Terms and Conditions of Use of Pivot Health Site and Services

Dated: April 25, 2017
Thank you for visiting the Pivot Health website, www.pivothealth.co (the “Site”) owned and operated by Pivot Health Company (“Pivot Health,” “we,” or “our”). You should not access nor use this Site until you have carefully read and agreed to these terms and conditions, which consist of three sections: (i) terms applicable to all Users of the Site (the “Site Use Terms”), (ii) terms applicable only to the job seeker (the “Job Seeker Terms”) and (iii) terms applicable only to Clients (the “Client Terms”). For the avoidance of any doubt, both the Site Use Terms and the Job Seeker Terms apply to all Job Seeker categories, and both the Site Use Terms and the Client Terms apply to the Clients (collectively the Site Use Terms, the Job Seeker Terms and the Client Terms may be referred to as the “Terms”).

Pivot Health provides the Site, an online platform linking job seekers looking to provide professional services in permanent roles (the “Job Seeker Services”) and health care facilities seeking to engage Job Seeker to perform the Job Seeker Services on their behalf. “User,” “Users,” “you,” or “your” refer to all persons who access or use the Site, including but not limited to Job Seekers and Clients. “Job Seeker” refers to those individuals (e.g. advanced practice providers, nurses, physicians, etc.) who registered with Pivot Health through the Site to provide Job Seeker Services on behalf of Clients. “Client” or “Clients” refer to those health care facilities that registered with Pivot Health through the Site to engage Job Seekers to provide Job Seeker Services on their behalf.

The Terms govern the permitted and prohibited access to and uses of the Site and the respective rights of Pivot Health and the Users with regard to the Site. Pivot Health provides you with access to and use of the Site subject to your compliance with the Terms. The provisions contained herein supersede all previous notices or statements regarding our Terms.

By visiting the Site, you and other Users agree to the Site Use Terms. If you do not agree to the Site Use Terms, you may not access or use the Site. We may modify the Site Use Terms from time to time without notice to you by posting revised Site Use Terms on the Site with a new effective date. We include the effective date of our Site Use Terms at the top of the Site Use Terms. We encourage you to check our Site frequently to see the current Site Use Terms in effect and any changes that may have been made to them. By visiting the Site following any modifications to the Site Use Terms, you agree to be bound by such modifications.

We may modify the Job Seeker Terms or Client Terms as required by the development of our business and with notice to the respective Job Seekers or Clients. We include the effective date of our Job Seeker Terms and Client Terms at the top of the respective Job Seeker Terms and Client Terms. Such modifications to the Job Seeker Terms or Client Terms shall take effect, and be binding on Job Seekers and Clients, respectively, thirty (30) days after such notification.

You agree to comply with all applicable laws, rules and regulations in connection with your access and use of the Site.

A. SITE USE TERMS

Effective Date: April 25, 2017

  1. User Age and Access. By submitting information through the Site, you represent that you are a United States resident over the age of 18.
  2. License. The Site, including all of its contents, such as text, images and the HTML used to generate the pages (“Materials”), is our property or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from the Site in whole or in part, for any public or commercial purpose without the specific written permission of Pivot Health. We grant you a personal, non-exclusive, non-transferable license to access our Site and to use the information contained here. In turn, you grant us a non-exclusive, royalty-free license to use any content you post on the Site for any purpose, subject to the express terms of the Terms.
  3. Rules and Limits on and Modifications to the Site. We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
    1. Specific Prohibited Uses. The Site may be used only for lawful purposes. You are responsible for your own communications, including the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through the Site. Pivot Health specifically prohibits any use of the Site, and requires all Users to agree not to use the Site, for any of the following:
      1. Posting any information that is incomplete, false, inaccurate or not your own;
      2. Impersonating another person;
      3. Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or that fails to comply with accepted Internet protocol;
      4. Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
      5. Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
      6. Posting material that infringes on any other intellectual property, privacy or publicity right of another;
      7. Transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of United States export control laws; and
      8. Attempting to interfere in any way with the Site’s or Pivot Health’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system.
    2. Security Rules. Violations of system or network security may result in civil or criminal liability. Pivot Health will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the User or Users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:
      1. Accessing data not intended for such User or logging into a server or account that User is not authorized to access;
      2. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
      3. Attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “mail-bombing,” or “crashing,” or sending unsolicited e-mail, including promotions and/or advertising of products or services; or
      4. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
  4. Privacy Policy; User Information. In the course of your use of the Site, you may be asked to provide certain information to us. Pivot Health’s use of any information you provide via the Site shall be governed by our Privacy Policy (please refer to Privacy Policy Statement on the Site). We urge you to read our Privacy Policy. You acknowledge and agree that you are solely responsible for the accuracy and content of such information.
  5. International Use. We control and operate the Site from our servers provided by Amazon Web Services (“AWS”). We do not represent that Materials on the Site are appropriate or available for use in other locations. Users who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
  6. Proprietary Rights. As between you and Pivot Health (or other company whose marks appear on the Site), Pivot Health (or the respective company) is the owner and/or authorized user of any information on the Site, unless otherwise indicated. Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or Materials you may access on the Site and you may not modify, rent, lease, lend, sell, distribute or create derivative works of such Content, features or Materials, in whole or in part. No Material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the Site. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise authorized by Pivot Health. If you make use of the Site, other that as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any User of our trademarks, registered trademarks, service marks, copyrightable material or intellectual property by including them on the Site.

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

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

    Without Pivot Health’s prior permission, you agree not to display or use the Pivot Health brand in any manner. Nothing on the Site should be construed to grant any license or right to use any Pivot Health brand without the prior written consent of Pivot Health.

  7. Links from and to the Site. You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by Pivot Health in any way and Pivot Health is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Pivot Health’s endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall Pivot Health be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site’s administrator or Webmaster. Pivot Health reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different Users. Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link and to require termination of any such link to the Site, at our discretion at any time.
  8. Indemnity. You agree to defend, indemnify and hold Pivot Health, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with your use or misuse of the Site, your violation of the Site Use Terms or the posting or transmission of any materials on or through the Site by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right. Job Seekers and Clients may have separate indemnity obligations pursuant to the Job Seeker Terms or the Client Terms.
  9. DISCLAIMER OF WARRANTIES REGARDING SITE. YOU UNDERSTAND AND AGREE THAT:
    1. THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTION AND MATERIALS, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PIVOT HEALTH DOES NOT WARRANT THAT THE SITE OR THE FUNCTIONALITY, CONTENT OR MATERIALS MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. PIVOT HEALTH MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE OPERATION OF THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
    2. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
    3. PIVOT HEALTH DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SITE. PIVOT HEALTH IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTIES THAT IS WITHOUT THE DIRECT INVOLVEMENT OF PIVOT HEALTH.
  10. LIMITATION OF LIABILITY. IN NO EVENT SHALL PIVOT HEALTH, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF PIVOT HEALTH OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF PIVOT HEALTH TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE SITE USE TERMS OR YOUR ACCESS TO OR USE OF THE SITE EXCEED, IN THE AGGREGATE, $500.00.
  11. Severability; No Waiver. If any provision of the Terms is held to be contrary to law, such provision shall be deemed valid only to the extent permitted by law, and all other provisions shall continue in full force and effect. Pivot Health’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall Pivot Health’s waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default.
  12. Governing Law. The Terms are enforceable pursuant to and in accordance with the laws of the State of Washington. Any dispute arising out of the Terms shall be decided by a court of competent jurisdiction in King County, Washington.
  13. Successors and Assigns; No Assignment. The Terms shall be binding upon, and shall inure to the benefit of, Pivot Health and the Users and their respective heirs, legal representatives, successors and assigns. Notwithstanding the foregoing, Job Seekers may not assign any of their rights or delegate any of their duties under the Job Seeker Terms without receiving the prior written consent of Pivot Health, which may be withheld at Pivot Health’s sole and absolute discretion.
  14. Headings. The subject headings of the sections of the Terms are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions.
  15. ARBITRATION. Except as prohibited by law, any dispute between Pivot Health and a User (or between Pivot Health or a User, on the one hand, and any officer, director, employee or affiliate of Pivot Health or a User, on the other hand) shall be resolved through binding arbitration in King County, Washington under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent Pivot Health or a User from filing charges with state or federal agencies. By using the Site, you agree that Such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and you waive right to bring class-wide, collective or representative claims before any arbitrator or in any forum. YOU UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES YOU ARE WAIVING ANY RIGHT THAT YOU MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of Pivot Health or a User’s right to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration.
  16. Consent to Processing. By providing any personal information to the Site, all Users, including without limitation Users in the European Union, fully understand and unambiguously consent to the collection and processing of such information in the United States. Any inquiries concerning the Terms should be directed to Pivot Health at the address below.
  17. Entire Agreement. The Terms, and any Order (defined below) entered into by you from time to time, constitute the entire agreement between you and Pivot Health relating to and governing your use of the Site, superseding any prior agreements between you and Pivot Health.
  18. Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between Pivot Health and you as a result of the Terms or your use of the Site.
  19. Time to Bring Claims. Any claim or cause of action you may have with respect to Pivot Health or the Site must be commenced within one (1) year after the claim or cause of action arose.
  20. Notices. Notices to Users may be made via either email or regular mail. The Site may also provide notices of changes to the Site Use Terms or other matters by displaying notices or links to notices to Users on the Site. All notices under the Job Seeker Terms and under the Client Terms must be in writing and will be deemed given when delivered personally or by confirmed facsimile or email, one (1) day after being sent by nationally recognized courier service, or three (3) days after being sent by prepaid certified mail, to the address of Pivot Health as set below or to such address as such Job Seeker or such Client last provided to the Pivot Health.
  21. Contacting Pivot Health. To contact us with any questions or concerns in connection with the Terms or the Site, or to provide any notice under the Terms to Pivot Health, please click the “Contact Us” link in the footer of the home page.

B. JOB SEEKER TERMS

Effective Date: April 25, 2017
For the avoidance of any doubt, capitalized terms not otherwise defined herein shall have the meanings given to them in the Site Use Terms.

  1. Account Registration and Suspension. Job Seekers who wish to accept Engagements (defined below) through the Site shall have registered an account with Pivot Health through the Site. Job Seekers will create an account by (1) entering at least one of several identifiers, including, but not limited to, first and last name or National Provider Identifier; (2) creating a profile or claiming and verifying the information in a pre-populated profile; and (3) creating a username and password. A Job Seeker with an active account may suspend his or her account at any time by contacting Pivot Health using the “Contact Us” link in the footer of the home page.
  2. Engagement. Job Seekers may from time to time accept Engagements presented to them through the Site to perform Job Seeker Services for Clients (each, an “Engagement”). For each Engagement, each Job Seeker, in consultation with a Client, shall be responsible for determining (i) such Job Seeker’s fees for his or her Job Seeker Services, (ii) such Job Seeker’s work schedule and coverage assignments, (iii) such Job Seeker’s number of hours worked, (iv) such Job Seeker’s number of patients served, if appropriate, (v) and other details related to the performance of the Job Seeker Services by such Job Seeker, all of which shall be set forth in an order (the “Order” or “Orders”), which shall be prepared by such Client and effective upon signing by such Client and such Job Seeker. The current template Order will be provided by the Client. Each Job Seeker hereby acknowledges that (x) Pivot Health is not collecting, exacting, charging or receiving a fee, in cash or in kind, from such Job Seeker for procuring, or attempting to procure, or assisting to procure employment, work or a situation of any kind for such Job Seeker; (y) Pivot Health may direct such Job Seeker to Clients that have requested that they be regularly introduced to Job Seekers with qualifications like such Job Seeker’s; and (z) Pivot Health may promote such Job Seeker to Clients, even if such Clients have not posted job listings for applicants similar to such Job Seeker.
  3. Pivot Health will maintain Professional Liability Coverage (the “Pivot Health Professional Liability Coverage”). The Pivot Health Professional Liability Coverage shall be provided through the Pivot Health company policy and shall be with limit amounts of not less than $1,000,000 annual aggregate. To the extent that liability under any judgment or settlement regarding the performance of Job Seeker Services by a Job Seeker exceeds these coverage limits, such Job Seeker shall hold Pivot Health and Clients harmless from the same. Pivot Health’s obligation to arrange for the Pivot Health Professional Liability Coverage for a Job Seeker is conditional upon each Job Seeker’s cooperation in completing, verifying and providing accurate and complete underwriting and licensing information to Pivot Health. Pivot Health will not provide any other insurance coverage including, but not limited to, any workers’ compensation insurance, general liability insurance or any other insurance other than the Pivot Health Professional Liability Coverage.
  4. Relationship of Job Seekers and Pivot Health.
    1. The Job Seeker Terms are not intended to create, nor shall be deemed or construed to create, any relationship between a Job Seeker and Pivot Health other than that of independent parties contracting with each other for the purpose of effecting the provisions of the Job Seeker Terms.
    2. Pivot Health shall neither have nor exercise any control or direction over the professional judgment, decision-making, or methods by which the Job Seekers perform the Job Seeker Services. Each Job Seeker shall be responsible for his or her own medical decisions and actions and shall indemnify Pivot Health and hold Pivot Health harmless from any Claims not covered by such Job Seeker’s individual professional liability insurance coverage that are incurred by Pivot Health arising out of, in connection with, or as a result of such Job Seeker rendering or failing to render Job Seeker Services, including Claims that such Job Seeker’s negligence, in whole or in part, caused the loss.
    3. Job Seekers shall not be required to subscribe for any publications or incidental services or contribute to the cost of Pivot Health’s advertising.
    4. Any obligations owed by Pivot Health to Job Seekers, including any payments required hereunder, are contingent upon Job Seekers being properly credentialed and obtaining the necessary privileges at the Clients. To the extent a Job Seeker fails to be credentialed and/or fails to obtain the necessary privileges in question, for any reason, Pivot Health shall have no obligations to such Job Seeker as set forth herein. Pivot Health shall not be responsible for a Client’s failure to properly credential and/or provide privileges to a Job Seeker for any reason.
  5. Job Seeker Professional Standards and Qualifications. Each Job Seeker shall comply with (i) all policies, procedures and guidelines of Pivot Health (the “Pivot Health Policies”), each as may be adopted or amended by Pivot Health from time to time, (ii) all federal, state and local laws, regulations and orders (collectively, the “Laws”) applicable to the Job Seeker Terms, any Order and the Job Seeker Services; and (iii) all standards of the applicable licensing boards, certifying authorities or professional specialty boards having jurisdiction from time to time (the “Boards”).
    1. Each Job Seeker (i) is and shall remain licensed to practice in the states in which such Job Seeker provides Job Seeker Services, (ii) has and shall maintain an unrestricted federal Drug Enforcement Administration registration and (iii) has and shall maintain any and all other licenses, permits, registrations, or other certifications as required by applicable Laws to provide the Job Seeker Services.
    2. In providing the Job Seeker Services, each Job Seeker shall exercise the degree of skill, diligence and knowledge normally possessed by members of the same profession in the states in which such Job Seeker provides the Job Seeker Services and conform to the standards of care of such states.
    3. Job Seekers shall not use illegal drugs or perform the Job Seeker Services while impaired by alcohol or any chemical substance.
  6. Notifications. Each Job Seeker shall notify Pivot Health in writing immediately upon the occurrence of any one or more of the following events:
    1. He or she is suspended, excluded or otherwise ineligible to participate in the Medicare program, a Medicaid program or any other federal health care program as such term is defined at 42 U.S.C. Title 42 § 1320a-7b (the “Government Health Care Programs”) or other third party payor programs;
    2. He or she is aware of any threatened, pending or final suspension, revocation, limitation, restriction or disciplinary action taken by a Board that has jurisdiction over him or her;
    3. He or she is denied membership and/or reappointment to the medical staff of any hospital or health care facility, or has such medical staff membership or clinical privileges suspended, limited, or revoked for a medical disciplinary cause or reason;
    4. He or she uses illegal drugs or performs the Job Seeker Services while impaired by or under the influence of any chemical substance; or
    5. He or she violates the Pivot Health Policies or Laws.
  7. Billing and Collections. All fees billed by Clients for Job Seeker Services rendered by Job Seekers pursuant to an Engagement shall be and remain the property of such Clients. The Clients shall have the sole and exclusive right to bill and collect from any and all third-party payors, including Government Health Care Programs, for all Job Seeker Services rendered by Job Seekers while providing Job Seeker Services for such Clients pursuant to an Engagement. Each Job Seeker hereby irrevocably reassigns to the Clients, as applicable, all receivables and collections with respect to the Job Seeker Services. Job Seekers shall comply with all Laws pertaining to Government Health Care Program billing and reimbursement and all requirements of any third-party payors contracting with the Clients. Job Seekers shall prepare, execute and deliver to the Clients such assignments and/or other documents as may be requested by the Clients and necessary or appropriate to effectuate the intent of this Section 9 of the Job Seeker Terms, including, without limitation, Form CMS-855R.
  8. Non-Solicitation. Each Job Seeker acknowledges and agrees that Pivot Health has provided to such Job Seeker a valued service in presenting such Job Seeker to Clients. In return, to the extent consistent with applicable state law, during the term of any Order and for a period of two (2) years thereafter, no Job Seeker shall solicit or accept either a temporary engagement or permanent position with a Client, or an Affiliate of a Client, that is a party to such Order with such Job Seeker, without the written consent of Pivot Health. Each Job Seeker further agrees to inform Pivot Health immediately if contacted by a Client, or an Affiliate of a Client, to perform services directly for a Client or an Affiliate of a Client in violation of this Section 10 of the Job Seeker Terms. For purposes of the Job Seeker Terms, an “Affiliate” of a Client includes, but is not limited to, an organization or person that has any form of direct or indirect business relationship with such Client, any entity comprised of one or more owners of such Client, or any successor to or assignee of such Client.
  9. Health Insurance Portability and Accountability Act (HIPAA). Pivot Health and each Job Seeker acknowledge that the performance of Pivot Health’s obligations under the Job Seeker Terms and any Order does not involve the use or disclosure of protected health information, as defined in 45 C.F.R. § 160.103 (“PHI”). Pivot Health shall not receive PHI from any Job Seeker, nor create or receive PHI on any Job Seeker’s behalf. Consequently, Pivot Health and each Job Seeker hereby agree that Pivot Health is not a “business associate” of any Job Seeker for purposes of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder.
  10. Indemnification. In addition to any other obligation of a Job Seeker otherwise to provide indemnification, each Job Seeker agrees to indemnify and hold harmless Pivot Health, its directors, officers, employees, agents and affiliates from and against any and all claims, damages, losses, liabilities, settlements, attorneys’ fees and expenses (collectively “Claims”) arising out of or resulting from any act or omission of Job Seeker, including without limitation (i) execution or performance of an Order by Job Seeker, (ii) any breach of the Job Seeker Terms or an Order by Job Seeker; or (iii) Job Seeker rendering or failing to render Job Seeker Services, including Claims arising out of or resulting from Job Seeker’s negligence, in whole or in part, without regard to whether or not such Claims are covered by professional liability insurance.
  11. Resume Suggestions, Salary Benchmarking, Negotiation Framework and Talent Coach. In addition to Job Seeker agreeing to indemnify and hold harmless Pivot Health in section 11, Job Seeker understands that the suggestions and edits by the employees or advisors of Pivot Health (collectively the “Talent Coaches”) are not deemed to be advice. The suggestions are for informational purposes only. Job Seeker agrees to indemnify and hold harmless Pivot Health for the suggestions requested by Job Seeker. In addition, the data produced for the Salary Benchmarking tool consists of estimates from various third party sources. Pivot Health does not verify the accuracy of these reports. To ensure the accuracy of salary data, please consult the appropriate institution for a report on the salaries of all its employees. Thirdly, the information to help understand a negotiation (collectively the “Negotiation Framework”) is a suggestion and is not intended to be fact or all encompassing. Please consult the relevant research source for Job Seeker’s appropriate use of negotiation strategies. Pivot Health offers a service that is designed to assist in the completion of the Job Seeker’s placement. Thus, it is understood that Pivot Health does not make any guarantees regarding Job Seeker’s placement as an outcome or consequence of submission of the Site. The purpose of the Job Seeker Terms is strictly to provide the Job Seeker with related services according to the Job Seeker’s instructions. Everything provided by Pivot Health is intended for research/reference purposes only. Pivot Health is also not responsible for failure on the part of the Job Seeker to learn the material covered by the Site or improper usage of research contained therein.

C. CLIENT TERMS

Effective Date: April 25, 2017
For the avoidance of any doubt, capitalized terms not otherwise defined herein shall have the meanings given to them in the Site Use Terms and the Job Seeker Terms.

  1. Account Registration and Suspension. Clients who wish to engage Job Seekers for Engagements through the Site shall have registered an account with Pivot Health through the Site. Representatives of the Client will create individual accounts by selecting a username and password and associating such accounts with the Client’s facility or facilities. Each representative of the Client must be verified as an employee of the Client by either (a) transmitting a photograph of his or her Client-issued identification badge or (b) receiving an invitation to Pivot Health from a Client representative who has already been verified as an employee of the Client by other means, including, but not limited to, the mechanism described in (a). Client users may suspend his or her individual account at any time by contacting Pivot Health using the “Contact Us” link in the footer of the home page.
  2. Duties of Client.
    1. Selection and Engagement of Job Seekers.
      1. Clients may from time to time select Job Seekers introduced to Clients through the Site to perform Job Seeker Services on behalf of Clients for the rates specified in one or more Orders by submitting to Pivot Health a completed and fully-executed Order. Clients shall exercise independent judgment in assessing the professional qualifications of each Job Seeker it seeks to engage and shall be responsible for credentialing each Job Seeker to determine whether each Job Seeker is qualified by training and experience to perform the Job Seeker Services described on the Order. Clients acknowledge that Pivot Health is not licensed to practice medicine and shall have no control as to the means or the quality of the Job Seeker Services furnished by the Job Seekers, nor shall Pivot Health have any right or responsibility for making any determinations regarding the Job Seekers’ professional service engagements, schedule or practice.
      2. Clients, in consultation with the Job Seekers, shall be responsible for determining the Job Seekers’ Fees, as well as for determining the Job Seekers’ work schedule, coverage assignments, schedule, number of hours provided, number of patients served and other requirements related to the performance of the Job Seeker Services by the Job Seekers.
      3. Clients shall, as necessary and appropriate, provide to the Job Seekers providing Job Seeker Services on behalf of Clients (A) a reasonable coverage schedule, (B) reasonably maintained, usual and customary equipment and supplies, (C) a suitable practice environment complying with acceptable ethical and procedural standards and (D) as necessary, appropriately trained support staff, all so as to enable the Job Seekers to perform the Job Seeker Services in their specialty on comparable terms to other practitioners in the same specialty as the Job Seekers. Client shall provide to the Job Seekers an orientation of Client’s facility and required policies and procedures.
      4. Clients shall use their best efforts to assist the Job Seekers in timely obtaining any hospital or medical staff privileges necessary for the Job Seekers to provide the Job Seeker Services on behalf of such Clients and shall pay all application fees associated with obtaining such privileges.
      5. By agreeing to the Terms, Clients shall not contact Job Seekers other than through the Site. Should Clients attempt to contact Job Seekers found on the Site through other means in order to solicit employment, this will result in a breach of Terms and Client will be subject to a fine of $25,000 and possible revocation of access to the Site.
      6. Clients shall bill for, collect and retain all professional fees generated by the Job Seeker Services rendered by Job Seekers. Clients are responsible for obtaining all necessary documentation to permit it to bill for and collect all professional fees generated by the Job Seeker Services rendered by Job Seekers, including without limitation Form CMS-855R.
    2. Postings. Clients may, from time to time, post about opportunities to provide Job Seeker Services on behalf of Client on the Site. Consistent with the Site Use Terms, Clients shall only post true information pertaining to opportunities that are actually available and shall use commercially reasonable efforts to timely remove posts for opportunities that are no longer available
    3. Compliance. Clients shall comply, and shall cause all of their employees and agents to comply, with (i) the Laws applicable to the obligations of Clients under the Client Terms and any Order and (ii) the Pivot Health Policies, each as may be adopted or amended by Pivot Health from time to time.
    4. Notification to Pivot Health. If there are any occupational safety hazards or events involving a Job Seeker engaged by Clients pursuant to the Client Terms and any Order, or there is any sentinel event or actual or threatened claim arising out of or relating to the acts or omissions of such Job Seeker, such Clients shall provide Pivot Health with written notice of such claim immediately, and in no event, ten (10) days after such Clients knew or reasonably should have known of such claim.
  3. Pivot Health Professional Liability Coverage. Pivot Health offers the Pivot Health Professional Liability Coverage for any incidental or negligent occurrence related to the Site or procuring Job Seeker’s employment. To the extent that liability under any judgment or settlement regarding the performance of Job Seeker Services by a Job Seeker exceeds these coverage limits, Clients shall hold Pivot Health and the Job Seekers harmless from the same. Pivot Health’s obligation to arrange for the Pivot Health Professional Liability Coverage is conditional upon such Job Seeker’s cooperation in completing, verifying and providing accurate and complete underwriting and licensing information to Pivot Health.
  4. Payment.
    1. Each Client shall pay Pivot Health (A) a fee equal to fifteen percent (15%) of the Job Seeker Fees (the “Pivot Health Fees”). Pivot Health shall invoice Clients for the Pivot Health Fees on the day of hire. Clients shall pay all undisputed invoices within thirty (30) calendar days after receipt. Interest shall accrue on any late payments at a rate of one-and-one-half percent (1.5%) per month compounded annually, provided however that such interest shall not be greater than the applicable legal maximum rate of interest if lower.
    2. If a Client has reasonable cause to dispute the accuracy of an invoice, such Client shall promptly, but in any case, not later than ten (10) calendar days following the receipt of the invoice, notify Pivot Health in writing of the nature of the dispute. Such Client may withhold payment of the disputed amount, and such payment will not be considered past due during such Client’s investigation of the dispute. Such Client shall make all commercially reasonable efforts to completely resolve the dispute within thirty (30) calendar days following the date that such Client received the invoice and shall advise Pivot Health of the results of the completed investigation, and Pivot Health shall make any adjustments to the invoice mutually agreed to by Pivot Health and such Client. If Pivot Health and such Client are unable to resolve the dispute within the period described above, it will be resolved pursuant to the dispute resolution provisions in Section 15 of the Site Use Terms.
    3. Clients acknowledge and agree that Clients shall not collect, or attempt to collect, remuneration of any kind from the Job Seekers to reimburse or compensate Clients for the Pivot Health Fees, for the Job Seeker Fees, or otherwise related to Clients’ use of the Site or the engagement of the Job Seekers.
  5. Representations and Warranties. Each Client represents and warrants the following: such Client has and shall maintain any and all licenses, permits, registrations, or other certifications necessary to perform its obligations under the Client Terms and any Order and to engage Job Seekers to provide the Job Seeker Services on behalf of such Client; and such Client has all requisite power and authority, and has taken all corporate action necessary, to agree to the Client Terms and to perform its duties obligations under the Client Terms.
  6. Relationship of the Parties. None of the provisions of the Client Terms are intended to create, nor shall be deemed or construed to create, any relationship between Pivot Health and any Client other than that of independent parties contracting with each other for the purpose of effecting the provisions of the Client Terms. Each Client acknowledges that (i) Pivot Health and such Client are not and shall not be construed to be in a relationship of joint venture, partnership or employer-employee, (ii) the Job Seekers are and shall at all times be independent of Pivot Health; (iii) the Job Seekers are not employees, subcontractors, or agents of Pivot Health for any purpose; (iv) Pivot Health is not involved in the practice of medicine and does not have any responsibility for the medical acts of the Job Seekers providing the Job Seeker Services on behalf of such Client pursuant to the Client Terms and an Order; and (iv) no provision of the Client Terms shall be deemed or construed to mean that Pivot Health or any employee of Pivot Health is engaged in the practice of medicine.
  7. LIMITATION OF LIABILITY BY PIVOT HEALTH FOR JOB SEEKER SERVICES. PIVOT HEALTH SHALL HAVE NO LIABILITY TO ANY CLIENT FOR ANY INJURY OR LOSS TO ANY PARTY RELATING TO OR IN ANY WAY ARISING OUT OF THE JOB SEEKERS’ PROVISION OF JOB SEEKER SERVICES ON BEHALF OF A CLIENT PURSUANT TO THE CLIENT TERMS OR ANY ORDER OR FOR ANY ACTIONS OF THE JOB SEEKERS.
  8. Insurance. Pivot Health and each Client shall maintain general liability insurance with customary coverage levels.
  9. Health Insurance Portability and Accountability Act (HIPAA) Pivot Health and each Client acknowledge that the performance of Pivot Health’s obligations under the Client Terms does not involve the use or disclosure of PHI. Pivot Health shall not receive PHI from any Client, nor create, receive, maintain or transmit PHI on any Client’s behalf. Consequently, Pivot Health and each Client hereby agree that Pivot Health is not a “business associate” of any Client, as defined in 45 C.F.R. §160.103, for purposes of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder.
  10. Non-Solicitation of Pivot Health Employees. A Client that is a party to an Order shall not, during the term of such Order and for a period of one (1) year thereafter, directly or indirectly, on its own behalf or in the service or on the behalf of others, (i) induce or attempt to induce any director, officer or employees of Pivot Health to leave Pivot Health, or (ii) hire, contract or take away or cause to be hired, contracted or taken away any director, officer or employee of Pivot Health.
  11. Reassignment Fee. In the event that, within one (1) year after a Job Seeker and a Client last communicated via the Site, such Client or any Affiliate of such Client directly (i.e., outside of the Client Terms) employs or retains a Job Seeker introduced to such Client through an Introduction, such Client shall pay to Pivot Health a reassignment fee equal to ten percent (10%) of the Job Seeker Fees paid by such Client during the first (1st) year that Job Seeker provided Services on behalf of such Client or $15,000, whichever is less (the “Reassignment Fee”). The Reassignment Fee shall be due in full on the first (1st) day such Job Seeker performs services for such Client or an Affiliate of such Client in such capacity. Until the Reassignment Fee is paid by such Client, all services provided by such Job Seeker to Client or an Affiliate of Client shall be treated as provided through this Agreement. For purposes of these Client Terms, an “Introduction” shall be deemed to have occurred when a Job Seeker or Client has initiated contact with the other, regardless of whether the other responds and regardless of whether such contact occurred through the Site or otherwise.
  12. Indemnification. In addition to any other obligation of a Client otherwise to provide indemnification, each Client agrees to indemnify and hold harmless Pivot Health, its directors, officers, employees, agents and affiliates from and against any and all Claims arising out of or resulting from any act or omission of, by or on behalf of Client, including without limitation (i) execution or performance of an Order by, for or on behalf of Client, or (ii) any breach of the Client Terms or an Order by, for or on behalf of Client.

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