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Terms of Service

These Terms of Service (“Terms of Service”) govern your access to and use of the AllShifts websites (including AllShifts.com and AllShifts.app) and the AllShifts mobile applications (including AllShifts Marketplace) (collectively, the “Site”), as well as any services offered on or in connection with the Site, including without limitation, customer support services (collectively, the “Services”). This is a legally binding agreement between you and AllShifts Marketplace, LLC (“we”, “us” or “AllShifts”).

The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any business entities or other organizations that register accounts or otherwise access or use the Services through their respective representatives.

AllShifts Marketplace, LLC operates an online marketplace, accessed through the Site, that allows third-party Facilities (each, a “Facility”) to post open shifts at facilities (each, a “Facility”), and allows independent contractor professionals (each, a “Professional”) to view and sign up to work such shifts if they so choose.

By signing up for an AllShifts account or by otherwise using the Site or the Services (regardless of whether you register as a User of the Services), you are agreeing that you have read, understand, and agree to be bound by these Terms of Service.

If you agree to the Terms of Service on behalf of a business entity or other organization, you represent and warrant that you have the authority to bind that entity or organization to the Terms of Service and agree that you are binding both you and that entity or organization to the Terms of Service. In that event, “you” and “your” will refer and apply to both you and that entity or organization.

By using the Site or the Services, you also acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with AllShifts Privacy Policy, which is incorporated into these Terms of Service by reference. You also agree to abide by any additional Marketplace Terms or other requirements for Users that are published on the Site. Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.

If you do not agree or are unable to agree to be bound by these Terms of Service, do not use the Site or the Services.

We may amend these Terms of Service at any time by posting the amended Terms of Service on the Site. When changes are made, we will make the revised version available on this webpage and will indicate at the top of this page the date that revisions were last made. If we make a material change to the Terms of Service, we will notify you by sending a notice to the email address registered to your account and/or by posting a notice on our Site. Your use of the Site or the Services after the effective date of any changes to these Terms of Service (“Effective Date”) will constitute acceptance by you of such changes.

1. ALLSHIFTS ACCOUNTS

1.1 REGISTRATION AND ACCEPTANCE

By registering for an account to use the Services and Site (an “Account”), by using the Site or Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by these Terms of Service.

To access and use certain portions of the Site and the Services, you must register for an Account. Subject to the Site and Services Terms of Use, certain portions of the Site are available to you as a visitor to the Site (“Site Visitor”), including before your Account registration has been accepted. We reserve the right to decline a registration for an AllShifts Account for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.

1.2 ACCOUNT ELIGIBILITY

AllShifts offers the Site and Services for your business purposes only and not for personal, household, or consumer use. To register for an Account to use the Site and Services, you hereby represent that you: (a) will use the Site and Services for business purposes only; (b) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can enter into legally binding agreements; (c) have not been previously suspended or removed from the Site or the Services, or engaged in any activity that could result in suspension or removal from the Site or the Services; and (d) have full power and authority to enter into these Terms of Service and in so doing will not violate any other agreement to which you are a party.

1.3 ACCOUNT PROFILE

To register for an Account, or add an Account type, to use the Site and Services, you must complete a User profile (“Profile”), which you consent to be shown to other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, or the services your business provides and to correct any such information that is or becomes false or misleading.

1.4 IDENTITY AND ACCOUNT VERIFICATION

When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, your business, and your ability to act on behalf of your business on AllShifts or AllShifts Marketplace. You authorize AllShifts, directly or through third parties, to make any inquiries AllShifts deems necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.

1.5 USERNAMES AND PASSWORDS

When you register for an Account, you may be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize AllShifts to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service.

2. RELATIONSHIP BETWEEN ALLSHIFTS MARKETPLACE, LLC AND USERS

2.1 ALLSHIFTS MARKETPLACE, LLC ROLE AS A MARKETPLACE

AllShifts merely makes the Site and Services available to enable Professionals and Facilities to find and transact directly with each other. AllShifts does not introduce Professionals to Facilities or vice versa; select shifts or Facilities for Professionals; or select Professionals for Facilities. Through the Site and Services, Professionals have access to Facilities that may be seeking the services they offer, and Facilities have access to Professionals who may offer the services they seek. Users alone decide which shift, if any, to post or book on AllShifts Marketplace. In addition, Users alone are responsible for evaluating and determining the suitability of any shift, Facility or Professional.

AllShifts and AllShifts Marketplace, LLC has no responsibility, whether relating to payment or otherwise, with respect to any shift that is not posted on the Site and confirmed by a Facility.

2.2 USERS ARE INDEPENDENT FROM ALLSHIFTS

All Professionals who offer services on AllShifts Marketplace shall be independent contractors of AllShifts. No Professional will be an employee of AllShifts. Nothing in these Terms of Service is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between AllShifts, AllShifts Marketplace, LLC and a User. Users, including, without limitation, Facilities and Professionals, acknowledge they have no authority to bind AllShifts or its affiliates and they shall not hold themselves out as an employee, agent or authorized representative of AllShifts or any its affiliates.

Facilities are solely responsible for and have complete discretion with regard to their use of and activities on AllShifts Marketplace, including which, if any, shifts they post, and actions they take and decisions they make with respect to any Professionals with whom they connect for shifts. No actions or decisions of a Facility shall in any way affect the relationship of Professionals with AllShifts, which shall remain that of an independent contractor under all circumstances.

2.3 DESIGNATION TO ALLSHIFTS

By utilizing the Marketplace and accepting these Terms of Service, You authorize AllShifts Marketplace, LLC to (A)formalize contracts and agreements on your behalf between you and any Facility as related to any transaction shift you have accepted on the Marketplace and apply the signature you have provided to any contracts and agreements between you and any Facility as related to any transaction shift you have accepted on the Marketplace, and (B) bill Facilities and collect funds on your behalf from any Facility related to any transaction or shift you have accepted on the Marketplace.

2.4 NO GUARANTEES BY ALLSHIFTS

AllShifts does not make any representations about or guarantee the truth or accuracy of information contained in any User Profile or other User Content on the Site. You acknowledge, agree, and understand that AllShifts does not, in any way, supervise, direct, control, or evaluate Professionals or their work, or Facilities or their Facilities.

2.5 FORM OF CONTRACTOR AGREEMENT

By utilizing the Marketplace and accepting these Terms of Service, You authorize AllShifts Marketplace, LLC to utilize the terms of contract when formalizing an independent contractor agreement found at the following link https://allshifts.com/icat/. The terms of the contract may be changed or updated without further notice as required by federal, state or local law.

3. ALLSHIFTS TERMS

To help ensure the successful operation of AllShifts and the positive experience of Users, you agree to abide by the following Terms. In the event that we believe or determine that your Account has violated any of our Marketplace Terms, we reserve the right to review, restrict, suspend, and or/permanently deactivate your Account at our sole discretion.

3.1 SAFETY AND SUPERVISION BY FACILITIES

(a) You acknowledge and agree that you will conduct yourself both on AllShifts App, Marketplace and during any shift booked using AllShifts App or Marketplace in accordance with all applicable laws, regulations, and professional standards, including relating to safety, such as, but not limited to, medication administration, documentation procedures, patient rights, Infection Prevention, Fire and Safety, OSHA, and EMR/Charting, where applicable.

(b) Professionals acknowledge and agree to follow Facilities’ policies, procedures, and protection protocols. It is the sole responsibility of Facilities to monitor and enforce all policies and procedures with Professional, both by including such information in Facilities’ User Profiles on the Site and notifying Professionals of such information when they arrive and carry out their responsibilities at Facilities’ Facilities. AllShifts assumes no liability for any equipment or technology that Facilities provide to Professionals, or for any policies, procedures, protection protocols, or enforcement measures of Facilities.

(d) Facilities’ appropriate personnel shall supervise Professionals, and Facility will evaluate services provided by Professionals pursuant to Facilities’ own policies, procedures, and standards. Users acknowledge and agree that AllShifts does not and will not supervise, monitor, or evaluate Professionals in the performance of their duties and responsibilities at Facilities or otherwise.

(e)You agree to notify AllShifts if you become aware of a safety concern or unlawful conduct during a shift posted or booked using AllShifts marketplace. Any such notification to AllShifts should be completed via contact with an AllShifts Account Manager, accessible through the Site.

3.2 CANCELLATIONS

AllShifts reserves the right to restrict, suspend, and/or deactivate a User’s Account that has canceled or failed to appear for one or more shifts that were posted or booked using AllShifts App or AllShifts Marketplace.

3.3 “DO NOT RETURN” LIST (DNRs)

If at any time you decide that you do not wish to be matched on AllShifts App or AllShifts Marketplace. with any other AllShifts User in the future, you may add that User to your “Do Not Return” (“DNR”) list in your Account. DNRs must be entered in accordance with the other Marketplace Terms provided in these Terms of Services. AllShifts reserves the right to review, restrict, suspend, and/or permanently deactivate a User’s Account that has received one or more DNRs.

3.4 ACCOUNT REVIEWS

If a User’s Account engages in suspicious activity involving cancellations or activity otherwise negatively impacting the experience of other marketplace Users, AllShifts reserves the right to place that Account under temporary review. During that temporary Account review period, the Account’s previously booked shifts will not be affected, but the Account may be prohibited from booking additional shifts.

3.5 BACKGROUND CHECKS

If a Facility requests or requires that a Professional provide a background check prior to providing services at that Facility, by accepting this Terms of Service you authorize AllShifts to investigate your background (through formal background checks or other means) and any other matter related to your suitability to provide Services and share such results with a requesting Facility.

3.6 SMS/Text Messaging Opt In and Electronic communications

You consent to receive text messages and emails from AllShifts or others acting on the AllShifts’ behalf. As part of this consent, You represent and warrant the following: (A) AllShifts or others acting on AllShifts’ behalf may send text messages in various formats and with various contents, including but not limited to, text messages about available shifts, confirmation of shifts and other information related to services, policies and other transactions, or marketing products, opportunities and services offered by AllShifts. (B) You are the owner or authorized user of the mobile phone number you provided.  You will notify us immediately if you are no longer the owner or authorized user of the mobile phone number identified below. (C) You are solely responsible for any message and data charges associated with such text messages. (D) You have received, have read, and understand the text messaging terms and conditions provided by AllShifts.  By accepting these Terms of Service, you agree to comply with the terms and conditions. (E) To stop receiving text messages from AllShifts, text STOP to the ten digit long code from which the text messages are being sent or hit the unsubscribe link in the email. You may also opt out by providing written notice to AllShifts at 494 Broad Street 4th Floor Newark NJ 07102.

3.7 OTHER MARKETPLACE TERMS RELATING TO USE OF THE SITE OR SERVICES

Without limiting other terms and prohibitions in these Terms of Service, by using the Site or the Services, you agree that:

(a) You will only use the Site or the Services for lawful purposes and in accordance with all applicable laws, including relating to copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.  You will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms or is intended to harm other Users or AllShifts employees or agents.

(b) You will not use another User’s account or identity or impersonate any person or entity.

(c) You will not use the Site or Services to cause nuisance, annoyance or inconvenience.

(d) The information you provide to us when you register for an Account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.

(e) You will keep secure and confidential your Account password or any other identification credentials we provide you that allow access to the Site or Services.

(f) You will not engage in threatening, harassing, racist, sexist, violent, hateful, unlawful, or any other behavior that AllShifts deems inappropriate (as determined by AllShifts in its sole discretion) when using the Site or Services.

(g) You will not abuse our promotional system, including by redeeming multiple offers or coupons at once or by opening multiple Accounts to benefit from offers or promotions available only to first-time users of the Site or Services.

(h) You will only access the Site or Services using means explicitly authorized by AllShifts.

(i) You will not forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Site or Services.

(j) You will not use the Site or Services, or any content accessible through the Services, for any promotional purpose, including but not limited to contacting, advertising to, soliciting or selling to, any User, unless AllShifts has given you prior permission to do so in writing.

(k) You will not copy or distribute the software used by AllShifts, the Site, or the Services or any content displayed through the Site or Services for republication in any format or media.

(l) You will not compile, directly or indirectly, any content displayed through the Site or Services except for your personal, noncommercial use.

(m) You will use the Site and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Site or Services to a third party.

(n) You will not use the Site or Services in any way that could damage, disable, overburden or impair any AllShifts server, or the networks connected to any AllShifts server.

(o) You will not attempt to gain unauthorized access to the Site or Services and/or to any Account, resource, computer system, and/or network connected to any AllShifts server.

(p) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures AllShifts may use to prevent or restrict access to the Site or Services or use of the Site or Services or the content therein.

(q) You will not deep-link to the Site or access the Site manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of the Site or any content on the Site.

(r) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Site or Services.

(s)You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Site or the Services.

(t) AllShifts may, in AllShifts’ sole discretion, permit you from time to time to submit, upload, publish, transmit or otherwise make available to AllShifts and/or other Users content and/or communications using the Site or Services (collectively, “User Content”). Any User Content provided by you remains your property. However, by providing User Content using the Site or Services, you grant AllShifts a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and AllShifts’ business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

(u) You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant AllShifts the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor AllShifts’ use of the User Content as permitted herein will infringe, misappropriate or violate a third-party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(v) You agree not to provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by AllShifts in its sole discretion, whether or not such material may be protected by law. AllShifts may, but shall not be obligated to, review, monitor, and remove User Content, at AllShifts’ sole discretion and at any time and for any reason, without notice to you.

(w) You agree to abide by any such other terms, restrictions, or prohibitions as AllShifts may, in its sole discretion, from time to time publish and/or modify on the Site.

4. PAYMENT METHODS

In order to use certain of the Services or to receive payment for services provided to a Facility, a User must provide account information for at least one valid payment method.

You hereby authorize AllShifts to run credit card authorizations on all credit cards provided by you, to store credit card and banking or other financial details as your method of sending or receiving payment, and to charge your credit card (or any other payment method) for the fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your payment method information.

By providing payment method information through the Site and authorizing payments with the payment method, you represent, warrant, and covenant that: (a) you are legally authorized to provide such information; (b) you are legally authorized to make payments using the payment method; (c) if you are an employee or agent of a company or person that owns the payment method, then you are authorized by the company or person to use the payment method to make payments on AllShifts; and (d) such actions do not violate the terms and conditions applicable to your use of such payment method or applicable law.

When you authorize a payment using a payment method via the Site, you represent and warrant that there are sufficient funds or credit available to complete the payment using the designated payment method. To the extent that any amounts owed under these Terms of Service cannot be collected from your payment method, you are solely responsible for paying such amounts by other means.

AllShifts is not liable to any User if AllShifts does not complete a transaction because of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such payment method.

AllShifts may collect information which may then be provided in the form of a W-9 to facilities as required by Federal, State or Local law. By utilizing the Services, User grants AllShifts the right to share such information and apply Users’ signature on such W-9 form. AllShifts makes no representations or warranties regarding any User’s tax obligations or liabilities concerning the usage of the Site.

5. COMMUNICATING THROUGH THE SITE OR THE SERVICES

The provisions of this Section 5 apply to any interaction between Users via the Site or the Services. Users agree to use the communication services available on the Site to communicate with other Users regarding their engagement with each other, including rate negotiations, discussion of other terms, arrival details to the location, pre-work requirements prior to arrival, and coordination during shifts.

You are prohibited from using the communication services to post or transmit any unlawful, threatening, libelous, defamatory, obscene, pornographic, illegal, or any material that could constitute conduct that would be considered a criminal offense, could violate the rights of any party, or could otherwise violate any law or give rise to civil or criminal liability.

In all cases, we reserve the right, but are not obligated, to remove any content, message, or transmission you have made for any or no reason, including but not limited to, messages that, in our sole discretion, violate these Terms of Service. We also reserve the right to suspend or permanently deactivate your Account, if we determine, in our sole discretion, that you violate these Terms of Service.

6. WARRANTY DISCLAIMER

Except to the extent that you and AllShifts have otherwise agreed in writing, you agree not to rely on the Site, the Services, any information on the Site, or the continuation of the Site. The Site and the Services are provided “as is” and on an “as available” basis. AllShifts makes no representations or warranties with regard to the Site; the Services; work product; textual, audio, and/or visual content and information, and submission of entries for competitions and promotions; or any activities or items related to these Terms of Service. To the maximum extent permitted by applicable law, AllShifts disclaims all express and implied conditions, representations, and warranties including, but not limited to, the warranties of merchantability, accuracy, fitness for a particular purpose, title, and non-infringement. Some jurisdictions may not allow for all of the foregoing limitations on warranties, so to that extent, some or all of the above limitations may not apply to you. Section 8 (Termination of Terms of Service) states your sole and exclusive remedy against AllShifts with respect to any defects, non-conformances, or dissatisfaction.

7. LIMITATION OF LIABILITY

Except to the extent that you and AllShifts have otherwise agreed in writing, AllShifts is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:

Your use of or your inability to use our Site or Services;

Delays or disruptions in our Site or Services;

Viruses or other malicious software obtained by accessing, or linking to, our Site or Services;

Glitches, bugs, errors, or inaccuracies of any kind in our Site or Services;

Damage to your hardware device from the use of the Site or Services;

The content, actions, or inactions of third parties’ use of the Site or Services;

Reviews, ratings, suspensions, deactivation, or other action taken with respect to your Account;

Your reliance on the quality, accuracy, or reliability of posted shifts, User Profiles, ratings, recommendations, and feedback (including their content, order, and display), composite information, or metrics found on, used on, or made available through the Site; and

Your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.

In addition, in no event will AllShifts, our affiliates, our licensors, or our third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities. These limitations will apply to any liability, arising from any cause of action whatsoever arising out of or in connection with these Terms of Service, whether in contract, tort (including negligence), strict liability, or otherwise, even if advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose. Some states and jurisdictions do not allow for all of the foregoing exclusions and limitations, so to that extent, some or all of these limitations and exclusions may not apply to you.

8. TERMINATION OF TERMS OF SERVICE

8.1 TERMINATION

Except to the extent that you and AllShifts have otherwise agreed in writing, either of us may terminate these Terms of Service in our sole discretion, at any time, without explanation, upon written notice to the other, except as otherwise provided herein. In the event you properly terminate these Terms of Service, your right to use the Site and Services will be automatically revoked, and your Account will be permanently deactivated. You understand and acknowledge that termination of these Terms of Service (or attempt to terminate these Terms of Service) does not terminate or otherwise impact any obligation to pay outstanding fees. You will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open invoice, whichever is later, to AllShifts for any Services or such other amounts owed under the Terms of Service.

Without limiting AllShifts other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Services to you if: (i) you breach the letter or spirit of any terms and conditions of these Terms of Service or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or AllShifts or our affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is deactivated, you may not use the Site under the same Account or a different Account or re-register under a new Account without AllShifts prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available payment method to pay for any amounts owed by you to the extent permitted by applicable law.

You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of a User’s Account status to all Users, including both yourself and other Users.

8.2 SURVIVAL

After these Terms of Service terminate as to you, the provisions of these Terms of Service that expressly or by their nature contemplate performance after such termination will survive and continue in full force and effect. Without limiting any other provisions of these Terms of Service, the termination of these Terms of Service for any reason will not release you or AllShifts from any obligations incurred prior to such termination or that thereafter may accrue in respect of any act or omission prior to such termination.

9. DISPUTES BETWEEN YOU AND ALLSHIFTS

9.1 DISPUTE RESOLUTION AGREEMENT

  1. I and AllShifts (“the Company”) agree to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to my application for employment and/or employment by the Company. Such disputes include, but are not limited to, claims I might bring against the Company for wrongful termination, discrimination, harassment, retaliation, breach of contract, wage and hour violations, and torts such as invasion of privacy, assault and battery, or defamation. Such disputes also include claims that the Company might bring against me such as, for example, theft of money or trade secrets, breach of a confidentiality agreement, or breach of a contract. I and the Company each specifically waive our respective rights to bring such claims against the other in a court of law and to have a trial by jury.
    1. The only exceptions to binding arbitration shall be for claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits or other forms of compensation under the my state of residence (“State” or “My State”) Workers’ Compensation Act, claims for benefits brought before my State Employment Development Department or similar agency, individual claims for wages brought before the my State Labor Commissioner or similar agency, or other claims that are not subject to arbitration under law, including but not limited to claims for sexual harassment and/or sexual assault brought under state or federal law unless I voluntarily elect to submit such claims to arbitration. Moreover, nothing herein shall prevent me from filing a charge or complaint with the United States Equal Employment Opportunity Commission, my State Employment Agency, or any local agency that allows me to file an administrative charge or complaint. Once the agency’s proceedings are completed, however, if I wish to pursue the matter further, I understand that I must do so under this Agreement.
    1. My agreement to arbitrate claims against the Company includes claims I might bring against the Company’s parent, subsidiaries, affiliates, customers, alleged site employers, or Facility entities as well as against owners, directors, officers, managers, employees, agents, contractors, attorneys, benefit plan administrators, and insurers of the Company or of its parent, subsidiaries, affiliates, customers, or Facility entities. I also agree to arbitrate claims against any person or entity I allege to be a joint employer with the Company.
    1. Both I and the Company agree that any claims we might pursue against the other in arbitration under this agreement shall be brought in my individual capacity or that of the Company. This agreement shall not be construed to allow or permit the consolidation or joinder of claims of other claimants, or to permit such claims to proceed as a class, representative, or collective action. No arbitrator shall have the authority under this agreement to order any such class, representative, or collective action. Any dispute regarding the validity, scope or enforceability of this agreement, or concerning the arbitrability of a particular claim, shall be resolved by a court, not by the arbitrator. I agree to waive any substantive or procedural rights that I may have to bring or participate in an action brought on a class, representative, or collective basis. If under applicable state law in My State a representative claim (such as California Private Attorneys General Act (“PAGA”)) is found to be unwaivable and such an action is pursued in court, I and the Company agree that any such representative claim will be severed and stayed pending resolution of claims that are arbitrable.
    1. If I wish to bring a claim to arbitration under this agreement, I understand that I must provide written notice of such a claim to Legal@AllShifts.com. I understand that I have the right to be represented by an attorney in the arbitration of any claim under this agreement, but it is not required that I have an attorney. I further understand that I must present notice of any claim in arbitration before the statute of limitations expires for that type of claim.
    1. At the beginning of any arbitration process under this agreement, I and the Company will need to select an arbitrator by mutual agreement. Such an arbitrator shall be a retired State Superior Court Judge, retired United States District Court Judge or Magistrate, or another qualified and impartial person that I and the Company decide upon, and shall be subject to disqualification on the same grounds as would apply to a judge in a court proceeding. In the event we cannot agree on the selection of an arbitrator, I and the Company will select an alternative dispute resolution provider and request from that provider a list of an odd number of potential arbitrators. From that list we will alternatively strike arbitrators, with the Company going first, until one arbitrator is left. That arbitrator shall be the arbitrator who will hear our case. If I and the Company cannot agree on an alternative dispute resolution provider, an arbitrator will be appointed according to law.
    1. Any arbitration proceeding under this agreement shall proceed under and be governed by the Federal Arbitration Act (“FAA”) because both I and the Company are engaged in interstate commerce. To the extent they are not contrary to the FAA, the arbitrator shall have the same authority as a state or federal court would have to issue subpoenas to third parties for production of documents and for depositions, in addition to subpoenas to appear at any arbitration hearing. In any arbitration proceeding under this agreement, all of my State rules of pleading (including the right of demurrer), all rules of evidence, all rights to resolution of the dispute by means of motions for summary judgment, judgment on the pleadings, shall apply and be observed, unless I and the Company agree otherwise. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. Likewise, all communications during or in connection with the arbitration proceedings are privileged the arbitrator’s award(s) shall include the arbitrator’s written reasoned opinion. Resolution of all disputes shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of “just cause”) other than such controlling law.
    1. I and the Company agree to split the costs of arbitration, but I and the Company will be responsible for our own costs and for our attorneys’ fees should we choose to be represented by counsel, unless the arbitrator shifts one party’s costs and attorneys’ fees to the other party. It is expressly agreed that in the event of any dispute, the prevailing party shall be entitled to receive from the non-prevailing party and the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the prevailing party. in accordance with applicable law. It is agreed that the Company shall not be responsible for paying the arbitrator’s fees and costs for the arbitration hearing sooner than 60 days before the commencement of the arbitration hearing.
    1. If any term or provision or any portion of this agreement is deemed invalid or unenforceable, it shall be severed, and the remainder of this agreement shall be enforceable. Under no circumstances shall this agreement be construed to allow arbitration on a class, collective, representative, or other similar basis, however. I acknowledge that this Agreement is not intended to interfere with my rights to collectively bargain, to engage in protected, concerted activity, or to exercise other rights protected under the National Labor Relations Act.
    1. By Accepting this Terms of Service I confirm that I have had time to read this agreement and ask the Company’s representative any questions I had about the agreement prior to signing this agreement.

10. GENERAL

10.1 ENTIRE AGREEMENT

These Terms of Service set forth the entire agreement and understanding between you and AllShifts relating to the subject matter hereof and, except as provided below, cancel and supersede any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, with respect to such subject matter.

The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though AllShifts drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or AllShifts because of the authorship of any provision of the Terms of Service.

10.2 MODIFICATIONS; WAIVER

No modification or amendment to the Terms of Service will be binding upon AllShifts unless it is agreed to in a written instrument signed by a duly authorized representative of AllShifts or posted on the Site by AllShifts. Email will not constitute a written instrument as contemplated by this Section 10.2. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms of Service.

10.3 ASSIGNABILITY

You may not assign the Terms of Service, or any of its rights or obligations hereunder, without AllShifts’s prior written consent in the form of a written instrument signed by a duly authorized representative of AllShifts. AllShifts may freely assign these Terms of Service without your consent. Any attempted assignment or transfer in violation of this Section 10.3 will be null and void.

Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.

10.4 SEVERABILITY; INTERPRETATION

If and to the extent any provision of these Terms of Service is held to be illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective only as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

10.5 FORCE MAJEURE

The parties to these Terms of Service will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.

10.6 PREVAILING LANGUAGE AND LOCATION

The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any.

10.7 CONSENT TO USE ELECTRONIC RECORDS

In connection with the Site and Services Terms of Use, below, you may be entitled to receive, or we may otherwise provide, certain records from AllShifts or our affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.