Master Services Agreement

This Agreement is between you (“Subscriber”) and HcT2 Co., dba NurseGrid, a Delaware corporation (“NurseGrid” or “Company” or “we” or “us”), and describes Subscriber’s rights and obligations with respect to access and use of the Product and Service (as defined below) owned and provided by NurseGrid. By using the Products or Services, or by clicking to accept or agree to this Master Service Agreement “MSA” when this option is made available to you, you accept and agree to be bound and abide by this MSA and the Terms of Service and our Privacy Policy and incorporated in this Agreement by reference. If you do not want to agree to this MSA, the Terms of Service or the Privacy Policy, you must not access or use the Products or Services.

  1. Definitions: In this Agreement,
    1. Agreement” means this Master Services Agreement “MSA” and the Subscription Services Order Form “Order Form.”
      • In the event of a conflict or inconsistency between the MSA and the Subscription Services Order Form “Order Form,” the Order Form shall prevail concerning the subject matter therein
    2. Authorized User” means Subscriber or the employees and contractors of Subscriber who are authorized by Subscriber to use the Product and Service.
    3. Product” means NurseGrid Manager.
    4. “Purchase Date” means the date Subscriber’s user account is activated.
    5. Service” means collection and distribution of Staff data, including but not limited to Availability, Notification, Messaging, and Interaction tools made available to Subscriber pursuant to this Agreement and any additional product or service identified on the Subscription Services Order Form ‘Order Form” Fee Schedule and provided to Subscriber pursuant to this Agreement.
    6. Staff” means a person who subscribes to and provides information to the NurseGrid personal scheduling and communication tool, and who is associated with the department using the Product under this Agreement.
    7. Subscription Fee” means the applicable fees, as set forth on the Fee Schedule, for access by Subscriber to the Product and Service.
    8. NurseGrid Information” means all materials, data, and other information collected, summarized, produced, licensed, owned and delivered to Subscriber by NurseGrid as part of the Product and Service.
  2. License to Use Product and Service:
    • NurseGrid grants to Subscriber a non-exclusive, non-transferable, non-sub-licensable, limited license for the Authorized Users to access and use the Product and Service during the Term (as defined below).
    • Subscriber acknowledges that from time to time, the Product and Service may be inaccessible or inoperable for any reason, including, without limitation:
      1. equipment malfunctions;
      2. periodic maintenance procedures; or
      3. causes beyond the control of NurseGrid or which are not reasonably foreseeable by NurseGrid including, but not limited to, the interruption of telecommunication or digital transmission links.
  3. Fees & Payment:
    • Subscriber shall pay NurseGrid the fees set forth in the Order Form
      1. Fee Increases:
        • NurseGrid may increase Fees no more than once per Term (as defined below) after the first contract Term by providing a written notice to Customer at least 30 calendar days prior to the commencement of the subsequent Term, and the Order Form will be deemed amended accordingly.
      2. Payment:
        • For the initial Term, Subscriber shall pay all Fees due pursuant to the Order Form on or before the Effective Date.
        • Subscriber will be automatically invoiced for subsequent Terms, which invoices are due and payable within ten (10) days after the date of the invoice therefor.
        • Subscriber shall make all payments hereunder in US dollars by credit card on the NurseGrid online payment portal at manager.nursegrid.com, or to such other address or by such other method as NurseGrid may specify in writing from time to time or on the Order Form or Invoice
      3. Late Payment:
        • If Subscriber fails to make any payment when due then, in addition to all other remedies that may be available:
          • NurseGrid 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;
          • Subscriber shall reimburse NurseGrid for all costs incurred by NurseGrid in collecting any late payments or interest, including reasonable attorneys’ fees, court costs and collection agency fees; and
          • If such failure continues for ten (10) days following written notice thereof, NurseGrid may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Subscriber or any other person by reason of such suspension.
  4. Obligations of Subscriber:
    • In addition to Subscriber’s other obligations and responsibilities set forth in this Agreement, Subscriber agrees:
      1. to limit access to the Product and Service to its Authorized Users, and to notify NurseGrid immediately if  Subscriber becomes aware of any unauthorized use of or access to the Product and Service;
      2. that it is responsible for all acts and omissions of Authorized Users (including contractors) in connection with their use of the Product and Service;
      3. that it is solely responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access or use the Service, and all related charges;
      4. that the Product is not to be used for creating, receiving, maintaining, or transmitting any information that would be considered Protected Health Information under Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 45 CFR 160.103; and
      5. that it will not
        • rent, lease, distribute, sell, sublicense, or transfer to any third party all or any part of its right to access and use the Products or Service;
        • reverse engineer, disassemble or decompile the Products or Service or any applications associated with the Product or Service;
        • modify the Product or Service;
        • access or use the Product or Service for unlawful purposes; or
        • permit anyone else to do any of the preceding.
  5. Intellectual Property and Use Restrictions:
    • Subscriber acknowledges that, solely as between Subscriber and NurseGrid, all title, ownership and intellectual property rights to the Product, the Service, and the NurseGrid Information are and will remain the sole and exclusive property of NurseGrid.
    • Except for the limited license expressly granted in this Agreement, this Agreement does not grant Subscriber rights to any intellectual property rights in the Product or Service or NurseGrid Information.
    • Any suggested modifications or improvements to the Product or Service submitted to NurseGrid by Subscriber become NurseGrid’s exclusive property to exploit or to not exploit as NurseGrid solely deems appropriate, without compensation or attribution to Subscriber.
  6. Support and Maintenance:
    • NurseGrid has no obligation to provide updates, upgrades, bug fixes or modifications to the Product or Service.
    • NurseGrid has no obligation to maintain or support the Product or Service for the unique benefit of Subscriber.
    • If Subscriber wants NurseGrid to provide maintenance and/or support services, or to provide upgrades to the Service, NurseGrid may choose to do so in its sole discretion, and then only for a fee pursuant to a separate license or services agreement between the parties.
  7. Disclaimer of Warranty and Limitations of Liability:
    1. NURSEGRID GIVES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND RELATING TO THE PRODUCT OR SERVICE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, OWNERSHIP, RESULTS, OR THE QUALITY, SUITABILITY, ADEQUACY, GENUINENESS, ACCURACY, OR COMPLETENESS OF THE PRODUCT OR SERVICE.
    2. NURSEGRID DOES NOT WARRANT THAT THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
      • NURSEGRID IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY SUBSCRIBER’S HARDWARE OR SOFTWARE, OR FOR PROBLEMS IN THE INTERACTION OF THE SERVICE WITH ANY OTHER SOFTWARE.
      • SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR TAKING ALL PRECAUTIONS, SUCH AS DATA BACKUP, TESTING, AND ERROR DETECTION PROCEDURES, WHICH ARE NECESSARY IN ORDER TO ENSURE THAT ERRORS IN THE SERVICE AND THE APPLICATIONS USING THE SERVICE DO NOT CAUSE ADVERSE CONSEQUENCES.
    3. NURSEGRID WILL NOT BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT, ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HERE.
    4. NURSEGRID SPECIFICALLY DISCLAIMS LIABILITY FOR INACCURATE, OUT-OF-DATE, OR MISSING STAFF AVAILABILITY, CREDENTIAL, OR OTHER PERSONAL OR PROFESSIONAL INFORMATION.
    5. IN NO EVENT WILL NURSEGRID’S TOTAL LIABILITY UNDER OR RELATED TO THIS AGREEMENT, THE TERMINATION THEREOF, AND/OR THE PROVISION OF THE PRODUCT OR SERVICE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY SUBSCRIBER UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE CLAIM, OR $5,000 (FIVE THOUSAND DOLLARS) WHICHEVER IS LOWER.
      • EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION.
      • FURTHER, IF ANY REMEDY IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES WILL REMAIN IN EFFECT.
  8. Intellectual Property and Limited Remedy:
    • NurseGrid hereby represents and warrants that to NurseGrid ‘s knowledge none of the Products or Services provided or licensed under this Agreement does or will infringe, misappropriate, dilute or otherwise violate Intellectual Property Rights or other rights of any third party arising under the Law of the United States.
    • If a Product or Service is found to be infringing and use of a Product or Service is prohibited by court order, NurseGrid shall at its option do one of the following:
      • obtain a valid license to the infringed-upon component for Customer;
      • replace the Product or Service with a non-infringing version of equivalent specifications;
      • modify the Product or Service so it is non-infringing, but of commercially reasonable equivalent specifications; or
      • refund the fees paid by Customer for such Product or Service on a pro-rated basis.
        • NurseGrid’s obligations under this Section are NurseGrid ‘s sole liability to Customer for any alleged or proven infringement.
  9. Indemnification:
    • Subscriber shall indemnify, defend and hold harmless NurseGrid, and its directors, officers, employees and agents, from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys’ fees) and costs arising from Subscriber’s use of the Products or Service, except to the extent caused by NurseGrid’s gross negligence or willful misconduct, or by NurseGrid’s breach of its representations and warranties in Section 8 above.
  10. Confidentiality:
    • Subscriber acknowledges and agrees that the NurseGrid Information constitutes the confidential and proprietary information of NurseGrid.
    • Subscriber shall not disclose the NurseGrid Information to any party, or use the NurseGrid information in any manner or for any purpose, except in accordance with the terms and conditions of this Agreement.
  11. Term and Termination:
    • This Agreement is effective on the Effective Date and will continue for the period applicable to the subscription chosen by Subscriber (the “Term”) as defined on the Order Form unless earlier terminated in accordance with the terms of this Agreement.
    • This Agreement will automatically renew for the selected Term in the Order Form unless either party provides notice of non-renewal at least 30 days prior to the end of the Term.
    • The Subscriber may contact NurseGrid Customer Service to provide notice of non-renewal at
    • NurseGrid may, without liability, suspend performance (including by deactivating Subscriber’s user account(s)) and/or terminate this Agreement immediately upon written notice at any time if Subscriber is in breach of any term, condition or covenant of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach.
  12. Miscellaneous:
    1. This Agreement (including any amendments or revisions), together with any applicable Order Form, and the NurseGrid Terms of Service and Privacy Policy, constitutes the entire agreement between the parties and supersedes any previous understandings, commitments, or agreements, oral or written regarding the subject matter of this Agreement.
    2. This Agreement is effective only between parties located in the United States.
    3. This Agreement may be modified only by a written instrument signed by an authorized representative of both Parties, which makes reference to the specific section it amends.
    4. NurseGrid’s Terms of Service and Privacy Policy will govern how NurseGrid handles Subscriber’s personal information under this Agreement, and are incorporated herein by reference.
    5. 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.
    6. This Agreement is governed by Oregon law without reference to its choice of law provisions.
      • If Subscriber initiates any legal action against NurseGrid under this Agreement or related in any way to the Product or Service, whether, in contract, tort or otherwise, Subscriber agrees to initiate that action only in a state or federal court located in Portland, Oregon.
    7. The party who is not the substantially prevailing party with respect to any dispute, claim or controversy related to or arising under this Agreement will pay the reasonable costs, including attorneys’ fees, actually incurred by the substantially prevailing party in relation to the dispute, claim or controversy, and any appeal, and any enforcement of an award.
    8. Neither this Agreement nor the rights granted to Subscriber are assignable or transferable by Subscriber without the prior written consent of NurseGrid.
      • NurseGrid may assign or transfer its rights and/or duties under this Agreement without Subscriber’s permission.
    9. NurseGrid’s remedies 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 NurseGrid’s exercise of any other remedy.
      NurseGrid is not responsible for delay or failure in performance or any interruption of the Service resulting directly or indirectly from any cause or circumstance beyond its 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, 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.
    10. Sections 3, 4, 6 and 7 of this Agreement will survive any expiration or termination of the Agreement.
    11. No provision of this Agreement is intended or will be construed to confer upon or give to any third person or entity other than NurseGrid and Subscriber any rights, remedies or other benefits under or by reason of this Agreement.

The Service may not be exported or re-exported from the United States of America except in accordance with the laws, regulations, orders or other restrictions on the export of software from the United States of America. Subscriber will indemnify and hold NurseGrid harmless for any breach of this Section. This Agreement is incorporated into the Order Form, accepted by Customer by continued use of the service.