OnShift Products Terms of Use

Last Revised: February 15, 2019

The OnShift suite of products, which includes, but is not limited to OnShift Schedule, OnShift Engage, OnShift Wallet, OnShift Insight, OnShift Hire, OnShift Text2Hire and OnShift’s Payroll-Based Journal reporting software (the “Products”) are published, owned, and operated by OnShift, Inc., its affiliates and related entities (“OnShift,” “the Company,” “we,” “us,” and “our”).  These Terms of Use (the “Terms”) govern your access to and use of the Products. 

IMPORTANT – BY SIGNING UP AS AN INDIVIDUAL USER OF THE PRODUCTS (“USER,” “YOU,” “YOUR”) YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS OF USE. FURTHERMORE, IN THE EVENT YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT ALL SUCH USE OF THE PRODUCTS ON YOUR BEHALF IS SUBJECT TO THIS AGREEMENT, INCLUDING ANY CUSTOMER MASTER SERVICES AGREEMENT, CUSTOMER ENTERPRISE TERMS OF SERVICE, ANY RELATED ORDER FORM, ANY STATEMENT OF WORK AND ANY APPLICABLE CUSTOMER POLICIES AND PROCEDURES PERTAINING TO THE USE OF THE PRODUCTS.

IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT THESE TERMS OR USE THE PRODUCTS.

By accessing, browsing, submitting information to and/or using the Products, you agree and acknowledge on your own behalf that you have read, understand and agree to be bound by these Terms and to comply with all applicable laws including, without limitation, all federal, state and local tax and tariff laws, regulations, and/or directives.

Purpose of the Products.  OnShift provides the Products to deliver commercial business-to-business software as a service (“SaaS”) application to solve workforce challenges in healthcare. The information provided in these Terms is intended to be general in nature and does not necessarily address all the terms, exclusions, and conditions applicable to our products and services, or the terms of any agreement with your employer.   

We do not warrant the accuracy, completeness, or usefulness of this information at any particular time.  Any reliance you place on such information is strictly at your own risk. OnShift disclaims all liability and responsibility arising from any reliance placed on such content by you or any other user of our Products, or by anyone who may be informed of any of its contents. Any information you provide or that is collected by OnShift through the Products shall be handled in accordance with the Products’ Privacy Policy, which is hereby incorporated by reference.

OnShift is not a healthcare provider, payer or clearing house.  OnShift is a business that provides intuitive software and proactive services to solve workforce challenges in healthcare.  Unless otherwise established in an agreement between OnShift and a Covered Entity (i.e., a doctor, pharmacy, or insurer), OnShift is not a Covered Entity or Business Associate and does not comply with the Health Insurance Portability and Accountability Act (“HIPAA”).  OnShift does not collect “Protected Health Information” as defined under HIPAA, nor should you enter or provide such information in any of our Products. 

License and Use of Products.  OnShift grants you a non-exclusive right to access and use the Products and the data, material, content or information herein (collectively, the “Content”) solely for your use in connection with or under your terms of employment with your employer. Your right to access and use the Products shall be limited to non-commercial purposes unless you are otherwise expressly authorized by OnShift to use the Products for commercial purposes. You agree to use the Products only for lawful purposes, comply with all rules governing any transactions on and through the Products and comply with applicable laws.

OnShift shall have a non-exclusive, non-transferable, worldwide, perpetual, irrevocable license to collect, analyze or use statistical data relating to Products solely for the management and improvement of its Products.  OnShift’s use, collection and disclosure of the any User information shall comply with applicable law and the posted terms of our Privacy Policy.

User Account Responsibility.  If you are given or create a password to access the Products, you are responsible for maintaining the confidentiality of your account and your password.  You are responsible for all activities that occur under your account and you agree to notify OnShift immediately of any unauthorized use of your account.  OnShift is not responsible for any loss that you may incur as a result of any unauthorized person using your account or your password.

Prohibited Uses
.  You agree that you will not:

·      Use the Products in any manner that could damage, disable, overburden, or impair the Products or interfere with any other party’s use and enjoyment of them;

·      Attempt to gain unauthorized access to any Product account, computer systems or networks associated with OnShift or the Products;

·      Obtain or attempt to obtain any materials or information through the Products by any means not intentionally made available or provided by OnShift;

·      Use any robot, spider, or other automatic device, process or means to access the Products for any purpose, including monitoring or copying any of the material on the Products;

·      Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;

·      Attack the Products via a denial-of-service attack or a distributed denial-of-service attack; or

·      Impersonate or attempt to impersonate OnShift, an OnShift employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).


Notice and Consent to Receipt of Text (SMS) Messaging and Phone Calls.
  You may have the opportunity to receive SMS or "text" messages, pre-recorded voice messages or auto-dialed phone calls or other notifications from OnShift for the purposes of providing you informational updates about services or Products you may have requested, including employment related communication. In providing your mobile device number or cell phone number to OnShift, you knowingly consent to such communications from OnShift or for OnShift to use your cell phone number or mobile device number in accordance with OnShift’s Products’ Privacy Policy. You represent that you have the authority to agree to receive text messages at the telephone number that you provide to OnShift, or from which you sent the text message request to us. You further acknowledge that no purchase is required to opt into this service, and you may opt out at any time by following instructions from OnShift and as described in the Products’ Privacy Policy.

Not all mobile devices or handsets may be supported by this service. OnShift and any mobile carriers are not liable for delayed or undelivered messages. Message and data rates may apply to any text messages. Message frequency depends on the nature of your use and requests and your employer’s use of the Products. You hereby agree to be responsible for all costs, charges and fees you incur from your service or device provider as a result of choosing to receive such messages from OnShift.

Third-Party Sites.  The Products may contain links to websites controlled or operated by persons and companies other than OnShift (“Linked Sites”). Linked Sites are not under the control of OnShift, and OnShift is not responsible for the contents of any Linked Site, including without limitation any link contained on a Linked Site, or any changes or updates to a Linked Site. OnShift is not responsible if the Linked Site is not working correctly or for any viruses, malware, or other harms resulting from your use of a Linked Site.  OnShift is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by OnShift of the site or any association with its operators.  You are responsible for viewing and abiding by the privacy policies and terms of use posted on the Linked Sites.  You are solely responsible for any dealings with third parties who support OnShift or are identified in the Products, including any delivery of and payment for goods and services.

Third-Party Applications.  You acknowledge that your access and use of any third-party applications or software on our Products and Content (the “Third-Party Applications”) is at your discretion and risk, and OnShift has no liability to you arising from your use of the Third-Party Applications.  OnShift hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-Party Applications, and you agree to indemnify and hold OnShift harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with the use or performance of the Third-Party Applications.

For example, one such third-party application is PayActiv, which provides banking services and functionality in support of our OnShift Wallet Product.  While OnShift and its Customers contract with PayActiv to provide such OnShift Wallet services, your use of PayActiv as part of the OnShift Wallet is also subject to PayActiv’s terms of use and any posted privacy policy.  PayActiv’s terms of use are available here:  PayActiv Terms of Use. 

Intellectual Property Notices.  The Products and Content are protected by copyrights, trademarks, patents, or are subject to other proprietary rights. “OnShift” is a trademark federally registered with the United States Patent and Trademark Office, and names such as “OnShift Schedule”, “OnShift Engage”, and “OnShift Insight” are trademarked.  Accordingly, you are not permitted to use the Products or Content in any manner, except as expressly permitted by OnShift in these Terms. The Products or Content may not be copied, reproduced, modified, reverse-engineered, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives with the express written consent of OnShift or applicable owner.

You acknowledge and agree that you are solely responsible for complying with the applicable restrictions on use of all Content, copyrighted materials and trademarks that you see, hear, and use on the Products. You understand that any unauthorized use of such intellectual property would result in irreparable injury for which money damages would be inadequate.  You further acknowledge that, in the event of any such unauthorized use, OnShift or the applicable intellectual property owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use. 

Questions regarding the use of any intellectual property provided on the Products should be directed to support@onshift.com.


United States and Canada Only
.  OnShift is based in the state of Ohio in the United States. OnShift provides the Products for use only by persons located in the United States and Canada. We make no claims that the Products or any of their contents are accessible or appropriate outside of the United States or Canada. Access to the Products may not be legal by certain persons or in certain countries.

Disclaimer
.
  ALL INFORMATION OR SERVICES PROVIDED BY ONSHIFT TO YOU VIA THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. ONSHIFT AND ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, ONSHIFT AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE PRODUCTS OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE PRODUCTS. YOU SPECIFICALLY ACKNOWLEDGE THAT ONSHIFT AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE PRODUCTS AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER ONSHIFT NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE PRODUCTS WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. ONSHIFT FURTHER MAKES NO WARRANTY THAT THE PRODUCTS WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE PRODUCTS IS AT YOUR SOLE RISK AND THAT ONSHIFT, ITS AFFILIATES AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE PRODUCTS OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST ONSHIFT FOR DISSATISFACTION WITH THE PRODUCTS OR THE CONTENT IS TO CEASE YOUR USE OF THE PRODUCTS AND/OR THE CONTENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION.  WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.

Limitation of Liability
. UNDER NO CIRCUMSTANCES SHALL ONSHIFT OR ANY OF ITS THIRD-PARTY LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR PROGRAMS ON YOUR DATA HANDLING SYSTEM, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THE PRODUCTS, OR THE CONTENT, DATA, OR INFORMATION ACCESSED VIA THE PRODUCTS OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE PRODUCTS, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF ONSHIFT OR ITS THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY ACCESSING THE PRODUCTS SUBJECT TO THESE TERMS OF USE, YOU UNDERSTAND THAT YOU ARE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST MATERIALLY AFFECT HIS OR HER SETTLEMENT WITH THE DEBTOR.”

Indemnity. You agree to defend, indemnify and hold harmless OnShift and its affiliates, licensors and service providers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Products, including, but not limited to, any use of the Content or services other than as expressly authorized in these Terms or your use of any information obtained from the Products.

Termination and Restriction of Access. In its sole discretion, OnShift may terminate or suspend your access to the Products for breach of these Terms. OnShift reserves the right to report any User found to have violated these Terms or otherwise misused the Products to the offending User’s employer.  OnShift shall not be liable for any losses or damages arising from any such termination of service, or notification of any employer of misuse of the Products or violation of these Terms.

Arbitration.  At its sole discretion, OnShift may require you to submit any disputes arising from use of the Products, or breach of these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Ohio law.  By using the Products, you hereby consent to submission of any dispute to be final and binding arbitration.

Limitation on Time to File Claims.  Any cause of action or claim you may have arising out of or relating to these Terms or the Products must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.

Governing Law & Jurisdiction.  These Terms are governed by the laws of the State of Ohio, U.S.A.  You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in Cleveland, Ohio, U.S.A. in all disputes arising out of or relating to the use of the Products.

Changes to these Terms of Use. OnShift may update or change these Terms from time to time in order to reflect changes in any offered services, changes in the law, or for other reasons as deemed necessary by OnShift. The effective date of any Terms will be reflected in the “Last Revised” entry at the top of these Terms.  Your continued use of the Products after any such change is communicated shall constitute your consent to such change(s).

General. You agree that no joint venture, partnership, employment, or agency relationship exists between you and OnShift as a result of these Terms or use of the Products.  You may not assign these Terms without the prior written consent of OnShift in all instances.  OnShift may assign these Terms, in whole or in part, at any time.  OnShift’s performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of OnShift’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Products or information provided to or gathered by OnShift with respect to such use. 

If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in effect. 

These Terms, including the Privacy Policy and all other documents expressly incorporated herein by reference, constitute the entire agreement between you and OnShift with respect to the Products, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and OnShift. A printed version of these Terms and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 


OnShift Contact Information
.  Questions can be directed to OnShift at support@onshift.com.