of how many shifts have previously been completed, Healthcare Provider receiving 3 or more Do Not Return (DNR) designations from Facilities, Healthcare Provider using the platform to engage in unprofessional or inappropriate behavior or towards Superb or any of its Users, or falsifying information relating to services provided using the Superb platform. In addition, any Healthcare Provider found to be in violation of any conduct or core values in accordance with their professional license.
(c) Events Upon Access Removal. Upon removal of access for any reason: (i) all rights granted by Superb to Users will immediately terminate; and (ii) User will immediately cease all access to and use of the Platform. Notwithstanding any termination of the User Agreement, any money that User owes to Superb as of the effective date of termination shall remain due and payable.
(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of the User Agreement will survive such expiration or termination.
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9. REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants to the other that: (a) such party has the necessary power and authority to enter into this User Agreement; (b) the execution and performance of the User Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of the User Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental entity is necessary to make the User Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations.
10. INDEMNIFICATION.
User will indemnify and hold harmless Superb and its affiliates and their respective officers, directors, employees and agents from any loss, damage, cost, liability and expense (including reasonable attorneys’ fees and expenses) arising from any action or claim resulting from: (i) Your Content, including, without limitation, any allegation that Your Content infringes, misappropriates, or otherwise violates any intellectual property or privacy right or rights to publicity; (ii) your breach of the User Agreement; (iii) your violation of applicable laws or regulations, willful misconduct, fraud or gross negligence; (iv) your access to or use of the Platform; (v) any alleged misclassification of a Healthcare Provider as an employee of a Facility or of Superb; (vi) any dispute between Healthcare Provider and any Facility, including, without limitation, any dispute related to this User Agreement, a Service Agreement or any Facility Policies, and any dispute involving any other User; and (vii) any acts or omissions related to Healthcare Provider’s health care services provided or offered to, or withheld from, any patient.
11. DISCLAIMER OF WARRANTIES.
(a) Platform and Network Provided As-Is. YOUR USE OF THE PLATFORM AND NETWORK IS AT YOUR SOLE RISK. ALL PRODUCTS AND SERVICES PROVIDED UNDER THE USER AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” Superb, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING: (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE NETWORK, PLATFORM, PRODUCTS AND SERVICES PROVIDED UNDER THE USER AGREEMENT,
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OR THAT USE OF SUCH NETWORK, PLATFORM, PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS.
(b) Interactions with Other Users. User is solely responsible for User’s interactions and transactions with other Users. You agree to look solely to such other Users for any claim, damage or liability associated with any communication or transaction via the Network. YOU EXPRESSLY WAIVE AND RELEASE Superb FROM ANY AND ALL LEGAL RESPONSIBILITIES, CLAIMS, RIGHTS OF ACTION, CAUSES OF ACTION, SUITS, DEBTS, JUDGMENTS, DEMANDS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY OTHER USER OR THIRD PARTY, INCLUDING DAMAGES RELATING TO MONETARY CLAIMS, PERSONAL INJURY OR DESTRUCTION OF PROPERTY, MENTAL ANGUISH, INTEREST, COSTS, ATTORNEYS’
FEES, AND EXPENSES. YOUR SOLE REMEDIES WITH RESPECT THERETO SHALL BE
BETWEEN YOU AND THE APPLICABLE USER OR OTHER THIRD-PARTY. THE SERVICE IS A MARKETPLACE SERVICE FOR USERS TO CONNECT ONLINE EACH USER IS SOLELY RESPONSIBLE FOR INTERACTING WITH AND SELECTING ANOTHER USER, CONDUCTING ALL NECESSARY DUE DILIGENCE, AND COMPLYING WITH ALL APPLICABLE LAWS.
12. LIMITATION OF LIABILITY.
(a) General. IN NO EVENT WILL Superb BE LIABLE TO USER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COSTS OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PLATFORM, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE NETWORK OR ITS DELIVERY
VIA THE INTERNET, OR ANY INACCURACY, INCOMPLETENESS OR OTHER DEFECT IN ANY CONTENT ACCESSIBLE THROUGH THE PLATFORM, EVEN IF Superb HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. OTHER THAN WITH RESPECT TO Superb’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF Superb UNDER THE USER AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT OF FEES RECEIVED BY Superb FROM USER UNDER THE USER AGREEMENT IN THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE, OR (ii) $500.
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(b) Quality of Professional Services. THE QUALITY OF PROFESSIONAL SERVICES REQUESTED THROUGH THE USE OF THE NETWORK IS ENTIRELY THE RESPONSIBILITY OF THE HEALTHCARE PROVIDER WHO PROVIDES SUCH PROFESSIONAL SERVICES. FACILITIES UNDERSTAND AND EXPRESSLY AGREE THAT BY USING THE NETWORK, THEY MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY HARMFUL, UNSAFE, OR OTHERWISE OBJECTIONABLE, AND THAT USE OF THE PROFESSIONAL SERVICES, AND SUCH PROFESSIONALS IS AT FACILITIES’ OWN RISK.
(c) Links and External Materials. Superb or Facilities may provide links to other websites or resources. You acknowledge and agree that Superb does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (“External Materials”). These other sites and resources are subject to different terms and conditions and privacy policies, which you are responsible for reviewing. Superb will not be
liable for any damage or loss caused by or resulting from use of or reliance on any External Materials.
14. ARBITRATION AND EQUITABLE RELIEF.
(a) Individualized Dispute Resolution and Arbitration. This User Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and the rules of the American Arbitration Association (“AAA”). User and Superb mutually agree that all disputes, controversies, and claims between Users and Superb, including but not limited to: any and all claims arising out of or relating to this User Agreement, User’s classification as an independent contractor, User’s provision of services to Superb or its clients, the payments received by User, the termination of this Agreement and/or the termination of User’s access to the Platform, and all other aspects of User’s relationship with Superb, past, present or future, whether arising under federal, state or local statutory and/or common law (including without limitation disputes regarding any wage-hour law, trade secrets, unfair competition, compensation, expense reimbursement, discrimination or harassment and claims arising under the Defend Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims) (the “Claims”) are subject to binding arbitration in the state where the User resides or the Facility is located. Further, except as provided in Chapter 4 of the Federal Arbitration Act (9 U.S.C. §§ 401, et seq.), covered Claims include any claim or controversy regarding this User Agreement or its interpretation, enforceability, applicability, unconscionability, arbitrability or formation, or whether the User Agreement or any portion of it is void or voidable. Notwithstanding the
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foregoing, this arbitration provision does not cover claims of sexual harassment under applicable federal, tribal or state law or nonconsensual sexual act or sexual contact, as such terms are defined in 18 U.S.C. § 2246 or similar tribal or state law, including when the victim lacks capacity to consent. The scope of this provision applies to all Claims against Superb, its successors or assigns, or any of the current or former officers, directors, principals, shareholders, owners, employees, or agents of any of them. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction in the state where the arbitration takes place as determined by this section. The arbitrator will have the power to rule on their own jurisdiction, including any issues concerning the existence, validity, or scope of either this User Agreement or this arbitration provision, including whether any Claims are subject to arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. The arbitrator will not be bound by rulings in any prior arbitrations not involving the same Parties, even if they involved the same or similar claims.
(b) Individual Basis. User agrees to resolve any dispute in arbitration on an individual basis only, and not on a class, consolidated, representative or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis and there will be no right or authority for any dispute to be brought, heard, or arbitrated as a class action, collective action, representative action, other multi-party or consolidated action, or any other action on behalf of or together with individuals other than yourself (“Class Action Waiver”).
(c) Demand for Arbitration. All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must deliver a written demand for arbitration within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought.
(d) Selection of Arbitrator. The arbitration of all Claims will be conducted by a single arbitrator, who shall be selected using the following procedure: (i) the AAA will send the Parties a list of seven potential arbitrators; (ii) if the Parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to three candidates, and ranking the remaining candidates in order of preference; (iii) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (iv) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. All arbitrators appointed pursuant to this process are subject to the disclosure and disqualification procedures set forth in the AAA rules and any applicable state laws or rules.
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(e) Exceptions to Arbitration Provision. This arbitration provision shall not apply to Claims that are not subject to pre-dispute agreements to arbitrate. Nothing in this User Agreement prevents User from making a report to or filing a claim or charge with a government agency. Nothing in this User Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this User Agreement. This User Agreement also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this User Agreement. Nothing in this User Agreement prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Superb will not retaliate against a User for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act to the extent the National Labor Relations Act is held to apply.
(f) Independent Contractor Status. User agrees and acknowledges that entering into this User Agreement and by referencing the types of Claims covered by this Section of the User Agreement does not change User’s status as an independent contractor, in fact and in law; that User is not an employee of Superb; and that any disputes in this regard shall be subject to arbitration as provided in this Section of the User Agreement. User understands that their employment classification is that of a 1099 independent contractor. User recognizes they are responsible for their own tax obligations and do not receive the same benefits or protections as traditional W2 employees.
(g) Mutual Agreement to Arbitrate. User and Superb agree that all Claims arising between them will be subject to binding arbitration.
(h) Changes. Superb may modify, revise, or terminate the terms of this Section by giving you at least 30 days’ advance notice of the modification, revision, or termination. Any such modification, revision, or termination shall not be effective as to claims for which a demand for arbitration is or has been made prior to the effective date of the modification, revision, or termination.
15. GOVERNING LAW.
Unless otherwise specified herein, this User Agreement will be construed in accordance with and governed by the laws of the State of Delaware, without regard to conflicts of laws principles.
16. MISCELLANEOUS.
(a) Independent Contractors. The relationship between Superb and User established by the User Agreement is solely that of independent contractors. All of the terms and conditions of this User
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Agreement will be interpreted in light of that relationship. As an independent contractor, User will have no authority to bind Superb to any obligation, including no authority to sign agreements on behalf of Superb. There is no intention to create by this User Agreement an employer-employee relationship as between Superb and Healthcare Provider and no such employer-employee relationship shall be inferred or deemed to exist. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party. Superb has no control over the content or enforcement of any Facility Policies and will have no right to control or direct the details, manner or means by which Healthcare Provider accomplishes the results of the Professional Services performed pursuant to a Service Agreement with a Facility. User will use their own means and methods to perform the Professional Services. Superb will have no control over which Service Requests any Healthcare Providers choose to accept, how many hours or how many shifts or Service Requests that Healthcare Providers accept. A Healthcare Provider will be providing Professional Services to a Facility as the Facility’s independent contractor and not as an agent or employee of Superb.
(b) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of the User Agreement will be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party notifies the other in accordance with this Section:
(i) To Superb at the address set forth on the Platform.
(ii) Your physical address, fax number or email address as specified in the Registration Information.
(c) Assignment. User may not assign, or sublicense, assign or delegate any right or obligation under the User Agreement, by operation of law or otherwise, without the prior written consent of Superb. The User Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(d) Entire Agreement. The User Agreement contains the entire agreement between Superb and the User with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements between Superb and the User with respect to such subject matter. For avoidance of doubt, User is not a third-party beneficiary under Superb’s User Agreement or Superb’s agreements with any Facility, and Facility is not a third-party beneficiary under Superb’s User Agreement with any User.
(e) Severability. If any provision of the User Agreement is held to be invalid or unenforceable
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under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the User Agreement.
(f) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of the User Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(g) Force Majeure. Neither party will be liable for any failure to perform under the User Agreement to the extent due to any act of God, pandemic, lock down order, fire, casualty, flood, war, strike, lock out, failure of public utilities, acts or omissions of third party technology providers, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
B. HEALTHCARE PROVIDERS
1. Discretion and Relationship.
(a) Discretion to Use the Platform. Healthcare Provider retains complete and total discretion as to when you use and do not use the Platform. There are no set times or days during which you must use the Platform and you may choose not to use it all. Service Requests are posted through the Platform by Facilities, not Superb, and Healthcare Provider retains total and complete discretion as to which Service Requests you submit a Service Application for and which you do not. There is no requirement that you submit a Service Application to any Service Request or any minimum number of Service Applications you must submit; provided, however, Superb may remove you from the Network if you have not submitted a Service Application in more than two consecutive months.
(b) Discretion to Provide Services. Superb may not direct or control Healthcare Provider’s interactions with Facilities, your provision of Professional Services to Facilities, or your acts or omissions (for example, nothing herein requires you to wear or present any Superb branding in connection with performing Professional Services). The Network merely makes Service Requests visible to you, and you retain total and complete discretion as to when to use the Platform,
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whether to respond to any Service Requests, and your provision of Professional Services to Facilities. Moreover, Healthcare Provider and Superb acknowledge and agree that you retain total and complete discretion to provide other services or otherwise engage in any other business activities, including using software similar to the Platform provided by Superb’s competitors. Healthcare Provider and Superb further acknowledge and agree you may provide services to Facilities without use of the Platform and thus outside the scope of this Agreement.
(c) Service Requests Not Guaranteed. Superb does not and cannot guarantee that Facilities will post Service Requests, that any Facility will engage you to perform Professional Services, or that a Service Request will not be canceled by the applicable Facility even after Healthcare Provider is scheduled for a Service Request.
(d) Qualifications. Healthcare Provider represents that they are duly licensed (as applicable) and have the experience, qualifications, and ability to perform each Service Request they accept. Superb will use commercially reasonable efforts to allow only Healthcare Providers on the Network whose Qualification Data comply with state minimum standards as described in Exhibit A, and in doing so, will rely solely on what third-party sources provide and Healthcare Providers upload or attest to. Healthcare Provider agrees to provide other documentation of education and training as requested by Facility prior to performing Professional Services for a Service Request.
(e) Drug Free Workplace. Superb Shifts Inc. is committed to our community of healthcare workers and senior care facilities. As part of our commitment we unite in support of a Drug Free Workplace. Though Superb Shifts Inc. does not have or enforce a drug screening requirement we will follow the policies that are put in place throughout our communities at all times while still meeting appropriate employee classification of healthcare workers on our platform. By accepting Terms of Service you are agreeing to maintain a drug and alcohol-free status while working any shifts through the Superb Shifts Inc platform. Furthermore, you understand and consent to adhere to any drug screening policies implemented by the facilities where I have selected to provide my services. This may include undergoing a drug screen prior to your shift approval, a drug screen prior to your shift start, or a drug screen due to any suspicion or random screening if the facility would deem it appropriate.
(f) No Reimbursement. Superb does not and cannot reimburse Healthcare Provider for any expenses Healthcare Provider incurs as a result of their performance of Professional Services for Facilities. Superb will only, through the Network, forward Healthcare Provider the Professional Compensation owed to you by a Facility for the Professional Services provided pursuant to a Service Agreement.
(g) No Employment Relationship. In addition to the terms set forth above, HEALTHCARE
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PROVIDER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THERE IS NO EMPLOYMENT, PART-TIME EMPLOYMENT, CONSULTING, CONTRACTOR, PARTNERSHIP, OR JOINT VENTURE RELATIONSHIP WHATSOEVER BETWEEN HEALTHCARE PROVIDER AND Superb. Healthcare Provider acknowledges and agrees that you are not entitled to, and hereby elect not to participate in (on either a prospective or retrospective basis), any of the benefits that Superb makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and you hereby waive any rights to receive any such benefits).
(h) Consent to Text Messages Messages through the Superb Platform and Phone Calls. Healthcare Provider consents to receiving text messages and phone calls from Superb, or the Facilities, at the phone number provided in your Registration Information for the purpose of communicating information regarding Service Requests. You are solely responsible for any costs you incur when receiving text messages, including any carrier charges that apply for receiving such text messages.
(i) Insurance. By using the Platform and performing services, User recognizes that all potential liability or injury claims of negligence, misconduct or error, due to the actions of a Healthcare Provider, shall be the sole responsibility of the Healthcare Provider, not Superb. Because User acknowledges that they are independent contractors (not employees) of Superb, Healthcare Provider is responsible for insuring against any workplace injury. In connection with Healthcare Provider’s obligation, Superb requires Healthcare Providers to pay the fractional cost to maintain occupational injury insurance, which will be deducted from the Healthcare Providers’ Professional Compensation.
(j) Obligations of Superb. Should Healthcare Provider not show for a Service Request, fail to complete a Service Request, or have any sentinel event at a Facility that is reported per the
requirements of this User Agreement, or conduct services in such a manner to discredit the Network, Superb has the ultimate right and sole discretion to report and disclose such information to Facilities so that Facilities may make informed decisions as to its selection of Professionals to complete Service Requests.
2. Registration Information.
(a) Maintaining Accuracy. User represents and warrants that (i) any health-care related license numbers (e.g. Registered Nurse license number) (“Licenses”) User provides in your Registration Information or otherwise are valid and in force, (ii) such License(s) will remain in full force for
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so long as you submit Service Applications for Service Requests requiring any such License(s), and (iii) User will notify Superb and all Facilities that you have agreed to perform future Professional Services for if you: (a) become suspended or barred from practicing in any jurisdiction, (b) lose any of your License(s), (c) are facing disciplinary actions, including suspension, or (d) make any changes to your Registration Information.
(b) Verification. Superb reserves the right to independently verify your Registration Information and any other statements you make on the Network for the purpose of verifying that those statements are accurate and complete (“Verification Purposes”). When Superb chooses to verify any such representations, statements or any information, User hereby authorizes Superb, either directly or indirectly through third-party vendors or service providers, to attempt to verify such information, which verification may include, without limitation, conducting checks related to your health care registration and/or license, checks related to your background, and or checks with available public records for Verification Purposes. User hereby consents to any collection, use or disclosure in order to accomplish such verification, and agree to provide any authorization, documentation or information at User’s request to facilitate these processes. In completing any verification, Superb will rely fully on information obtained by the third party. Upon Verification results, Superb reserves the right to withhold access to any user with negative findings in precious or current professional licenses. Any disputes over information obtained by the third party must be directed to that third party, and not Superb.
(c) Background Information on Healthcare Providers. User agrees that User’s ability to provide Professional Services is subject to successful passing of a background check and which will be conducted by a third party engaged by Superb to provide background checks and will include
identity verification, sex offender registry checks, national criminal records check, and state and county criminal records check, as permissible under and in accordance with applicable law. User agrees that if there are any new changes to criminal background or behavior that includes theft, mistreatment, violence or abuse, or drug charges or any incarceration that user will inform Superb Shifts Inc.
Superb’s third-party provider will separately provide you with additional information regarding this background check, including appropriate notice and authorization forms. Additional background checks may be required from time to time to remain eligible to provide Professional Services. If a User is the subject of a background check, or identity verification, the User may contact the third-party provider to dispute the accuracy, timeliness or completeness of such information. Superb reserves the right to suspend or terminate Users’ access to the Network and Platform based on information in the background checks or identity verifications.
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Superb will use commercially reasonable efforts to obtain credentialing information and background checks for each Healthcare Provider from the Healthcare Provider as well as the third-party sources listed in Exhibit A (“Qualification Data”) before accepting the Healthcare Provider to its platform and prior to Healthcare Providers’ initial placement at a Facility.
Superb MAKES NO REPRESENTATION OR WARRANTY THAT THE QUALIFICATION
DATA IS ACCURATE OR COMPLETE. QUALIFICATION DATA IS BASED SOLELY ON INFORMATION THAT IS AVAILABLE FROM THIRD-PARTY SOURCES. Superb DOES NOT INDEPENDENTLY VERIFY THE QUALIFICATION DATA OBTAINED FROM THIRD-PARTY SOURCES.
3. Professional Payment and Insurance Terms.
(a) Payment of Fees. For each Completed Service that Healthcare Provider performs, Healthcare Provider will receive from the Facility, by way of the Network, the applicable Professional Compensation. You will enter your current bank account information within your Account, and you agree that Superb’s third-party payment processors and Superb may transfer to such bank account the Professional Compensation you are owed, if any, which shall not contain the applicable Service Fee, with respect to each Completed Service that you perform. Professional Compensation owed to you will be deposited in your bank account within a reasonable time of a Service Request for which you provided Professional Services being marked as a Completed Service on the Platform. Healthcare Provider, and not Superb, is solely responsible for the accuracy of your bank account information, including your bank account number and routing information. Superb hereby disclaims all liability related to errors in fund deposits due to inaccurate or incomplete bank account information. Superb reserves the right to withdraw funds from your account in the event of an accidental payment or overpayment.
(b) Taxes. Healthcare Provider, as an independent contractor, is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to your performance of Professional Services or any other fees in connection with Professional Services. Healthcare Provider is exclusively liable for complying with all applicable federal, state, and local laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to you by Facilities in connection with a Completed Service or otherwise received by you through the Network. Superb will not withhold or make payments for taxes, social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance (except as described below) on your behalf. Healthcare Provider hereby agrees to indemnify and defend Superb against any and all such taxes or contributions, including
penalties, interest, attorneys’ fees and expenses. Superb cannot and does not offer tax advice to Users. However, as a courtesy to Healthcare Provider, Superb (through a contract with an
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independent third-party vendor) will withhold or make payments for taxes Healthcare Provider
might owe as an independent contractor. Such payments shall be from the compensation owed to Healthcare Provider from Facilities and by agreeing to the terms of this User Agreement. Healthcare Provider explicitly authorizes Superb, through this third-party vendor, to deduct, withhold, and make such tax payments for and on Healthcare Provider’s behalf.
C. HOME CARE SPECIFIC
(a) Services Provided. Home Care will differ from in facility care as the Healthcare Provider will
be on site with residents. Healthcare Provider professionalism and quality of service provided is
essential to all shifts and crucial to Home Care Shifts.Location for Home care will be listed as a cross Intersection at the time the shift is selected. Once Selected, confidential information such as Name, address and phone number will be shared with the Healthcare Provider.It is the responsibility of the Home Care Organization to provide all necessary information in regard to Home Care Services to the Healthcare Provider.
(b) Service Responsibilities Healthcare provider responsibilities will be listed in Shift Details
All services are to be provided ON SITE ONLY. Transportation of residents for any reason is out of the scope of Home Care Services, and is impermissible and will result in access denied for any future shifts with Superb Shifts Inc.
1. No Driving with residents
2. No leaving the property with residents on foot
3. No errand running for residents
(c) Confidentiality Healthcare Provider is responsible for reviewing and completing the care plan for residents while on shift as well as how to document shift service details. The Healthcare Provider will be provided a packet with specific information for shift services for the resident. Shift details will include information on how to document or chart for the Home Care company resident is listed for.
(d) Rights and Responsibilities It is the responsibility of the Healthcare Provider and the Home Care Organization to communicate about location, contact information, and the care plan.The Healthcare Provider will need to contact the Home Care Organization for any issues related to treatment decisions, concerns, or grievances.
Superb MAKES NO REPRESENTATION OR WARRANTY THAT THE QUALIFICATION DATA IS ACCURATE OR COMPLETE. QUALIFICATION DATA IS BASED SOLELY ON INFORMATION THAT IS AVAILABLE FROM THIRD-PARTY SOURCES. Superb DOES NOT INDEPENDENTLY VERIFY THE QUALIFICATION DATA OBTAINED FROM THIRD-PARTY SOURCES. Superb reserves the right to impose alternative requirements for different roles and/or Service Requests in order to comply with state minimum standards. Should
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a Facility need additional requirements in addition to the applicable minimum state standards for any Healthcare Provider to perform services at the Facility, those additional requirements must be requested by the facility. If a facility should have additional requirements a notification for acknowledgement will be provided at the time of shift selection.
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Exhibit A
Qualification Data and Protected Health Information
1) Healthcare Provider Must Upload and Attest to Superb:
○ Driver’s License or state photo ID
○ Active Healthcare license information
○ Resume or last 3 employers
○ Medical Records including:
Annual Physical or complete the physical health screening
Hepatitis B- vaccines series or positive titer or signed Acknowledgement
c) TB- negative PPD test, Negative QuantiFeron, Negative T SPOT or complete Screening Questionnaire
d) COVID vaccine documentation or signed opt out form
○ Certifications
a) CPR
○ W-9
○ ICRF
○ Signed competencies
○ Signed Private Health Information Acknowledgement (Superb Shifts Inc. and Facilities signed under Facility Agreement will use Qualification Data or Protected Health Information ( PLI) for the purpose of employment related documentation only)
2) Superb will obtain the following information from third-party resources regarding the qualifications of Healthcare Providers:
○ Background Check;
a) Access to Superb Shifts Platform will be withheld should findings result in any pending charges, open cases, or convictions of:
▪ Theft over $750
▪ Abuse or Neglect of an adult or a child
▪ Other Charges and Convictions based on severity
b) Access to Superb Shifts Platform may be withheld should findings result in any charges, open cases, or convictions against an individual that are considered incompatible with the standards expected of a healthcare worker in a care setting
○ Professional License
○ Necessary state caregiver registry verifications for each Healthcare Provider required to comply with state minimum standards
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Exhibit B
Healthcare Provider Fees
1. Platform Repost Fee. Healthcare Provider shall pay the Platform Repost Fee as specified in this Agreement. The Platform Repost Fee is $10. Healthcare provider will be charged $10 when a shift is canceled prior to 24 hours before shift start time and will be charged to their bank account linked in Superb’s payment system.
2. Cancellation Fee. Healthcare Provider shall pay the Cancellation Fee as specified in this Agreement. The Cancellation fee is $100 for any scheduled shift that is canceled 0 - 24 hours prior to the shift start time, the Healthcare Provider will be charged $100 to their bank account linked in Superb’s payment system.
3. Late or Delay of Service ( with Notice to Superb) Fees.
Level I Delay of Service Fee Healthcare Provider shall pay the Level I Delay of Service Fee as specified in this Agreement. The Level I Delay of Service Fee is $10 for any scheduled shift that Healthcare Provider is late 30-60 minutes after the shift start time, the Healthcare Provider will be charged $10 to their bank account linked in Superb’s payment system
Level II Delay of Service Fee Healthcare Provider shall pay the Level I Delay of Service Fee as specified in this Agreement. The Level I Delay of Service Fee is $20 for any scheduled shift that Healthcare Provider is late 60-90 minutes after the shift start time, the Healthcare Provider will be charged $20 to their bank account linked in Superb’s payment system.
Late or Delay of Service by more than 90 minutes of the scheduled shift start time, will be considered a cancellation of shift and Healthcare Provider will be charged a Shift Cancellation Fee of $100 to their bank account linked in Superb’s payment system
4. Late or Delay of Service ( without Notice to Superb) Fees. In the event the Healthcare Provider DOES NOT notify Superb of a delay to their service by ANY amount of time over 15 minutes and the facility no longer wants their services the Healthcare Provider will be considered a cancellation and charged a Shift Cancellation Fee of $100 to their bank account linked in Superb’s payment system.
5. No Call No Service Fee. In the event the Healthcare Provider shall pay the No Call No Service fee as specified in this agreement. The No Call No Service Fee is $200. Healthcare Provider will be charged $200 when No Call or contact has been made to Superb stating they will not service their scheduled shift. $200 will be charged to their bank account linked in Superb’s payment system. If the Healthcare Provider was Denied Access to a facility after a No Call No Service or ANY other reason,all future shifts previously selected at that facility will be canceled. There will be no additional cancellation fees or Platform Repost Fees deducted or or paid out to the Healthcare Provider for that facility.
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CONTINGENCY USER AGREEMENT
This Contingency User Agreement (“User Agreement”) is made and entered into by and between you (or, if you are entering on behalf of a company or other legal entity, such entity, including any successors, assigns, and third party beneficiaries) (“User,” “you” or “your”), and
Superb Shifts, Inc. (“Superb”), effective as of the earlier of the date you click “Accept,” first access or use the Service, or otherwise indicate your assent (“Effective Date”).
1. Scope of Services
Superb will provide recruitment services for various healthcare positions as requested by affiliated facilities ("Community") on a contingency basis. This Agreement allows the Healthcare Provider to be considered for long-term, or permanent employment opportunities within the Community. Superb solely acts as a recruitment facilitator and not as an employer of the Worker once hired by the Community.
2. Employment Status
The Healthcare Provider acknowledges that Superb does not serve as the employer. Should the Healthcare Provider be hired by a Community through Superb’s platform, the Healthcare Provider will become a direct employee of the Community. Superb holds no further responsibilities in the employment relationship beyond recruitment.
3. Non-Circumvention
The Healthcare Provider agrees not to bypass Superb by accepting direct employment from any Community without the involvement of Superb following an introduction made by Superb.
4. Trial Period
The Worker may be subjected to a trial period ("Trial Period") by a Community, during which both the Community and the Healthcare Provider can evaluate the suitability of the arrangement. The number of shifts in the Trial Period may vary depending on the specific needs and circumstances of the Community. During this Trial Period, the Healthcare Provider will assess whether the Community aligns with their professional expectations, and the Community will evaluate the Worker’s performance.
Superb shall compensate the Healthcare Provider in accordance with the terms outlined in the existing Network User Agreement. During this Trial Period, User agrees and acknowledges that entering into this User Agreement and by referencing the types of Claims covered by the Network User Agreement does not change User’s status as an independent contractor, in fact and in law; that User is not an employee of Superb; and that any disputes in this regard shall be subject to arbitration as provided in the Network User Agreement.
If the Healthcare Provider is deemed unsuitable during this period, the Community may cancel the engagement and request a replacement Healthcare Provider from Superb.
Upon successful completion of the Trial Period, the Healthcare Provider may be hired. If the Healthcare Provider is subsequently hired by the Community and remains employed for a minimum of 30 days, the Worker will receive a bonus payment of $250.
5. Legal Responsibility
Once the Healthcare Provider is employed by the Community, all employment-related obligations, including payroll, benefits, and legal liabilities, rest with the Community.
6. Notification of Hiring
The Healthcare Provider agrees to notify Superb in writing within 24 hours of accepting an offer of employment from any Community introduced by Superb. Failure to notify Superb will be considered a breach of this Agreement and may result in a penalty of $500 or forfeiture of any bonus payments, including but not limited to the $250 hiring bonus, as outlined herein.
7. Injunctive Relief
Superb retains the right to seek injunctive relief or other legal remedies in cases where the non-circumvention or candidate ownership terms are breached.
8. Termination of Superb’s Responsibility
After the Healthcare Provider is successfully employed by the Community, Superb’s responsibility is terminated, and the Community assumes full management and supervisory roles for the Healthcare Provider.
9. Exclusivity and Non-Exclusive Nature
Neither the Community nor the Healthcare Provider are exclusively obligated to use Superb’s services. Superb retains the right to provide services to multiple Communities, and the Healthcare Provider may engage with other agencies or opportunities.
10. Confidentiality
The Healthcare Provider agrees to keep all information related to job requirements, Community operations, and candidate information confidential.
11. Governing Law
This Agreement is governed by the laws of the state in which the Community resides.
12. Modifications
Any modifications to this Agreement must be made with at least 30 days’ notice and will not affect claims made prior to such changes.