These Terms of Service (referred to as the “TOS”) establish the agreement between you (or, if you are representing a company or other legal entity, that entity, including any successors, assigns, and third-party beneficiaries) (“you”) and Direct Care Source, LLC, a Texas limited liability company (collectively referred to as “DCS,” “we,” “us,” or “our,” including its affiliates, agents, representatives, consultants, employees, officers, and directors). These terms govern your access to and use of the Service provided by DCS. The TOS become effective on the earlier of the date you click “Accept,” first access or use the Service, or indicate your agreement to the TOS in any other manner (“Effective Date”).
DirectCare Shifts is a platform operated by Direct Care Source, LLC, offering a marketplace platform and mobile applications (referred to as the “Apps”). The purpose of these Apps is to provide verified and licensed healthcare service providers with the opportunity to browse and schedule shifts at participating healthcare facilities. These shifts are temporary and offered on an as-needed basis. Collectively, these services, including any new features and applications, along with the website (referred to as the “Site”) and the Apps, are referred to as the “Services.”
It is important to note that DCS is not a healthcare facility or an employer. DCS is not affiliated with any of the healthcare service providers or healthcare facilities who may use the Services. Some parts of the Services are publicly accessible to all visitors to the Site (referred to as “Visitors”), while other parts, including the App, are available only to registered users. These Terms of Service (referred to as the “Agreement”) apply to all Users of the App collectively.
Please read this Agreement carefully before you start to use the Services.
BY CREATING AN ACCOUNT OR OTHERWISE USING THE SERVICES, YOU AGREE TO THE FOLLOWING:
ACKNOWLEDGE AND UNDERSTAND THAT DCS IS A TECHNOLOGY SERVICES PROVIDER AND DOES NOT PROVIDE HEALTHCARE SERVICES NOR DOES IT EMPLOY HEALTHCARE SERVICE PROVIDERS WHO MAY UTILIZE THE SERVICES;
REPRESENT THAT YOU HAVE THE AUTHORITY AND ARE FULLY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE FACILITY YOU REPRESENT;
REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND ARE A LEGAL RESIDENT OF THE UNITED STATES;
If you are entering into this agreement on behalf of a company or other legal entity, you represent and warrant that you are authorized and lawfully able to bind THE entity to THIS AGREEMENT, in which case the term “you” will refer to such entity. If you do not have such authority, or if you do not agree with the terms and conditions of the TOS, you may not access or use the Service; AND
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT AND SHOULD NOT ACCESS OR USE THE SERVICES.
The TOS consists of three sections, and the applicability of each section to you depends upon the nature of your access to or use of the Service or your relationship to DCS.
ALL USERS: Applies to anyone who accesses or uses the Service.
HEALTHCARE FACILITIES: Applies to you to the extent you access or use the Service as a Facility (defined below).
PROVIDERS: Applies to you to the extent you access or use the Service as a Provider of professional direct care services (defined below).
“Accreditations” means a Provider’s relevant authorizations, approvals, certifications, government-issued identification information, immunizations, licenses, permits, registrations, or other materials or information necessary to enable DCS to verify a Provider’s identity and eligibility to perform the Healthcare Services in accordance with this Agreement.
“App” means any mobile application made available by DCS for accessing or using the Service.
“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 Service.
“Facility” means a healthcare facility that is certified to operate in its respective jurisdiction and/or the entity responsible for operating such facility or providing healthcare services to patients at the facility. The Facility utilizes or accesses the Service for various purposes, including posting Service Requests, receiving offers from Professionals to fulfill those requests, and facilitating the payment of Professional Services Fees.
“Facility Rules” means a Facility’s rules, standards, policies, practices, and procedures as may be communicated to Providers from time to time.
“Healthcare Services” means the healthcare services that a Provider represents it is licensed and qualified to provide in accordance with this Agreement and that are solicited or accepted by Facilities through the 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.
“Platform” means DCS’s proprietary online platform made available through its mobile applications (each, an “App”) and the websites and associated domains of www.directcareshifts.com and www.facility.directcareshifts.com (the “Sites”) (including all Content, software and other components composing the foregoing).
“Provider” means a licensed healthcare provider eligible to use the Services and whose identity and qualifications have been verified by DCS or our authorized third-party service providers to, among other things, offer his or her professional services to fill Shift Requests by Facilities and receive payment in connection with performance of Professional Services.
“Service” means the Platform, access to, and use of the Platform, as provided by DCS.
“Shift” means the set time period in which a Provider agrees to provide the Healthcare Services to a Facility in accordance with this Agreement and the description and scope agreed by and between such Provider and Facility, including but not limited to type and nature of the services to be provided and the date, time, duration, and location for which such Healthcare Services will be performed.
“Shift Request” means each individual request for Services submitted through the Service by a Facility.
“Third-Party Content” means all Content made available through the Service by third parties, including other users.
“Users” means collectively, Providers and Facilities.
“Your Content” means all Content that you submit, upload, email, transmit or otherwise make available through the Service.
HOW THE SERVICE WORKS
The Platform. DCS facilitates the connection between independent third-party providers of medical, hospitality, or physical care services (referred to as “Providers”) and independent third-party businesses (referred to as “Facilities”) that require these services on a short-term basis. The Platform grants access to Providers and allows them to offer their Professional Services. When a Facility posts a Shift Request, Providers can view the posting and indicate their availability to provide the requested medical services. The Facility can then review the responses from Providers, consider the information provided by the Providers through the Service, and choose the Provider it wishes to engage.
Shift Requests. For each Shift Request, a Facility is required to submit a separate posting for each Provider needed. In other words, if a Facility intends to hire two Providers, it must create two separate postings for Shift Requests. Each posting for a Shift Request must provide detailed information about the required Professional Services, including a description of the services, the specific start and end times, and the designated location where the services need to be performed.
Shift Bids. Through the Service, Providers have the ability to review Shift Request postings and submit a Shift Bid to the relevant Facility, expressing their interest in providing Professional Services to fulfill the Shift Requests. Each Shift Bid must include specific information, such as the Provider’s name, work history, certification details, and any additional information requested in the Shift Request posting, within the boundaries permitted by applicable law.
Selection of Providers. Facilities will have access to view all Providers who have expressed their interest in providing Professional Services for any given Shift Request. This includes information such as the Provider’s name, work history, and any other relevant details provided through the Service. The decision of which Provider to engage for a Shift Request will be solely at the discretion of the Facilities.
Provider Services. The Facility holds the responsibility of providing guidance, direction, and supervision for the specific tasks that each assigned Provider performs while catering to the patients of the Facility. It is within the Facility’s purview to ensure that the Providers adhere to the necessary protocols and guidelines set by the Facility in the provision of their services. Additionally, the Facility bears the financial responsibility for conducting COVID testing for each assigned Provider who has not yet been tested. This cost covers the necessary testing procedures and ensures that all Providers are tested to maintain a safe and healthy environment within the Facility. By taking on this responsibility, the Facility demonstrates its commitment to safeguarding the well-being of both the Providers and the patients they serve.
Completed Service. By utilizing the Service, Facilities have the capability to evaluate and assess all Shift Bids submitted for their posted Shift Requests. The decision to accept or decline Shift Bids is entirely at the discretion of the Facilities. Only the Shift Bids that a Facility chooses to accept, and subsequently, where the Provider fulfills the assigned Professional Services to the satisfaction of the Facility, are referred to as “Completed Shifts.”
Only a Platform. DCS serves as a platform that enables communication and contract formation between Facilities and Providers, facilitating the exchange of payment for Professional Services provided by Providers to Facilities. When a Facility accepts a Shift Bid submitted by a Provider through the Service, it establishes a direct and exclusive agreement solely between that Facility and Provider. DCS does not become a party to these agreements and explicitly disclaims any liability arising from or related to such agreements between Providers and Facilities, except for its obligations pertaining to payment processing. DCS is not responsible for any loss or damage resulting from decisions or actions taken based on the use of the Services or the content and information provided therein. Any guidance provided by DCS as part of the Services is strictly for informational purposes and does not constitute career, employment, medical, legal advice, or any form of coaching, advising, or professional service. You understand and acknowledge that DCS does not, and shall not be deemed to:
Direct or control any Provider generally or in such Provider’s fulfillment of a Shift, including in such Provider’s performance of the Healthcare Services, acts or omissions during, or such Provider’s operation or maintenance of any equipment or property used during or in fulfillment of a Shift;
Direct or control any Facility generally or in its actions or operations in connection with its use of the Services, including such Facility’s quality, safety, or legality or ability to pay Provider for the Healthcare Services;
Have any right or authority to direct or control what actions a Provider or a Facility may perform or how such party may act or operate in connection with a Shift;
Act as a data repository for your information, documentation, Facility Rules, Shifts, or other information submitted through the Services (unless and solely to the extent we may otherwise agree in writing, and subject to the terms and conditions of this Agreement), and you agree that you are ultimately responsible for keeping and maintaining your own copies of your information, documentation, Shift information, and Facility Rules in your business records.
Independent Professionals. DCS will make commercially reasonable efforts to verify the Registration Information provided by a Provider by utilizing appropriate sources, including state license databases, the United States Office of Inspector General, Center for Medicare and Medicaid, employee misconduct registries, sex offender registries, e-Verify, national, state, and local criminal background checks as required by state regulations, and drug screenings when requested by Facilities.Facilities should assess the thoroughness of DCS’s verification process to their satisfaction. However, DCS will make commercially reasonable efforts to only allow Providers on the DCS Platform whose credentials and criminal background checks meet the minimum standards mandated by the respective states. DCS employs a third-party service to conduct background checks and verify Credentials for each Provider during the signup process and at reasonable intervals. Nevertheless, it is important to understand that while DCS endeavors to conduct thorough background checks and verify Credentials, these measures are not foolproof. DCS relies on the accuracy of the information and Credentials provided by the Provider for verification. DCS makes no representations about and disclaim all liability associated with: (i) the suitability, reliability, quality, and timeliness of the Professional Services provided by Provider; and (ii) each Providers’ credentials, background, suitability, skills, and reliability. Despite DCS’s reasonable efforts, it cannot guarantee the identity of each User. While commercially reasonable measures are taken, DCS cannot provide absolute certainty that every User is who they claim to be.
DCS EXPRESSLY DISCLAIMS, AND FACILITIES EXPRESSLY RELEASE DCS FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATING TO (A) ANY MISSTATEMENTS AND/OR MISREPRESENTATIONS MADE BY A PROVIDER OR (B) THE ACCURACY, TIMELINESS OR COMPLETENESS OF ANY BACKGROUND CHECK OF A PROVIDER CONDUCTED AND/OR OBTAINED ON BEHALF OF DCS. Any disputes relating to the Professional Services must be resolved directly between Providers and Facilities.
AVAILABILITY OF THE SERVICES
Service Availability.You acknowledge that occasional interruptions in service or unforeseen events may occur, which are beyond our control. While we make reasonable efforts to ensure the accessibility of the Services, there may be instances where the Services are temporarily unavailable. These interruptions can result from various reasons, including routine maintenance and updates. Additionally, you understand that there may be service interruptions or events on third-party sites that could impact your use of the Services, which we have no control over and cannot prevent or rectify. Therefore, we cannot assume responsibility for any connectivity issues you may encounter while using the Services, nor can we be held liable for any loss of material, data, transactions, or other information resulting from system outages, whether they are planned or unplanned. It is hereby agreed that we cannot be held accountable to you or any third party in the event we exercise our right to modify, suspend, or discontinue the Services, or in cases of service interruptions, regardless of whether they were scheduled or beyond our control.
Shift Availability. DCS provides a proprietary online marketplace platform and mobile application that allows Facilities to advertise and post available Shifts, while enabling Providers to bid on, request, approve, accept, or receive payment for fulfilling those Shifts. All communication and actions regarding Facility Shifts, including information, requests, bids, confirmations, and cancellations, must be conducted solely through the App and Services. Likewise, all Provider requests, bids, approvals, confirmations, and cancellations for Shifts must be made exclusively through the App and Services. It is important to understand and acknowledge that DCS does not exercise control over or provide a guarantee for the accuracy of Shift Availability, Provider schedules, availability, or any other information presented within the App and Services.
Creating a DCS Account. To utilize the Services as a registered user, it is necessary to create a DCS profile or account (“Account”, as further defined below) by providing specific required information. This information includes, but is not limited to, your full legal name, address, phone number, email address, financial account details for payment processing, and, for Facility accounts, the Facility Rules and Shift information. All Users must be at least eighteen (18) years old to register an Account. By creating an Account, you affirm that the information provided, as well as any other information submitted to us, is accurate, current, and complete. You agree to maintain the accuracy, currency, and completeness of this information and to promptly update it when necessary. If any information provided to us is found to be untrue, inaccurate, not current, or incomplete, we reserve the right to suspend or terminate your Account or access to the Services at our discretion for any other valid business reason. It is considered a violation of this Agreement to provide inaccurate information during Account registration or maintenance or to allow another person to use your Account to engage in or utilize the Services.
Account Security and Activities Upon creating an Account, you will be prompted to generate a password and, if applicable, provide additional authorizations. It is your sole responsibility to maintain the confidentiality of your Account and password, and to ensure that access to your computer or mobile device is restricted. You agree to assume liability for all activities and damages that occur under your Account. Under no circumstances should you utilize another person’s Account, information, or credentials for any purpose. In the event that you become aware of any unauthorized use of your Account or encounter a known security breach related to your Account, it is imperative that you promptly notify us. You acknowledge that you are accountable for any actions conducted through your Account until its closure or until you demonstrate that any compromise to your Account security was beyond your control. Failure to comply with this provision may result in loss or damage for which we cannot and will not be held liable.
Account Usage and Maintenance. After receiving your provided information, Shift details, and Facility Rules, we will proceed with verifying your identity and/or eligibility to utilize the Services. Once your verification process is completed successfully, you will be able to utilize the Services for various purposes such as posting Shifts, requesting bids from Providers, reviewing information and Credentials of Providers bidding on Shifts, and managing your Account settings. By accepting this agreement, you grant us authorization to share or provide access to your Facility name, contact information, designated Shifts, Facility Rules, and any other necessary information for Providers to place bids or accept Shifts at your Facility. Additionally, you may be required to update your Facility Rules and Shift information periodically. It is your sole responsibility to upload and maintain accurate, complete, and current information in your Account, including Shift details. Failure to maintain such information may lead to the suspension or termination of your Account.
LICENSE GRANT; RESERVATION OF RIGHTS
License Grant by DCS. In accordance with the terms of this Agreement and applicable laws, DCS provides you with a limited, non-exclusive, non-transferable, non-sub-licensable, and revocable license to access and utilize the Site, App, and Services. This license allows you to access and use the content, information, and related materials provided through the Services. However, please note that no ownership rights or interests in the Services or any content are transferred to you. You are solely responsible for all your activities carried out in connection with the Services.
License Grant by Facility. In accordance with the terms of this Agreement, you hereby grant DCS a limited, non-exclusive, non-transferable, and revocable license to access, view, and use the Facility Rules, Facility schedule, and any other materials that you upload to the Site and Services (“Facility Materials”). This license is granted solely for the purpose of DCS providing the Services to you. Please note that no ownership rights or interests in the Facility Materials are transferred to DCS as a result of this license.
Reservation of Rights. DCS reserves all rights not expressly granted in this Agreement. We have the right to modify, suspend, or discontinue any aspect of the Services, in whole or in part, for any reason, at our sole discretion and without prior notice. This includes the right to modify, suspend, or discontinue features, databases, or content within the Services. We shall not be held liable to you or any third party for any modification, suspension, or discontinuation of the Services. Furthermore, we may exercise the following actions at our sole discretion: (a) cancel unverified Accounts or Accounts that have been inactive for an extended period; (b) delay, refuse to display, or remove content; and (c) take technical and/or legal measures to limit or prevent a User’s use of the Services, including imposing limitations on specific features or restricting access to parts or all of the Services. These actions may be taken without notice or liability.
Restrictions. You are prohibited from engaging in the following activities yourself or allowing any other party to do so: (a) Using the Services for illegal or fraudulent purposes, or in violation of any local, state, national, or international laws, rules, regulations, or Facility Rules; (b) Using the Services for competitive analysis, developing competing products or services, developing or using third-party applications that interact with our Services without prior written consent, or any other activity that may be detrimental to our commercial interests or assist others in performing any of the aforementioned actions; (c) Posting, storing, sending, transmitting, or disseminating any User Credentials, information, or material that belongs to or pertains to another party, except for the purpose of receiving the Services and verifying Providers who have accepted Shifts through the Site; (d) Posting, storing, sending, transmitting, or disseminating any information that infringes on the patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights of a third party; (e) Posting, listing, or uploading content that is false, inaccurate, misleading, deceptive, defamatory, libelous, threatening, harmful to others, in furtherance of illegal activities, or that may give rise to civil or criminal liability, as determined by DCS in its sole discretion; (f) Attempting to gain unauthorized access to any features of the Services, including creating a secondary Account after being suspended from the Services; (g) Deciphering, decompiling, removing, disassembling, reverse engineering, or attempting to derive any source code or underlying ideas or algorithms of any part of the Services, security-related features, features that prevent or restrict use or copying of accessible content, or features that enforce limitations on the use of the Services; (h) Modifying, translating, or creating derivative works of any part of the Services; (i) Licensing, copying, selling, renting, leasing, distributing, or otherwise transferring any of the rights received under this Agreement or commercially exploiting the Services, in whole or in part; (j) Harvesting or collecting information about other Users without their consent; (k) Sending unsolicited or unauthorized advertising, promotional material, junk mail, spam, chain letters, or any form of software viruses or computer codes that disrupt, damage, limit, or interfere with the proper function of software, hardware, or telecommunications equipment, or gain unauthorized access to any system, data, password, or information belonging to DCS or any third party; (l) Taking any action that imposes an unreasonable or disproportionately large load on DCS’s or its third-party providers’ infrastructure, interfering with the proper working of the App or Services, running mail lists, listservs, or any form of auto-responder or spam on the Services, or using manual or automated software, devices, or processes to crawl or spider any page of the Site; (m) Creating a false identity, misrepresenting your identity, impersonating any person or entity (including DCS employees or representatives), using or attempting to use an Account for anyone other than yourself, or selling or transferring your Account; (n) Using the Services in a manner that contains threats of violence, promotes illegal activities, is harassing, hateful, libelous, defamatory, abusive, spam-like, pornographic, predatory, sexually graphic, racist, offensive, harmful to minors, or violates the rights of any third party, or gives rise to civil or criminal liability; (o) Contacting Providers or using their data, Credentials, or information for any purpose other than verifying Providers to provide Healthcare Services during a Shift at your Facility in accordance with applicable laws, rules, regulations, and this Agreement.
Protection. It is your responsibility to ensure the confidentiality of your User Credentials. You must not share or disclose your User Credentials to any other party. If you become aware of any unauthorized use of the Service using your User Credentials, you must immediately notify DCS in writing and take reasonable measures to stop such unauthorized use.
Licenses and Permits. In order to fully utilize and benefit from the Services, the Facility must possess the necessary local, state, and federal permits and licenses. This includes meeting the requirements for establishing the Facility entity as a hospital, clinic, or other medical facility. If a specific medical specialty or service provided by the Facility requires additional licenses or supervision by a particular licensed Provider, it is the responsibility of the Facility to identify and engage the appropriate individual(s) for such purposes.
Insurance. All Providers utilizing the DCS platform are required to obtain appropriate insurance coverage, including Workers Compensation Insurance or Occupational Accident Insurance (where applicable) and Professional Liability Insurance. The specific details of this insurance coverage are further explained in the PROVIDERS section of this Terms of Service agreement. By using the DCS service, you acknowledge that any liability or injury claims arising from the actions of a Provider, such as claims of negligence, misconduct, or errors, are the sole responsibility of the Provider. In such cases, you should seek compensation or damages directly from the Provider and their insurance coverage. Furthermore, DCS will maintain various insurance policies, including General Liability, Professional Liability, Automobile, Cyber Liability, and others, with the Facility listed as an additional insured party. Upon request, DCS will provide copies of the insurance certificates to the Facility. It is the sole discretion of the Facility to determine the adequacy of DCS’s insurance policies. Please note that DCS reserves the right to modify, change, or cancel its insurance policies at its own discretion. However, any such changes will be communicated to the Facility with at least 30 days’ notice.
DCS Content. The Services provide access to a variety of content, which may include videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, campaigns, and other materials and information, along with associated trademarks and copyrightable works. This content is collectively referred to as “DCS Content.”
DCS Intellectual Property Rights. DCS Content is protected by various rights and laws, such as copyrights, trademarks, and service marks. It is important that you respect all legal notices, information, and restrictions that apply to the content accessed through the Services, including the DCS Content. You agree not to modify, translate, or create derivative works based on the DCS Content. You are granted a limited, revocable, non-exclusive, and non-transferable license to use the Services and DCS Content solely for activities permitted by law and related to our Services, as described in this Agreement.
Your Content. You, and not DCS, are solely responsible for: (a) Your Content: You are responsible for Your Content and for complying with all the necessary requirements, including obtaining the appropriate rights and permissions from intellectual property holders, before submitting Your Content to the Service for use in accordance with the terms of service; (b) Compliance with Laws and Obligations: It is your responsibility to ensure that the submission of Your Content to the Service in accordance with the terms of service does not violate any applicable laws or regulations, as well as any obligations you may have to third parties, including any duty of confidentiality.
Use of Your Content. By using the Service, you grant DCS a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sub-licensable, and 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 Service.
Publicity. DCS may, at its discretion, identify you as a customer of DCS within DCS websites, press releases, brochures, or other marketing materials that are disseminated by DCS. This may include using your company name, logo, or other identifying information to showcase your association with DCS and the services provided.
TERM, SUSPENSION AND TERMINATION
Term. The term of this TOS begins when you acknowledge your acceptance and will remain in effect until the occurrence of the following: (a) you terminate your Account; or (b) all scheduled Shifts with Providers have been completed and fully paid for by you. However, please refer to the termination provisions elsewhere in this Section for additional details.
Termination by User. You have the option to terminate this Agreement by either canceling your Account through your account settings or by sending us an email at email@example.com. Please note that canceling your account does not automatically cancel any scheduled Shifts with Providers, whether they are set to occur before or after the account cancellation. It is your responsibility to cancel any Shifts with Providers prior to terminating your account, if applicable. It is important to understand that even after canceling your account, you remain responsible for any Shifts completed by Providers through the App and Services. DCS will not cancel your account or revoke access (except as stated in Section 8.3) until all Shifts have been completed and approved in the App and Services for the Facility. The Facility is responsible for any applicable Fees during this period.
Termination by DCS. If you breach this Agreement and fail to remedy the breach within fifteen (15) days after receiving written notice from us, we may suspend or cancel your Account. Additionally, if the Facility declares bankruptcy, enters receivership, undergoes liquidation, or dissolves, we may suspend or cancel your Account immediately upon written notice. In the event of Account cancellation, we reserve the right to remove all your account information and settings from our servers without liability or prior notice. Once this information is removed, it cannot be recovered, and you will lose access to your Account. DCS retains the right to terminate, block, or suspend your access to and use of the Service with or without notice in the following circumstances: (i) failure to make timely payments as required by the Agreement, or (ii) violation of the terms of the Agreement. Such blockage or suspension does not waive any other rights or remedies available to DCS under the Agreement or applicable law. If we have reason to suspect or become aware that anyone is violating this Agreement, we may conduct an investigation and take appropriate legal action, including bringing a lawsuit for damages resulting from the violation. We reserve the right to cooperate with and assist law enforcement or government agencies in any investigations related to illegal conduct.
Effect of Termination. Upon termination of this Agreement, your license to use our Services will be terminated, and you must discontinue all use of the Services. DCS may, at its discretion, remove or delete your Account data and any other information obtained during the provision of the Services. Certain provisions of this Agreement that are intended to survive termination, including ownership provisions, warranty disclaimers, indemnity, and limitations of liability, will continue to apply. Please note that we may retain certain information and Credentials in our backups, archives, and disaster recovery systems until such information is deleted in the normal course of our business operations. Termination of the Agreement will not limit any of our rights or remedies available under applicable law or equity.
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other that: ((a) It has the requisite power and authority to enter into this Agreement; (b) The execution and performance of this Agreement have been duly authorized by all necessary corporate or institutional actions; (c) The execution and performance of this Agreement will not violate any applicable law or the party’s constitutional documents, such as the certificate of incorporation, bylaws, or similar organizational documents; (d) No further action or consent from any governmental entity is required to validate and enforce this Agreement; (e) It holds all necessary governmental licenses and approvals required to fulfill its obligations under this Agreement.
DCS will not be held liable, and you agree to indemnify, defend, and hold DCS harmless, for any loss, damage, cost, liability, or expense (including reasonable attorney’s fees and expenses) arising from: (i) Your Content; (ii) Your violation of the TOS, any law or regulation, or the rights (including Intellectual Property) of any other party; (iii) Your access to or use of the Service; or (iv) Any misclassification of you as an independent contractor.
DCS reserves the right to assume exclusive defense and control of any matter subject to indemnification by you under this section. In such cases, you will fully cooperate with DCS in the defense or settlement of the matter. Indemnification: You agree to indemnify, defend, and hold DCS (including our affiliates, subsidiaries, officers, directors, employees, agents, representatives, consultants, successors, and assigns) harmless from any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (including reasonable attorney’s fees) arising from or relating to your use or misuse of the Services or your breach of this Agreement. This includes, but is not limited to, your violation of any applicable law, rule, regulation, or the rights of a third party.
DISCLAIMER OF WARRANTIES
THE SERVICES AND ALL INFORMATION CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
Service Provided As-Is. THE SERVICES ARE PROVIDED TO USERS “AS IS” AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DCS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, SECURITY, ACCURACY, AVAILABILITY, AND NON-INFRINGEMENT. DCS DISCLAIMS WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DCS MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICES (INCLUDING PROXIES) WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE WITH OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE. DCS DOES NOT WARRANT THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED. ANY MATERIAL, CONTENT, OR INFORMATION DOWNLOADED OR OBTAINED THROUGH THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, DEVICE, OR LOSS OF DATA RESULTING FROM SUCH DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DCS OR THROUGH THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR OWN RISK, AND DCS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TRUTHFULNESS, ACCURACY, TIMELINESS, OR COMPLETENESS OF THE SERVICES.
Interactions with Other Users. AS FURTHER DESCRIBED IN SECTION A-2 HEREOF, (i) DCS DOES NOT EMPLOY, RECOMMEND, ENDORSE, OR GUARANTEE ANY MEDICAL-SERVICE PROFESSIONALS, PROVIDERS, OR FACILITIES, AND (ii) YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE SERVICE. You acknowledge and agree that you are solely responsible for your interactions and transactions with other Users. Any claim, damage, or liability associated with any communication or transaction via the Service shall be solely between you and the other User involved. YOU EXPRESSLY WAIVE AND RELEASE DCS 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, DESTRUCTION OF PROPERTY, MENTAL ANGUISH, INTEREST, COSTS, ATTORNEYS’ FEES, AND EXPENSES. ANY REMEDIES IN CONNECTION WITH SUCH CLAIMS SHALL BE BETWEEN YOU AND THE APPLICABLE USER OR OTHER THIRD PARTY. DCS reserves the right, but has no obligation, to monitor disputes between Users. THE SERVICE IS A MARKETPLACE SERVICE FOR USERS TO CONNECT ONLINE, AND EACH USER IS SOLELY RESPONSIBLE FOR INTERACTING WITH AND SELECTING ANOTHER USER, CONDUCTING ALL NECESSARY DUE DILIGENCE, AND COMPLYING WITH ALL APPLICABLE LAWS.
LIMITATION OF LIABILITY
General. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY RELEASE DCS, ITS AFFILIATES, SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONSULTANTS, SUCCESSORS, AND ASSIGNS, FROM ANY LIABILITY ASSOCIATED WITH YOUR USE OF THE SERVICES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, UNDER NO CIRCUMSTANCES SHALL DCS, ITS AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONSULTANTS, SUCCESSORS, AND ASSIGNS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES. THIS LIMITATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. ADDITIONALLY, DCS SHALL NOT BE LIABLE FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR SIMILAR ISSUES, REGARDLESS OF THE SOURCE OF ORIGINATION. IN NO EVENT SHALL DCS’S TOTAL LIABILITY EXCEED THE GREATER OF ONE THOUSAND U.S. DOLLARS ($1,000.00) OR SIX MONTHS OF DCS SERVICE FEES AND DCS ADMINISTRATIVE FEES ACTUALLY PAID UNDER THIS AGREEMENT IN THE PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO THE CLAIM. PLEASE NOTE THAT SOME STATES OR COUNTRIES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, DCS’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Quality of Professional Services. The quality of professional services requested through the use of the Service solely lies with the Provider who offers such services. Facilities acknowledge and explicitly agree that by utilizing the Service, they may encounter services that could be potentially harmful, unsafe, or objectionable. Facilities understand that the use of professional services and engagement with such Providers is at their own risk.
DISPUTE RESOLUTION AND ARBITRATION PROVISION
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
The TOS mandates the use of binding arbitration to settle any dispute or claim arising from or relating to the TOS or your use of the Service. This includes matters such as the validity, applicability, or interpretation of the TOS. By agreeing to the TOS, you consent that any claim will be resolved solely on an individual basis, and not through a class, collective, consolidated, or representative action or arbitration. It is important to carefully review this section to understand your rights and obligations regarding the resolution of any claim. Please thoroughly read and consider the TOS. By accessing or using the Service, you acknowledge your acceptance of the TOS, including any updates or revisions posted within the Service or communicated to you. If you do not agree to the TOS, refrain from accessing or using the Service.
Initial Dispute Resolution. In the event of any problem or dispute with us, it is important that you provide us with the opportunity to resolve it. To initiate the dispute resolution process, you agree to send us a written description of your problem or dispute within thirty (30) days of the event that gave rise to it. You can do so by emailing us at Support@directcaresource.com or by sending a physical mail to the address provided below. Following this, you agree to engage in good faith negotiations with us regarding your problem or dispute for a period of sixty (60) days. Our aim is to reach a satisfactory resolution during this time. However, if your problem or dispute is not resolved within sixty (60) days after we receive your written description, you agree to proceed with the arbitration provisions outlined below.
Binding Arbitration. If the parties are unable to reach a mutually agreed-upon solution through the Initial Dispute Resolution process, either party may choose to initiate binding arbitration as the sole method of resolving claims, subject to the terms outlined below. All claims arising from or relating to this Agreement, including its formation, performance, and breach, the parties’ relationship, and your use of the Services, will be settled through binding arbitration conducted by the American Arbitration Association (AAA). The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules and the supplementary procedures for consumer-related disputes, excluding any rules or procedures regarding class actions. The Commercial Arbitration Rules can be accessed at www.adr.org or by contacting the AAA at +1.800.778.7879. The arbitrator, not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes related to the interpretation, applicability, enforceability, or formation of this Agreement. This includes determining the validity or voidability of any part of this Agreement and deciding whether a claim is subject to arbitration. The arbitration rules may allow for the recovery of attorney’s fees in certain circumstances. The arbitrator’s decision will be written and binding upon the parties, and it may be entered as a judgment in any court with jurisdiction. The parties understand that, without this mandatory arbitration provision, they would have the right to file a lawsuit and have a trial by jury. They also acknowledge that, in some cases, the costs of arbitration may exceed those of litigation, and the discovery process may be more limited in arbitration compared to court proceedings. By agreeing to this provision, you waive any other dispute resolution methods, except as explicitly provided for in this Agreement.
Location. The arbitration will take place in Dallas, Texas.
Class Action Waiver. The parties also acknowledge and agree that any arbitration will be conducted solely on an individual basis and not as a class action or representative action. They expressly waive their right to file or participate in a class action or seek relief on a class basis. YOU AND DCS AGREE THAT ANY CLAIMS BROUGHT AGAINST EACH OTHER WILL ONLY BE BROUGHT IN YOUR INDIVIDUAL CAPACITY OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. In the event that a court or arbitrator determines that the class action waiver stated in this paragraph is void or unenforceable for any reason, or that arbitration can proceed on a class basis, then the arbitration provision mentioned above will be deemed null and void in its entirety, and the parties will be considered as not having agreed to arbitrate disputes.
Exceptions.Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
Changes. DCS may modify, revise, or terminate the terms of this Section 13 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.
Assignment. Facility or Provider is prohibited from assigning, transferring, sublicensing, subcontracting, charging, or encumbering any of its rights or obligations under this Agreement without prior written consent from DCS. However, DCS retains the right to assign, transfer, or delegate its rights and obligations under this Agreement without requiring consent from the Facility or Provider. Any attempt to assign in violation of this provision will be considered null and void.
Geographic Restrictions. The Services are operated and intended for use in the state of Texas, and are specifically designed for Facilities and Providers located within the United States. You acknowledge that access to the Services may be restricted in certain states or outside of the United States, and that accessing the Services from such locations may be prohibited by law. If you choose to access the Services from restricted states or outside the United States, you are solely responsible for complying with the applicable local laws and regulations.
Governing Law and Jurisdiction. This Agreement is governed by and interpreted in accordance with the laws of the State of Texas, without regard to its choice or conflicts of law principles. Any legal action, suit, or proceeding arising out of or relating to this Agreement or the Application shall be exclusively brought in the federal courts of the United States or the state courts of Texas, located in Dallas, Texas. By agreeing to this provision, you waive any objections to jurisdiction and venue in such courts. It is important to note that this provision does not supersede the arbitration provisions outlined in this Agreement.
Relationship of the Parties. The relationship between DCS and you established by the TOS is that of independent contractors. All terms and conditions of this TOS will be interpreted in consideration of this independent contractor relationship. As an independent contractor, you do not have the authority to bind DCS to any obligations, including signing agreements on behalf of DCS. Unless expressly provided otherwise in this Agreement, your use of our Services does not create an agency, employment, joint venture, franchise, or partnership relationship between you and DCS. Both parties acknowledge and agree that: (a) they have no authority to bind the other party, (b) neither party shall represent themselves as an employee, agent, or authorized representative of the other party unless expressly permitted in this Agreement, (c) neither party is entitled to receive benefits from the other party except for compensation or fees as specified in this Agreement, and (d) neither party has an obligation to withhold income or payroll taxes on behalf of the other party, and each party is solely responsible for compliance with all applicable state, federal, and local tax laws regarding compensation received from the Services. It is important to note that DCS shall not be liable for any employment issues or disputes between Facilities and Providers. You agree to indemnify, defend, and hold harmless DCS from any losses incurred as a result of any breach of your obligations under this provision.
Direction; Control. You understand and agree that Providers have the independent ability to select and accept Shifts at your Facility in accordance with this Agreement. DCS does not direct or control Providers or Facilities in the performance of Healthcare Services, including any acts or omissions by Providers or Facilities. Unless otherwise specified in writing, you acknowledge that Providers are independent contractors operating as self-employed individuals. Additionally, you acknowledge and agree that DCS does not have the right or authority to direct or control the actions or methods you employ in providing Healthcare Services at your Facilities. This includes aspects such as the quality, frequency, and approach to the Healthcare Services. You also recognize that DCS has no authority or control over any Facility, including oversight or supervision of Healthcare Services. DCS does not provide tools of the trade, training, equipment, uniforms, or any other materials to Providers or Facilities.
Provider Relationship with Facilities.You acknowledge and agree that as a Facility, you are establishing a direct business relationship with a Provider. DCS bears no responsibility or liability for the actions or inactions of a Provider in relation to the provision of Healthcare Services or any other services rendered by the Provider, whether at your location or elsewhere. You are solely accountable for any obligations or liabilities that may arise from your provision of Healthcare Services to a Provider or third parties. It is your sole responsibility to take reasonable and appropriate precautions regarding any acts or omissions by you, the Facility, or any third party.
Severability. If any provision of this Agreement is deemed illegal or unenforceable under applicable law, the remaining portion of the provision will be modified to the extent necessary to make it valid and enforceable. Furthermore, all other provisions of this Agreement will remain in full force and effect.
Waiver. The failure or delay of either party to exercise any right or power under this Agreement shall not constitute a waiver of such right or power. Additionally, any partial or single exercise of a right or power shall not prevent further exercise of that right or any other rights under this Agreement. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall take precedence and govern.
Third-Party Sites. The Services may offer the option to access links to other websites or resources on the internet. These links are provided solely for your convenience. If you choose to use these links, you will be directed away from the Services. It is important to note that the inclusion of third-party services or links does not imply control, endorsement, or affiliation with DCS. Any interactions or transactions you have with third parties are solely between you and those parties. DCS will not be held responsible or liable for any content, goods, or services provided on or through these external websites, nor for any issues or difficulties you may encounter while using such websites. Please use these links at your own risk.
Contact. If you have any questions about this Agreement, or feedback, comments, requests for technical support, and other communications related to the Services, please contact us at Support@directcareshifts.com or at the address set forth below.
Direct Care Source, LLC
2441 Fort Worth Drive
Denton, TX 76205
FEES AND TAXES
Service Fees. By using the App and Services, Facilities agree to pay DCS the specified fees in exchange for accessing the marketplace platform. The base wages paid to Providers for their services are solely determined by the Facility and not by DCS. When a Shift Request is completed, the Facility that posted the request is responsible for paying the Provider the fee stated in the posting (“Professional Services Fee”). The Facility will make the payment to the Provider through the Service. All fees are denominated in US dollars, unless otherwise indicated. Apart from the base wages, DCS will charge the Facility fees for using the Platform. These fees are established by DCS upon the Effective Date and may be subject to change with a 30-day notice provided to the Facility. Additionally, DCS may impose administrative fees on a one-time, recurring, or periodic basis, including fees required for identity verification or determining eligibility to use the Services (“DCS Administrative Fee”). The amount of these administrative fees may be adjusted at DCS’s discretion, and any changes will be communicated to the Facility in advance through their Account. For the Facility’s convenience, DCS may charge the applicable DCS Administrative Fee and DCS Service Fee to the designated payment method, in addition to the relevant Shift Fees.
Taxes. Unless otherwise specified, all amounts payable under the TOS are exclusive of any applicable Taxes, such as value-added, sales, use, excise, and similar taxes (“Taxes”). It is your sole responsibility to pay all relevant Taxes. In the event that DCS is legally obligated to collect any Taxes, you agree to promptly reimburse DCS upon receiving an invoice. If you are required by law to withhold any taxes from your payments to DCS, you must provide DCS with an official tax receipt or appropriate documentation to substantiate such payments, and you should take reasonable measures to minimize such withholdings.
Conditions for Payment. You have the responsibility to verify and review all work reports submitted by Providers for Scheduled Shifts at your Facility. Through your Account, you can monitor Shift reports, as well as the Facility status approval process and any updates. Please note that DCS’s role is limited to processing transactions between Facilities and Providers for Shifts that have been scheduled and verified through the App or Services. If a Facility does not confirm or dispute a Shift Report within 15 days of the Shift, it will be considered accurate and invoiced to the Facility. All invoices are due within thirty (30) days from the date of the invoice (Net 30).
Interest and Costs of Collection. In the event that payments are not made in accordance with the terms of this Agreement, you acknowledge and agree that DCS has the right to charge interest on any outstanding balance from the thirty-first (31st) day after the payment was due. The interest rate applied will be 1.5% per month until the balance is paid in full. If any delinquent payments are referred to an attorney for collection, both parties agree that the arbitration provisions stated in this Agreement will be waived solely for the purpose of collection lawsuits. Consequently, the parties stipulate that any demand for payment will include a flat service fee of $750.00, which covers the cost of initiating the demand for payment. In addition to any outstanding amounts owed, you agree to bear all court costs, reasonable attorney fees, and other necessary expenses incurred by DCS in the collection process.
No Circumvention. You acknowledge that the Platform grants you access to a wide network of Providers that would otherwise be inaccessible to you. Consequently, intentionally evading the payment of fees to DCS by engaging Providers directly outside of the Platform, unless it is for full-time employment purposes, is a violation of the TOS. Full-time employment refers to a permanent employment arrangement where the employee works an average of at least thirty (30) hours per week. Furthermore, you are required to promptly notify DCS if a Provider requests payment through channels other than those provided or specified by DCS. However, it is important to note that the TOS does not prohibit you from directly entering into an employment relationship with Providers.
Billing Dispute. If you believe DCS made an error in your billing, you have 15 days from the date the invoice was issued by DCS to dispute the invoice. Billing disputes must be sent in writing to firstname.lastname@example.org.
Refunds. DCS has no obligation to provide refunds or credits, but may grant them in extenuating circumstances in its sole discretion.
Cancellations by Provider. If a Provider cancels a Shift with less than a 4-hour notice before the shift start time, DCS will relaunch the shift and attempt to find a replacement Provider. If finding a replacement requires increasing the pay rate, DCS will cover the difference at the request of the Client, equal to a boosted shift.As the Facility, it is your responsibility to enable the appropriate notification settings in order to receive status updates and notifications regarding a Shift.
Cancellations by Facility. Once you have approved or accepted a bid from a Provider for a specific Shift and a Provider has been scheduled through the App (referred to as a “Scheduled Shift”), it is your responsibility as the Facility to communicate any cancellations directly with the relevant Provider using the Services. The Facility must cancel the Shift no later than twenty-four (24) hours before the shift start time to avoid a penalty. Cancellations made with less than 24 hours’ notice will incur a cancellation fee equal to ½ of the scheduled shift to ensure the Provider is compensated for the lost time. If a shift is canceled while a Provider is already working, the Facility will be billed for the entire shift. Shifts without a scheduled Provider can be canceled at any time without penalty.If the Client cancels a placement for any reason other than performance issues, the Client will be responsible for paying for the remainder of the scheduled contract. In the case of a performance issue, DCS will arrange for a replacement Provider to complete the remaining term. Placements will automatically renew unless the Client provides DCS with a 7-day written notice of cancellation.
DirectCare Shifts reserves the right to suspend Facilities from the Platform for a determined period of time if they repeatedly cancel Scheduled Shifts, at the discretion of DirectCare Shifts.
Please note that DCS is not responsible for the notification settings of your Account or any device you use to access the Services, nor is DCS accountable for your receipt of notifications through the Services. You acknowledge and agree that you are solely responsible for: (i) cancelling shifts of Providers if the Services are not needed in a timely manner as outlined herein; (ii) ensuring that proper notification settings are enabled in your Account; (iii) maintaining accurate and up-to-date contact information in your Account; and (iv) ensuring the accuracy of Shift availability and other information on the App and Services, as well as the status and fulfillment of all relevant Shifts.
DISCRETION AND RELATIONSHIP
Discretion to Use the Service. You have full and absolute discretion in determining when to utilize the Service. There are no specific times or days during which you are obligated to use the Service, and you have the option to not use it at all. Shift Requests are posted by Facilities, not DCS, through the Service, and you have complete autonomy in deciding which Shift Requests you choose to submit a Shift Bid for and which ones you do not. There is no obligation to submit a Shift Bid for any Shift Request, nor any minimum requirement for the number of Shift Bids you must submit.
Discretion to Provide Services. DCS does not have the authority to direct or control your interactions with Facilities, the provision of Professional Services to Facilities, or your actions or omissions. For example, there is no requirement for you to wear or display any DCS branding while providing Professional Services. The Service simply makes Shift Requests visible to you, and you have full autonomy in deciding when to use the Service, whether to respond to Shift Requests, and how you provide Professional Services to Facilities. Both you and DCS acknowledge and agree that you have the complete freedom to provide other services or engage in any other business activities, including using similar software provided by DCS’s competitors. Additionally, you and DCS acknowledge and agree that you may provide services to Users without using the Service, which falls outside the scope of this Agreement.
Shift Requests Not Guaranteed. DCS cannot provide any assurance or guarantee that Facilities will post Shift Requests, engage your services to perform Professional Services, or that a Shift Request will not be cancelled by the Facility involved.
Qualifications. You represent that you are duly licensed (as applicable) and have the experience, qualifications, and ability to perform each Request you accept.
No Authorization. You acknowledge and agree that you are not the agent or representative of DCS and are not authorized to make any representation, contract or commitment on behalf of DCS.
No Reimbursement. DCS does not and cannot reimburse you for any expenses you incur as a result of your performance of Professional Services for Facilities.
No Employment Relationship. In addition to the terms set forth in Section A-2(a) above, You explicitly acknowledge and agree that there is no form of employment, part-time employment, consulting, contractor, partnership, or joint venture relationship between you and DCS. Furthermore, you recognize and acknowledge that DCS does not function as an employment service or agency and does not guarantee or secure employment for you. You understand and agree that you are not eligible to participate in any benefits provided by DCS to its employees, such as group insurance, profit-sharing, or retirement benefits, and you voluntarily waive any rights to receive such benefits, both prospectively and retrospectively.
Consent to Text Messages, Messages through the DCS Platform and Phone Calls. By agreeing to these terms, you give your explicit consent to receive text messages and phone calls from DCS or the Facilities at the phone number you provided during registration. These messages and calls will be used to communicate information specifically related to Shift Requests. It is important to note that you bear full responsibility for any costs incurred when receiving text messages, including any charges imposed by your mobile carrier for receiving such messages
Maintaining Accuracy. You represent and warrant that (i) any health-care related license numbers (e.g. Registered Nurse license number) (“Licenses”) you provide DCS in your Registration Information or otherwise are valid and in force; (ii) These License(s) will remain valid and in effect as long as you continue to submit Shift Bids for Shift Requests that require such License(s); (iii) You will promptly notify both DCS and the Facilities with whom you have agreed to provide future Professional Services in the event of any of the following: (a) suspension or prohibition from practicing in any jurisdiction, (b) revocation of any of your License(s), (c) pending disciplinary actions, including suspension, or (d) any changes to your Registration Information.
Background Information on Providers. In order to provide Professional Services through the Service, you must successfully pass a background check. This background check will be conducted by a third party engaged by the Service, and it will include various checks such as identity verification, sex offender registry checks, global watch list registry check, national criminal records check, and county criminal records check, to the extent permitted and in accordance with applicable laws. The Service or its third-party contractor will provide you with all the necessary information regarding the background check, including appropriate notice and authorization forms. Please note that additional background checks may be conducted periodically at the discretion of DCS to ensure ongoing eligibility for providing Professional Services.
PROVIDER PAYMENT, TAXES AND INSURANCE TERMS
Payment Collection. DCS will serve as a limited payment collection agent and platform for the purpose of collecting and transferring payments for Shifts from Facilities to Providers through the Services. These payments, known as Shift Fees, will be collected and remitted by DCS. We reserve the right to make adjustments or withhold a portion of the Shift Fees that may be owed to a Provider under certain circumstances. Such circumstances include situations where we reasonably believe, at our sole discretion, that a Provider or Facility has engaged in fraudulent or abusive behavior in connection with the Services, attempted to defraud other parties through their use of the Services, or failed to fulfill their obligations under this Agreement. Additionally, we may withhold or adjust Shift Fees to address valid complaints raised by Facilities or Providers.
Payment of Fees. After completing each Shift, the Facility will provide you with the Professional Services Fees through the Service, with a deduction of a Service Fee specified within the Service for the use and access to the Service, as well as payment processing. To receive the fees owed to you, you will need to provide your current bank routing and account information in your Account. DCS, along with its third-party payment processors, will transfer the Net Fees (which refers to the Professional Services Fees minus the applicable Service Fee) owed to you for each completed Shift to your designated bank account. The Net Fees will be deposited into your bank account within a reasonable timeframe after a Service Request, for which you provided Professional Services, is marked as completed on the Service. It is important to ensure that your bank account information, including your account number and routing information, is accurate and up to date. DCS disclaims any liability related to errors in fund deposits resulting from inaccurate or incomplete bank account information. If DCS is unable to collect any fees owed to you, you will be notified in writing. However, please note that DCS is not obligated to initiate collection procedures against Facilities and cannot guarantee payment from Facilities.
Taxes. You have the sole responsibility for fulfilling all tax obligations, including filing tax returns and making payments to federal, state, and local tax authorities, related to your provision of Professional Services and receipt of Net Fees or any other fees associated with Professional Services. It is your exclusive liability to comply with all relevant laws at the federal, state, and local levels. This includes adherence to laws governing self-employed individuals, if applicable, such as laws pertaining to the payment of taxes, social security, disability, and other contributions based on the fees you receive from Facilities for Completed Services or any other fees obtained through the Service. DCS will not withhold or make payments for taxes, social security, unemployment insurance, disability insurance contributions, or obtain workers’ compensation insurance on your behalf, except as otherwise specified. By accepting this agreement, you agree to indemnify and defend DCS against any and all taxes or contributions, including penalties, interest, attorney’s fees, and expenses, arising from your obligations. Please note that DCS does not provide tax advice to Users, and you should consult with a qualified tax professional for any tax-related inquiries.
Insurance. In order to perform Professional Services engagements, all Providers are required to have either Workers Compensation or Occupational Accident Insurance, as well as Professional Liability Insurance coverage. DCS has made arrangements with accredited insurance carriers to provide these types of coverage (referred to collectively as “Insurance”). Providers must obtain this Insurance coverage from DCS’s designated insurance carrier(s). A work safety fee, which may include other types of provided insurance, will be charged to Providers for the Insurance coverage. You acknowledge and agree to pay this work safety fee, and it will be deducted from the proceeds you earn for each Professional Services engagement worked. Additional information about the insurance carriers can be found on the DCS website and in the DCS App, subject to updates. By accessing and using the Platform, you give your consent and agree to these terms regarding the work safety fee and the requirement to have Insurance coverage provided through DCS’s designated insurance carrier(s).
Cancellation by Provider. When a Provider accepts a Shift, they enter into a contractual agreement with the Facility to fulfill the shift. If a Provider needs to cancel a Shift, they must notify the Facility directly and inform a DCS account manager. The Provider is required to provide a reason for the cancellation and may be asked to provide supporting documentation. The timing of the cancellation in relation to the Shift Start Time will affect the Provider’s Reliability Score, with later cancellations resulting in more significant deductions. Moreover, if the Provider cancels within a 4-hour window of the shift start time, a 2-hour restaffing fee will be charged based on their hourly bid rate, which will be deducted from their next pay check.
Penalties: To discourage repeated cancellations, the following penalties will be imposed in addition to affecting the Provider’s Reliability Score:
If a Provider has more than two (2) cancellations within a 30-day period for any reason, they will be suspended from the Platform for one week.
If a Provider cancels a Shift within two hours of the scheduled start time, they will be suspended from the Platform for one week.
If a Provider has more than two cancellations within a two-hour window of the scheduled start time, they will be suspended from the Platform for 30 days.
One (1) “No-Call, No-Show” will result in an automatic suspension from the Platform for 90 days.
Two (2) “No-Call, No-Shows” will lead to a permanent suspension from the Platform.
A Provider has up to 72 hours to dispute a “No-Call, No-Show” by providing documentation to support their case. It is at DCS’s sole discretion to accept or reject the Provider’s case. All decisions will be final.
Cancellation by Facility. If a Facility cancels a Shift where a Provider was scheduled, DCS will make an effort to find a replacement shift for the Provider at another facility in the same area and on the same date and time. If no replacement shift is available, the Provider will be compensated for half of the shift at the lowest pay rate applicable to the Shift. If the Provider declines a replacement shift, they forfeit any and all compensation associated with the cancellation.
IMPORTANT! Please make sure that you have carefully read and reviewed all the terms and conditions stated in the above TOS before electronically signing, clicking an “agree” or similar button, or using the site (“acceptance”). The TOS constitutes a legally binding agreement between you and DCS. By electronically signing, clicking an “agree” or similar button, or using the site, you confirm that you are of legal age and possess the legal capacity to enter into the TOS. Furthermore, you agree to comply with all the terms and conditions stated or referenced in the TOS. If you do not agree to these terms and conditions, refrain from electronically signing, clicking an “agree” or similar button, and do not use the site. It is necessary for you to accept and adhere to these terms and conditions as presented to you in the TOS.