Nursegrid SaaS Service Master Services Agreement

This Master Services Agreement and any and all Subscription Services Forms or Order Forms executed in connection with it (each an “Order Form”) constitutes a contract (together with all Order Forms, the “Agreement” or “MSA”) between Business Subscriber (as defined in the Nursegrid Terms of Use) and Nursegrid powered by HealthStream, Inc. (together, with subsidiaries and affiliates, “Company”, “us” or “we”) as the provider of the Nursegrid application, our paid premium SaaS Service, and any products or services we provide in connection with the SaaS Service (collectively, the “Services”). This Agreement describes Business Subscriber’s rights and obligations with respect to access and use of the Services, as described below. In the event of a conflict or inconsistency between this Agreement and a Subscription Services Order Form, the Order Form shall prevail concerning the subject matter therein. Additional, separate terms and conditions may apply to certain Services, each of which will be considered to form part of this Agreement.

1. By subscribing to the Services as a Business Subscriber, Business Subscriber accepts and agrees to be unconditionally bound by this MSA as well as the Nursegrid Terms of Use and Privacy Notice, each incorporated herein by this reference. Capitalized terms used in this Agreement but not defined have the meanings given them in the Terms of Use.
2. This Agreement is effective on the date Business Subscriber clicks to subscribe to the Services (the “Effective Date”) and continues for the duration of Business Subscriber’s chosen subscription as defined in the applicable Order Form (the “Term”), unless earlier terminated as set forth herein. At the end of the initial Term, this Agreement with automatically renew for a Term of equal duration unless either party provides at least 30 days’ written notice of non-renewal to the other party or otherwise terminates this Agreement in accordance with this MSA.
3. License Grant. Subject to this Agreement and the Terms of Use, we hereby grant Business Subscriber a non-exclusive, non-transferable, non-sub-licensable, revocable and limited license to download, install, and use the Services for Business Subscriber and its employees and contractors who are authorized by Business Subscriber to use the Services under Business Subscriber’s subscription (each an “Authorized User”), to each use for their own personal, internal business or noncommercial purposes. The Services are licensed, not sold. Nothing in this Agreement is intended to, or may be construed as, conferring by implication, estoppel or otherwise any ownership, license, or other grant of right to any copyright, trademark, or other intellectual property of Company or any third party, except as expressly provided herein. Company reserves all rights not expressly granted in this MSA.
4. Subscription Fees and Payment. Business Subscriber hereby agrees to pay all charges and fees as set forth in the Subscription Services Form or Order Form for access to the Services (“Subscription Fee”). Business Subscriber shall pay all Subscription Fees for the initial Term on or before the Order Form effective date. Upon automatic renewal of the Term, Business Subscriber will be automatically invoiced for Subscription Fees applicable to the renewal Term, with each invoice due and payable within ten (10) calendar days after the invoice date. Business Subscriber shall make all payments hereunder in U.S. dollars by credit card via our online payment portal or to such other address or methods as we may specify in the Order Form, invoice, or otherwise in writing from time to time. If Business Subscriber removes an Authorized User, or the Authorized User cancels their subscription to the Services, such cancellation is effective at the end of the then-current billing period. We reserve the right to change our subscription levels and features offered or adjust our Subscription Fees or any components thereof in any manner and at any time by giving Business Subscriber thirty (30) days’ written notice of such change, at which time the Order Form will be deemed amended accordingly.

If Business Subscriber fails to make any payment when due then, in addition to all other remedies that may be available to us: (a) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Business Subscriber shall reimburse us for all costs we incur in collecting any late payments or interest, including reasonable attorneys’ fees, court costs and collection agency fees; and (c) if such failure continues for ten (10) or more days following written notice thereof, we may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Business Subscriber, its Authorized Users, or any other person by reason of such suspension.

5. No Employment Relationship. Business Subscriber acknowledges and agrees that this MSA does not create an employer-employee relationship between Company, Business Subscriber and/or any Authorized User in any manner, and that neither Business Subscriber nor any of its Authorized Users will be entitled to participate in and/or receive any benefits from Company under any circumstances. Business Subscriber further acknowledges and agrees on behalf of itself and its Authorized Users that Company has no obligation to withhold any income or other payroll taxes on its behalf and that Business Subscriber is solely responsible for compliance with all state, federal, and local laws pertaining to the withholding and payment of taxes upon any compensation Business Subscriber or its Authorized Users may pay or receive related to use of the Services. Without limiting the generality of this paragraph, Business Subscriber hereby agrees that under no circumstances shall Company be liable for or a party to any matter between Business Subscriber and its Authorized User related to employment issues or any other type of dispute. Business Subscriber shall indemnify, defend, and hold harmless Company from and against any losses that Company incurs as a result of any breach of Business Subscriber’s obligations under this provision.
6. Support and Maintenance. Company may, upon request by Business Subscriber and at our sole discretion, provide maintenance or support services to Business Subscriber pursuant to a separate license or services agreement in exchange for consideration in the form of a fee. Business Subscriber acknowledges and agrees that Company has no obligation to (a) provide updates, upgrades, bug fixes or modifications to the Services or (b) maintain or support the Services for the unique benefit of Business Subscriber.
7. Service Availability. In addition to the provisions in the Terms of Use governing Service Access, Business Subscriber understands that from time to time, the Services may be inaccessible or inoperable for any reason, including without limitation, equipment malfunctions, periodic maintenance, or causes beyond our control or which are not reasonably foreseeable by Company such as the interruption of telecommunication or digital transmission links. Business Subscriber acknowledges and agrees that Company will make commercially reasonable efforts to maintain availability of the Services during all subscribed to times and to notify Business Subscriber of any planned downtime or unavailability. Notwithstanding the foregoing, Company will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period.
8. Business Subscriber Obligations. In addition to and without limiting Business Subscriber’s obligations and responsibilities as set forth in the Terms of Use and other agreements with Company, Business Subscriber hereby agrees to:
   1. Limit access to the Services to its Authorized Users, and to notify us immediately if Business Subscriber becomes aware of any unauthorized use of or access to the Services.
   2. Use the Services only in a manner that complies with all laws, ordinances, or governmental rules or regulations to which Business Subscriber and its Authorized Users are subject, including without limitation laws governing intellectual property, consumer privacy, export controls, labor and employment, and taxes (collectively, “Applicable Laws”) and all policies and protocols governing use of the Services, including without limitation the Nursegrid Privacy Notice. Business Subscriber is solely responsible for its and its Authorized Users’ compliance with all Applicable Laws and our policies and protocols. We cannot and will not be responsible for any use of the Services in a manner that violates Applicable Laws or our policies and protocols.
   3. Obtain and maintain in effect all licenses, certificates, permits, franchises, and other governmental authorizations necessary to perform any work or conduct any business via or related to Business Subscriber’s use of the Services.
   4. Be solely responsible for all acts and omissions of its Authorized Users (including contractors) in connection with their use of the Services.
   5. Obtain and maintain all hardware and equipment needed to access and use the Services, and be solely responsible for all telephone, internet, and maintenance charges related thereto.
   6. Not (i) rent, lease, distribute, sell, sublicense, or transfer to any third party all or any part of its right to access and use the Services; (ii) reverse engineer, disassemble or decompile the Services or any applications associated with the Product or Service; (iii) modify the Services; (iv) use the Services to create, receive, maintain, or transmit any information that would be considered Protected Health Information under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 45 CFR 160.103; (v) use the Services for unlawful purposes; or (vi) permit Authorized Users or any other party from doing any of the preceding.
9. Business Subscriber acknowledges and agrees that the Services contain Company’s confidential and proprietary information, and Business Subscriber agrees that it will not disclose such information to any party or use the information contained on the Services in any manner or for any purpose except in accordance with this MSA. This paragraph shall survive termination or expiration of this MSA with respect to any such information Business Subscriber retains thereafter.
10. Terms of Use. The parties hereto unconditionally agree that the provisions of this MSA are in addition to and in no way limit the Nursegrid Terms of Use or the terms and conditions of any other agreement between Business Subscriber and Company. Without limiting the generality of the foregoing, the provisions in the Terms of Use governing Eligibility, Privacy, Not Career, Medical, or Other Professional Advice, License Grant, Service Access, Relationship of Parties, Disclaimer of Warranties, Limitation of Liability, Indemnification, Class Action Waiver, Dispute Resolution, Arbitration, and General shall apply and be fully enforceable as to this Agreement.
11. Intellectual Property and Limited Remedy. In addition to and without limiting any provisions in the Terms of Use, Company represents and warrants that, to Company’s knowledge, no portion of the Services provided or licensed under this MSA does or will infringe, misappropriate, dilute, or otherwise violate intellectual property or other rights of any third party under United States law. If the Services are found to be infringing and use thereof subsequently prohibited by court order, Company shall at its option do one of the following: (a) obtain a valid license to the infringed-upon component for Business Subscriber; (b) replace the Services with a non-infringing version offering comparable features; (c) modify the Services so it is non-infringing, but of commercially reasonable comparable features or (d) refund the Subscription Fees paid by Business Subscriber for the infringing portion of the Services on a pro-rated basis. Company’s obligations under this paragraph are Company’s sole liability to Business Subscriber for any alleged or proven infringement.
12. This Agreement may be terminated as set forth in the Terms of Use or by Business Subscriber by providing notice of non-renewal to Customer Service at support@nursegrid.com or 1 (866) 635-8151. Additionally, we reserve the right to immediately and without liability suspend performance, deactivate Business Subscriber’s or any Authorized User’s account or access to the Services, and/or terminate this Agreement upon written notice at any time if Business Subscriber or any Authorized User breaches any term, condition or covenant of this Agreement, the Terms of Use, or any other agreement governing use of the Services. Company may, at its option, provide Business Subscriber an opportunity to cure an such breach and, if Business Subscriber fails to so cure such breach within ten (10) days after written notice thereof, we may terminate the Services and this Agreement as set forth in this paragraph. Sections 4 through 10 herein shall survive any expiration or termination of this Agreement.
13. This Agreement (including any amendments or revisions), together with any applicable Order Form, and the Nursegrid Terms of Use and Privacy Notice, constitutes the entire agreement between the parties and supersedes any previous understandings, commitments, or agreements, oral or written regarding the subject matter herein. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Company’s remedies as set forth in this Agreement and our Terms of Use are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which will be deemed as waived by virtue of our exercise of any other remedy. Company shall not be responsible for delay or failure in performance or any interruption of the Services resulting directly or indirectly from any cause or circumstance beyond our reasonable control including, without limitation, by any acts of civil or military authority, law, regulation, order or decree, by fire, riots, strikes, legal moratorium, war or revolution, by communication line or power failures, pandemic, public health emergency, or by “acts of god,” epidemic, earthquake, fire, flood or other natural disasters, nor will any such delay or failure be considered to be a breach of this Agreement or entitle either party to any credit or reimbursements. Notwithstanding contrary provisions in the Terms of Use, neither this Agreement nor the rights granted to Business Subscriber are assignable or transferable by Subscriber without Company’s prior written consent, but Company may assign or transfer its rights and/or duties under this Agreement without Business Subscriber’s permission. This Agreement may be modified only by a written instrument signed by an authorized representative of both Parties and referencing the specific section it amends. No provision of this Agreement is intended or will be construed to confer upon or give to any third person or entity other than Company and Business Subscriber any rights, remedies, or other benefits under or by reason of this Agreement.