(Effective as of October 15, 2015)
Welcome to www.TheSecondShift.com (the “Site”), provided to you by The Second Shift LLC (“The Second Shift”, “we” or “us”). This website is an online platform through which business entities (hereinafter referred to as “Businesses”) requesting projects to be completed hire persons (hereinafter referred to as “Contractors”) to complete such projects (hereinafter referred to as “Business Projects”). The Second Shift provides services to you in your capacity as either a Business or a Contractor. Our services include connecting Businesses and Contractors, facilitating Business Projects and managing any disputes related to those Business Projects (together, the “Service”). After a Business posts a Business Project on the Site, including the scope of work, deadline for completion and payment amount, The Second Shift provides Business a personally curated list of Contractors who are qualified to work on the Business Project, giving them a chance to apply. When Business selects a Contractor for its Business Project, the parties agree to the scope of work, deadline for completion and payment amount. Before Contractor begins to work on the Business Project, The Second Shift collects and holds in escrow the payment amount (the “Project Payment”) to be released and disbursed to the Contractor as or after the Business Project is completed.
In order to use the Site, you are required to create a Profile. In consideration for your Profile, you agree that: (a) you are at least 18 years of age and have the power and authority to enter into this Agreement; (b) all information provided by you to The Second Shift is true, accurate, current and complete; (c) you will maintain and promptly update your Profile to keep it true, accurate, current and complete; (d) you are not an employee of any staffing agencies, headhunters or similar organizations, and you shall not perform any services commonly associated with staffing agencies, headhunters or similar organizations, directly or indirectly, on or through the Site; and (e) you will comply fully with the terms and conditions of this Agreement.
You further agree to: (a) ensure and maintain the security of your password and Profile; (b) be solely responsible for the security, confidentiality and integrity of all messages and information you disseminate, transmit or store on the Site; and (c) notify us immediately of any unauthorized use of your password and/or Profile. The Second Shift will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your [User identification,] password and/or Profile. By using your Profile, you acknowledge and agree that The Second Shift’s account security procedures are commercially reasonable.
Your permission to use the Service is conditioned upon the following restrictions. You agree that you will not under any circumstances use the Service to:
(i) post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
(ii) promote any illegal activity or enterprise, or to provide instructional information about illegal activities or enterprises;
(iii) attempt to, or harass, abuse or harm another person or group;
(iv) use another User’s Profile without permission;
(v) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
(vi) harvest or collect email addresses or other contact information of other Users from the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
(vii) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
(viii) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Site;
(ix) interfere or attempt to interfere with the proper functioning of the Service, including, but not limited to taking any action to interfere with or disrupt our servers or network infrastructure, or publishing or linking to malicious content intended to damage or disrupt another User’s browser or computer.
You are solely responsible for all code, video, images, information, ideas, data, text, software, music, sound, photographs, graphics, messages or other materials (“User Content”) that you upload, post, link to, publish, display, email or otherwise use or make available (hereinafter, “upload”) via the Site. User Content is not edited, screened, or otherwise controlled by The Second Shift. You agree that The Second Shift acts only as a passive conduit for your online distribution and publication of User Content. Notwithstanding the foregoing, The Second Shift reserves the right to monitor and remove any User Content from the Service which the Second Shift determines violates these Terms of Service and to remove your Profile and terminate your account with or without prior notice.
By transmitting, submitting and uploading any User Content while using the Service, you agree as follows:
(i) You are solely responsible for your Profile and the activity that occurs while signed in to or while using your Profile;
(ii) You will not upload content that:
1) is malicious, fraudulent, deceptive, misleading, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, hateful racially or ethnically, or otherwise objectionable;
2) infringes any intellectual property or other proprietary rights of any party, including, but not limited to, privacy, publicity and trade secret, unless you are the owner of such rights or have the appropriate permission from their rightful owner to submit such content;
3) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
4) poses or creates a privacy or security risk to any person;
5) you do not have a right to upload under any law, or under any contractual or fiduciary relationship;
6) you have a duty to keep confidential (whether by agreement, law, rule, regulation, fiduciary duty, or other similar obligation or restriction), or that constitutes material, non-public information about any third party, including information the disclosure of which would be in violation of the securities laws and/or information that is proprietary to a third party (including past or present employers or companies for which you have consulted) and not owned solely by you;
7) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, junk mail, “spam,” chain letters, pyramid schemes, contests, sweepstakes, or any other form of solicitation; or
8) restricts or inhibits any other person from using or enjoying Service, or which may expose The Second Shift or its Users to any harm or liability of any type.
(iii) You shall have no recourse against The Second Shift for any alleged or actual infringement or misappropriation of any proprietary right in your User Content by us or any third party; and
(iv) The Second Shift is under no duty of confidentiality, express or implied, with respect to your User Content.
You understand and agree that any liability, loss or damage that occurs as a result of any User Content that you make available or access through the Service is solely your responsibility. The Second Shift is not responsible for any public display or misuse of your User Content. The Second Shift does not, and cannot, pre-screen or monitor all User Content. However, at our discretion, The Second Shift, or technology we employ, may monitor and/or record your interactions with the Service.
You acknowledge and agree that The Second Shift may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of The Second Shift, its Users and the public. You understand that the technical processing and transmission of the Site, including your User Content, may involve transmission over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
You agree not to use the Site or the Services for the purposes of circumventing or attempting to circumvent The Second Shift’s messaging tools or services, including for the purpose of avoiding the obligation to pay any of The Second Shift’s fees related to its provision of the Service.
You acknowledge and agree that a substantial portion of the compensation The Second Shift receives for making the Service available to you is collected as a deduction from the Contractor’s Project Payment and as a fee added to the Business’ Project Payment. Therefore, for twenty-four (24) months from the time you identify or are identified by any User or third party through the Site, you must use the Site as your exclusive method to request and perform work and to make and receive all payments for work, directly or indirectly, with that party or arising out of your relationship with that party.
You agree not to circumvent the payment methods offered by the Site and you will notify The Second Shift immediately if another party improperly contacts you or suggests making or receiving payments outside of the Site. You agree that you will not under any circumstances:
(i) Submit proposals to, solicit, contract, hire, manage or pay any parties identified through the Service other than through the Site;
(ii) Accept proposals from, contact, deliver services to, invoice or receive payments from parties identified through the Service other than through the Site; or
(iii) Invoice or report on the Site an invoice or payment amount lower than the Project Payment actually agreed between Business and Contractor through the Site.
Notwithstanding the foregoing, if a Business breaches its obligations under this Section, and such breach results, directly or indirectly, in a Contractor being hired (as an employee or independent contractor) by Business or any of its related entities (including but not limited to subsidiaries, parents, affiliates or entities otherwise related through common ownership or control), the parties must notify The Second Shift immediately upon Contractor’s acceptance of any employment offer, and Business shall pay a fee to The Second Shift, in an amount equal to 15% of Contractor’s annual salary. The parties acknowledge that the harm caused to The Second Shift by such breach would be impossible or very difficult to accurately estimate and that the fee is a reasonable estimate of the anticipated or actual harm that might arise from the breach.
The Second Shift charges service fees for the services of connecting Businesses and Contractors, facilitating Business Projects and collecting Project Payments. These fees are non-refundable. When a Business and Contractor agree to the terms of a Business Project, but before Contractor commences any work, Business shall provide valid credit card information to The Second Shift. Based upon the agreed upon payment terms, once Contractor completes the Project, or in accordance with the timing agreed upon in the terms on the Business Project, the Business will transfer to The Second Shift, payment equal to the Project Payment plus a 15% service fee. The Second Shift holds these funds until Acceptance (when a Business “Accepts” the work submitted by a Contractor through the acceptance mechanisms provided on the Site), at which time The Second Shift disburses to the Contractor payment equal to the Project Payment minus a 5% service fee. For example, for a Business Project with a Project Payment of $1,000, the Business will transfer to The Second Shift $1,150 ($1,000 Project Payment + $150 service fee). Once the Business Project is Accepted, The Second Shift will transfer to Contractor $950 ($1,000 Project Payment - $50 service fee). If the Business does not transfer the Project Payment plus the service fee at the agreed upon time based on the payment terms, The Second Shift will charge the credit card provided for the amount due in full. Certain payment terms may result in a fee greater than 15%.
Funds are disbursed to Contractors according to the following guidelines:
(i) For Business Projects that are completed and Accepted within one month from the date of commencement of work, The Second Shift will disburse the full and total payment to Contractors in one lump sum as soon as reasonably possible upon Acceptance of the Business Project (but in no event more than 14 days after Acceptance).
(ii) For Business Projects that are completed and Accepted more than one month from the date of commencement of work, the Second Shift will disburse payment to Contractors on a monthly basis, starting on the date one month after the date of commencement and continuing on the same date each month until the Business Project is Accepted.
If a Business fails to pay amounts due under this Agreement, whether by cancelling a credit card payment, initiating an improper chargeback or by any other means, the Business’ Profile with The Second Shift will be removed and any Contractor’s work-in-progress will be stopped. Without limiting other available remedies, Business must reimburse The Second Shift for any amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and on-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, The Second Shift may setoff amounts due against other amounts received from or held for Business, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. If a Business terminates a Business Project before Acceptance, or before a Contractor’s work has been completed, Business is not entitled to recover any payments already distributed to Contractor.
You hereby authorize The Second Shift to run, or have run, credit card authorizations on all credit cards provided to The Second Shift, to store credit card details as your method of payment for Services, and to charge your credit card (or any other form of payment authorized by The Second Shift or mutually agreed to between your and The Second Shift).
The Second Shift is not an employment service and does not serve as an employer of any User. The Second Shift is not responsible for any tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, including, but not limited to, unemployment insurance, social security or payroll withholding tax or income reporting, in connection with any Business Project, Project Payment or any services provided or received by Users.
You understand and agree that The Second Shift is not a party to any Business Project, that you are not an employee of The Second Shift and that The Second Shift does not, in any way, supervise, direct, or control your work. The Second Shift will not have any liability or obligations under or related to Business Projects. The Second Shift has no control over Contractors or Businesses, and makes no representations as to the integrity, reliability, capability, or qualifications of any Business or Contractor or the quality, security or legality of any Contractor’s work on any Business Project, and disclaims any and all liability relating thereto.
The Second Shift does not direct, has no control over Business Projects, and makes no representations as to the quality, safety or legality of any Business Project, the truth or accuracy of Profiles, the qualifications, background, or identities of Users, the ability of Contractors to perform Business Projects, the ability of Businesses to pay Contractors, or that a Business or Contractor can or will actually complete a transaction.
It is the intent of the Service that Contractors will be properly classified as independent contractors of Business, and Business agrees: (a) that Business does not in any way supervise, direct, or control Contractor’s work; (b) that Business does not, in any way, supervise, direct, or control Contractor’s work hours and location of work; and (c) Business does not provide Contractor with training or equipment needed for any Business Project. Notwithstanding the foregoing, Business assumes all liability for proper classification of Contractor as an independent contractor based on applicable legal guidelines.
This Agreement does not create a partnership or agency relationship between Business and Contractor, and Contractor does not have authority to enter into written or oral, whether implied or express, contracts on behalf of a Business.
The Second Shift does not and is not required to verify any information given to us by Users, nor does The Second Shift perform background checks on Users. The Second Shift may provide information about a User, such as a rating or third party feedback, but such information is based solely on data that Users or third parties submit. The Second Shift provides such information solely for the convenience of its Users and is not an endorsement or recommendation by The Second Shift.
You acknowledge and accept that from time to time the Site may be inaccessible or inoperable for periodic maintenance or repairs, or for other reasons, including causes beyond our control or which are not reasonably foreseeable.
Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by The Second Shift, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Second Shift does not guarantee the accuracy, completeness, or usefulness of any information made available through the Service and neither does The Second Shift adopt nor endorse, nor is The Second Shift responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than The Second Shift. The Second Shift takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. Under no circumstances will The Second Shift be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to Users.
Although The Second Shift strives to enforce these Terms of Service, you may be exposed to User Content that is inaccurate or objectionable. The Second Shift reserves the right, but has no obligation, to monitor the materials posted in the public areas of the Site or to limit or deny a User’s access to the Service or take other appropriate action if a User violates these Terms of Service or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful or malicious. Communications sent between you and other Users that are not readily accessible to the general public will be treated by The Second Shift as private to the extent required by applicable law. The Second Shift shall have the right to remove any such material that in its sole opinion violates, or is alleged to violate, the law or this Agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of Users or others. Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of our Service, please contact us at email@example.com.
You may deliver notice to The Second Shift at any time via email at firstname.lastname@example.org.
You consent to receive communications from The Second Shift in an electronic form via the email address on record in your Profile or by written communication delivered by first class US mail to your address on record in to your Profile. You further agree that any agreements, notices, disclosures, and other communications that The Second Shift provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
We may also use your email address to send you other messages, including information about The Second Shift and special offers. You may opt out of such email by changing your account settings or sending an email to email@example.com. Opting out may prevent you from receiving messages regarding The Second Shift or special offers.
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE SECOND SHIFT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON- INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE SECOND SHIFT MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SITE. THE SECOND SHIFT CANNOT AND DOES NOT WARRANT AGAINST ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SECOND SHIFT, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY ASPECT OF YOUR USE OF THE SITE OR THE SERVICE, INCLUDING, WITHOUT LIMITATION: (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE SECOND SHIFT OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SECOND SHIFT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE SECOND SHIFT, IF ANY, SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU.
If you have a dispute with one or more Users, you release us, and our officers, directors, agents, affiliates, subsidiaries, joint ventures and employees, from claims, demands and damages, actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, now and in the future, arising out of or in any way connected with your use of the Service, the Site or any content or other information provided through the Service or the Site. You also agree (a) to waive any and all rights and benefits otherwise conferred by any law, whether statutory or non-statutory, of any jurisdiction that would purport to limit the scope of a release or waiver; and (b) to waive and relinquish all rights and benefits under California Civil Code §1542, or any similar provision of any law, rule or regulation of any other jurisdiction, to the full extent that you may lawfully waive all such rights and benefits.
You agree to indemnify, defend and hold harmless the Second Shift, its officers, directors, employees, agents, affiliates, subsidiaries, representatives, information providers and suppliers from and against all claims, actions, losses, demands, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, made by any third party arising from or relating to your use of the Site, the Service, any Business Project [or Business Project Contract], any User Content, or your violation of the terms of these Terms of Service.
The term of this Agreement commences on the date of acceptance of this Agreement and continues in effect until terminated in accordance with the terms of this Section. You may terminate your account at any time. The Second Shift may terminate or suspend your account, your Profile and/or your right to use the Site at any time, with or without cause, and without prior notice. Termination will not relieve your requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, will be charged to your credit card or other form of payment pursuant to Section 5.
No modification or amendment to this Agreement will be binding unless executed in writing signed by a duly authorized representative of the parties.
These Terms of Service and your use of the Site are governed by the federal laws of the United States of America and the laws of the State of Delaware, without regard to conflict of law provisions.
Any legal action or proceeding between The Second Shift and you for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in New York County or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of New York. You hereby irrevocably consent to the personal jurisdiction and venue of these courts. Any cause of action or claim related to or arising out of their relationship with The Second Shift must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is permanently barred.
Any failure on the part of The Second Shift to enforce any provision of this Agreement will not be considered a waiver of its right to enforce such provision.
The rights of The Second Shift under this Agreement will survive any termination of this Agreement.
If any action in law or equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, including costs and expenses, and to any other relief to which such prevailing party may be entitled.
The provisions of this Agreement are severable, and in the event that any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF SERVICE, AND WILL BE BOUND BY THESE TERMS AND CONDITIONS.