ShiftWise End User License Agreement

 

ShiftWise, Inc. (“SHIFTWISE”) makes available to your legal business entity and its authorized users (“you”) the executable code versions of SHIFTWISE’s ShiftWise™ or ShiftWise Connect™ Vendor Management System (VMS) software, Internal Resource Pool (IRP) software, Staff Time Trax (STT) software, and/or VeriStaff software, and related documentation and derivative works, if any (the “SHIFTWISE PRODUCT(S)”), under the terms of this SHIFTWISE End User License Agreement (the “AGREEMENT”). 

 

BY ACCESSING AND/OR USING THE SHIFTWISE PRODUCT(S) OR CLICKING ON THE “ACCEPT” OR SIMILAR BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ARE CONSENTING TO BE BOUND BY ITS TERMS.

 

To the extent that SHIFTWISE provides you access to any updates or upgrades to the SHIFTWISE PRODUCTS, this AGREEMENT will also govern any such software updates or upgrades, except for any upgrades that are accompanied by a separate license in which case the terms of that license will govern.

 

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SHIFTWISE PRODUCT(S) OR ANY PART OF THE SHIFTWISE PRODUCT(S).

 

1.       LICENSE GRANT AND LIMITATIONS

 

a.      Grant. SHIFTWISE grants to you a non-transferable and non-exclusive right and license to access the SHIFTWISE PRODUCT(S) from its servers and use the executable code version of the SHIFTWISE PRODUCT(S).  No right is given to you or any third party to, and you shall not directly or indirectly, copy, modify, create a derivative work of, reverse engineer, reverse assemble, decompile or otherwise attempt to discover any SHIFTWISE software included in the SHIFTWISE PRODUCT(S) (including source and object code) or to sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the SHIFTWISE PRODUCT(S).  You shall not allow any third party to access the SHIFTWISE PRODUCT(S) other than authorized users within your organization. You agree not to modify the SHIFTWISE PRODUCT(S) in any manner or form, or to use modified versions of the SHIFTWISE PRODUCT(S), including, without limitation, for the purpose of obtaining unauthorized access to the SHIFTWISE PRODUCT(S).

b.     Limitations.  The software is licensed, not sold.  All rights not expressly granted herein are reserved by SHIFTWISE. Further, you agree not to copy, market or distribute the SHIFTWISE PRODUCT(S).

 

2.       TERMINATION

 

a.      Termination.   This Agreement is effective until terminated by SHIFTWISE upon written notice.SHIFTWISE may terminate this Agreement (i) immediately for a material breach of its terms that you fail to cure within thirty (30) days of your receipt of such notice, or (ii) upon termination of any services agreement between you and SHIFTWISE. Upon termination of the AGREEMENT, your right to use the SHIFTWISE PRODUCT(S) will terminate immediately and without notice, but all provisions of this AGREEMENT, except the license grant in Section 1, will survive termination and continue in effect.    

b.     Bankruptcy.    SHIFTWISE may also terminate this Agreement immediately by written notice to you if there occurs any assignment of your assets for the benefit of creditors, your dissolution, your voluntary act of bankruptcy, or any involuntary filing under any bankruptcy law against you which is not dismissed within thirty (30) days of filing.

c.      Effect.   Upon expiration or termination of this Agreement for any reason:

                                     i.           The license granted to you under this Agreement will become null and void.

                                   ii.           All outstanding obligations or commitments of either party to pay amounts to the other party, if any, will become immediately due and payable.

                                  iii.           You must destroy any back-up copies of the SHIFTWISE PRODUCT(S) in your possession. 

 

3.      PROPRIETARY RIGHTS

Except as expressly provided for in   Section 1   of this Agreement, SHIFTWISE and/or its licensors retain any and all right, title and interest in and to the SHIFTWISE PRODUCT(S). This Agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other intellectual property right of SHIFTWISE. You receive no rights to and will not sell, assign, lease, market, distribute, transfer, encumber or suffer to exist any lien or security interest on any SHIFTWISE PRODUCT(S), nor will you take any action that would cause any SHIFTWISE PRODUCT(S) to be placed in the public domain. You will not make any warranties with respect to any SHIFTWISE PRODUCT(S) beyond those made to you by SHIFTWISE under this AGREEMENT.

 

4.      CONFIDENTIAL INFORMATION

 

a.      Definition.   “Confidential Information” means all confidential and proprietary information and data, regardless of the format in which it is provided, of either party or any third party, whether or not marked “confidential” or “proprietary” or specifically identified at the time of the disclosure as confidential or proprietary or which by its nature the receiving party knows or reasonably should know is confidential is Confidential Information. Information and data, whether written or oral, which is designated by the disclosing party as confidential shall be presumed Confidential Information by the receiving party. Confidential Information shall include without limitation, the disclosing party’s trade secrets, methodologies, business plans, data, cost and price data, marketing information, software, computer and telecommunications systems, memoranda, papers, letters, e-mail, notes, plans, documentation, records, and all copies thereof, relating to the existing or planned business or technology of the disclosing party, and any software in source code or object code form, processes, specifications, or data developed in connection with this Agreement. Both SHIFTWISE and you acknowledge and agree that any information and data that SHIFTWISE, you, or any third party inputs into the SHIFTWISE PRODUCT(S) or that is generated by the SHIFTWISE PRODUCT(S) is Confidential Information.  

b.     General Nondisclosure Obligations.   The confidentiality provisions in any separate services agreement between the parties with respect to the SHIFTWISE PRODUCTS will govern the non-disclosure and use obligations of the parties with respect to Confidential Information. You agree that you will not use the SHIFTWISE PRODUCT(S) in a manner that would disclose Confidential Information to any third party in violation of your duty not to disclose such Confidential Information.

c.      Use of personnel profile information. The obligations of this Section 4 shall in no way prohibit or restrict SHIFTWISE from disclosing or delivering any clinician’s profile information to that clinician to enable him or her access to his or her profile information to review, update, modify or supplement such information and communicate the same to hospitals and/or staffing suppliers to secure staff placements.

d.     Personal Health Information (“PHI”).  You agree that you will not provide PHI to SHIFTWISE nor will you enter PHI into any SHIFTWISE software or the SHIFTWISE PRODUCT(S). Unless otherwise agreed to by the parties, SHIFTWISE will not store and will not be asked to store, PHI, on any portable laptop, desktop computer, or other removable electronic media.  “PHI” means protected health information as defined by the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated pursuant thereto (collectively, “HIPAA”).

 

5.      DISCLAIMER OF WARRANTIES

 

THE SHIFTWISE PRODUCT(S) IS PROVIDED “AS IS” WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND.  SHIFTWISE FURTHER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  SHIFTWISE DOES NOT WARRANT THAT THE SHIFTWISE PRODUCT(S) WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. SHIFTWISE’S LIABILITY FOR ANY CAUSE OF ACTION OR DAMAGES ARISING OUT OF THE USE OR PERFORMANCE OF THE SHIFTWISE PRODUCT(S) SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO SHIFTWISE OR BY YOU FOR USE OF THE SHIFTWISE PRODUCT(S).

 

6.      LIMITATION OF LIABILITY

IN NO EVENT SHALL SHIFTWISE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SHIFTWISE PRODUCT(S) INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION, (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION,) EVEN IF SHIFTWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

7.      GENERAL

 

a.      Export.  This AGREEMENT is subject to all applicable export restrictions.    You may not export or re-export the SHIFTWISE PRODUCT(S) to a national of a country that is prohibited under U.S. law without a license or a license exception from the U.S. Department of Commerce nor otherwise violate any provision of U.S. export laws.

b.     Government Use.   The SHIFTWISE PRODUCT(S) is a “commercial item” as that term is defined in 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202.1 through 227.7202.4, all U.S. Government end users acquire the SHIFTWISE PRODUCT(S) with only those rights set forth therein. 

c.      Governing Law.     Unless otherwise agreed to in writing by SHIFTWISE and you, this AGREEMENT will be governed by the laws of the State of Oregon, without regard to any conflicts of law rules or principles, and the federal and state courts for Multnomah County, Oregon shall have jurisdiction over any disputes, claims or controversies arising out of or related to this AGREEMENT, and you irrevocably waive any objection to the jurisdiction of such courts.  

d.     Copyright.    The SHIFTWISE PRODUCT(S) are protected by the United States Copyright Law and International Treaties.  Unauthorized reproduction and distribution is subject to civil and criminal penalties. © 2011 - 2019 - SHIFTWISE.

e.      Assignment and Binding Effect.  You may not assign this AGREEMENT or the license granted hereunder without the express written consent of the other party, other than in connection with an acquisition of all or substantially all of you business, stock or assets by merger, sale or otherwise, and any attempt to do so will be void.

f.       Notices.   Any notice required to be sent to a party under this AGREEMENT will be in writing, effective on receipt by that party, and will be sent by fax, first-class mail or personal delivery to the address provided to the other party.

g.      Waiver and Severability.   The waiver of one breach or default under this AGREEMENT will not constitute the waiver of any subsequent breach or default. Any provision of this AGREEMENT held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this AGREEMENT will continue in full force and effect. 

h.     Excusable Delays.   SHIFTWISE will not be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency and shortage of materials.

i.       Construction and Complete Agreement.    If any provision of this AGREEMENT is held to be unenforceable, that provision will be enforced to the extent permitted by law, and the remaining provisions will remain in full force and effect.  This AGREEMENT and any separate services agreement between the parties with respect to the SHIFTWISE PRODUCTS are the complete agreement between us with respect to the subject matter therein, and supersede any prior agreement, or understanding, whether oral or written, with respect to the subject matter therein. SHIFTWISE may make changes to this AGREEMENT from time to time, and shall provide you prior written notice of such changes. When such changes are made, SHIFTWISE will make a new copy of this Agreement available to you, via notice sent to your email address or via the online entry point for the SHIFTWISE PRODUCTS. You acknowledge and agree that to continue use of the SHIFTWISE PRODUCTS you will be required to accept such updated Agreement. In the event of a conflict between this AGREEMENT, or any updated version of this AGREEMENT, and any separate services agreement between the parties with respect to the SHIFTWISE PRODUCTS, the most current version of this AGREEMENT shall control.