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Terms of Service

(Effective as of January 1, 2018)

Welcome to 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 are connected with 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 deliverables and requirements, deadline for completion and the proposed payment amount, The Second Shift provides Business a self-selected list of Contractors who have qualifications that match the Business Project, giving them a chance to apply. When a Business selects a Contractor for its Business Project, the parties negotiate directly and agree to the scope of work, deadline for completion and payment amount (the “Project Payment”).

This Agreement includes and hereby incorporates by reference any agreements and policies referred to herein, including our Privacy Policy, located at https://www.thesecondshift.com/privacy. Such agreements and policies may be modified by The Second Shift from time to time in its sole discretion. In the event of a conflict between such policies and agreements and this Agreement, this Agreement controls.

Both Businesses and Contractors shall be deemed “Users” for the purposes of this Terms of Service (this “Agreement”). The following Terms of Service apply when you view or use the Service. Please review the following terms and accompanying Privacy Policy carefully. By submitting information, creating a The Second Shift profile (a “Profile”), accessing or using the Service or otherwise using the Site, you signify your agreement to these Terms of Service. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MAY NOT USE THE SITE OR ACCESS THE SERVICE.

1

USE OF THE SERVICE

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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) if you are a Contractor, 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 information, password and/or Profile. By using your Profile, you acknowledge and agree that The Second Shift’s account security procedures are commercially reasonable.

2

USE AND CONDUCT RESTRICTIONS

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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.

3

USER CONTENT

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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 based on any violation of this section.

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.

4

NON-SOLICITATION AND NON-CIRCUMVENTION

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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 thirty-six (36) months from the first time you identify or are identified by any User or third party through the Site in connection with a Business Project, 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 User or third party or arising out of your relationship with that party. This restriction does not in any way limit Contractor’s ability to provide independent contractor services to any other businesses or entities that are not Second Shift Users.

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:

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 or retained (as a full-time employee (as defined below) 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 hiring or retention, and Business shall pay a fee to The Second Shift, in an amount equal to 15% of Contractor’s annual salary or compensation. 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.

5

PAYMENT

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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. Prior to posting a Business Project, 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 of the Business Project, the Business will transfer to The Second Shift, payment equal to the Project Payment plus a 15% service fee. Once The Second Shift receives funds from the Business, 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 completed, 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 to The Second Shift 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 service fee greater than 15%.

In certain cases, the Business may opt to pay the Contractor directly. Under these circumstances, the Second Shift will invoice the Business for the 15% service fee, based upon the total value of the Project, based upon the agreed Scope of Work. If the Project is ultimately greater in value than stated in the Scope of Work, The Second Shift is entitled to a 15% service fee based upon the amount of overage.

Funds are disbursed to Contractors according to the following guidelines:

(i) For Business Projects that are completed 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 receipt of funds from the Business (but in no event more than 14 days after receipt of the funds).

(ii) For Business Projects that are ongoing in nature, The Second Shift will invoice the Business based upon the agreed upon payment timing in the Scope of Work.

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 with the Business 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 any unpaid amounts owed by Business 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 a Contractor’s work has been completed, Business is not entitled to recover any payments already distributed to Contractor.

In the event that a Business makes an offer of Full-Time Employment (defined as 35 hours or more per week) to a Contractor it is currently working with as part of a Project, and the Contractor accepts, The Second Shift will charge the Business a fee calculated as 15% of Contractor’s annual starting salary. If such an offer of Full-Time Employment is made and accepted, the Business will inform The Second Shift within 15 days of acceptance of the offer by the Contractor.

In addition to the connecting of Contractors and Businesses, The Second Shift charges fees for the sourcing of full-time employees. The fee for full-time placement is 20% of one year’s annual salary and is due upon the first day of employment for the full-time employee sourced by The Second Shift.

You hereby authorize The Second Shift to charge your credit card (or any other form of payment authorized by The Second Shift or mutually agreed to between you and The Second Shift) for the payments described herein. The Second Shift does not store your credit card information. Instead, it uses Stripe.com, a secure and reputable payment processor, to process payments.

The Second Shift is not an employment service and does not serve as an employer of any Contractor. The Second Shift is not responsible for any tax returns or 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.

6

BUSINESS PROJECTS

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You understand and agree that The Second Shift is not a party to any Business Project. 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.

Contractors understand and agree that they are not employees of The Second Shift, and that this Agreement does not create an employment relationship. The Second Shift does not, in any way, supervise, direct, or control the work that Contractors perform for Businesses, or the manner in which they perform the work. It is the intent of the Service that Contractors and Businesses will communicate directly regarding the Business Projects and the performance of work related to those Business Projects. Contractors and Businesses also directly negotiate and agree upon the Project Payment. The Second Shift does not provide Contractor with any training or equipment needed for any Business Project. The Second Shift understands that the Contractors have specialized skills, knowledge, and experience, and are essentially running their own consulting or freelance businesses. The Second Shift recognizes that Contractors may also be providing their independent contractor services through other arrangements or agreements outside of The Second Shift. There is no expectation or requirement that Contractors only provide their services to businesses or other entities through The Second Shift. It is the intent of the Service that Contractors will control their own work hours and work location, and that Businesses will not provide Contractors with any training or equipment needed for any Business Project.

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.

7

OPERATION

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The Second Shift reserves complete and sole discretion with respect to the operation of the Site and may, among other things: (a) review uploaded files and messages, and authorize restrictions on access thereto; (b) pursuant to the Privacy Policy, make information relating to the Site and/or Users available to third parties; and (c) withdraw, suspend or discontinue any functionality or feature of the Site. The Second Shift may also, in its complete and sole discretion, with or without prior notice, remove any posted Business Project from the Site provided that no Contractor has accepted the Business Project.

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.

8

ONLINE CONTENT DISCLAIMER

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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 info@thesecondshift.com.

9

NOTICE AND CONSENT TO ELECTRONIC COMMUNICATIONS

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You may deliver notice to The Second Shift at any time via email at info@thesecondshift.com.

You consent to receive communications from The Second Shift in an electronic form via the email address on record in your Profile, by text or SMS via the phone number provided 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 info@thesecondshift.com. Opting out may prevent you from receiving messages regarding The Second Shift or special offers.

10

PRIVACY POLICY

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The Second Shift respects the privacy of its Users. Please refer to the Privacy Policy, located at: https://www.thesecondshift.com/privacy which explains how we collect, use, and disclose information that pertains to your privacy. By creating a Profile and agreeing to these Terms of Service, you are also accepting and agreeing to the terms of the Privacy Policy.

11

WARRANTY DISCLAIMER

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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.

12

LIMITATION OF LIABILITY; RELEASE

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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 PAYMENTS ACTUALLY PAID BY YOU (AS A BUSINESS) OR RECEIVED BY YOU (AS A CONTRACTOR)..

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 you may have under California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”, 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.

13

INDEMNIFICATION

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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.

14

MODIFICATION OF TERMS OF USE

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The Second Shift can amend and modify these Terms of Service at any time. (However, The Second Shift cannot unilaterally modify the agreed dispute-resolution provisions in Section 16 for then-pending disputes unless both parties expressly agree otherwise.) Any such modification or amendment will become effective upon being posted on the Site and/or upon notice to you directly via email at the email address in your Profile. For this reason, you should keep your contact and Profile information current. It is your responsibility to check the Site periodically to view any such changes in the Terms of Service or Privacy Policy. Your continued use of the Site following the posting of any amendment or modification signifies acceptance of our revisions. Any changes to these Terms of Service (other than as set forth in this Section) or waiver of The Second Shift’s rights hereunder shall not be valid or effective except in a written agreement bearing the signature of an officer of The Second Shift.

15

TERM AND TERMINATION

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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.

16

AGREEMENT TO ARBITRATE DISPUTES

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You and we agree that any legal disputes or claims arising out of or related to this Agreement (including but not limited to the use of The Second Shift and/or the Services, or the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in New York, New York. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules (a copy of which can be obtained here: https://www.adr.org/aaa/faces/aoe/commercial), or as otherwise mutually agreed by you and we. You should review the Arbitration Rules before entering into this Agreement. The Second Shift will pay all arbitrator fees and forum expenses for the arbitration process. Each party shall pay its own litigation costs and attorney’s fees to the same extent it would in a court of law, unless the arbitrator, applying the same rules as a court in such situations and in accordance with applicable law, rules otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be brought within the time required by applicable law.

You and we agree that any claim, action or proceeding arising out of or related to this Agreement must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative, collective, or class proceeding. You acknowledge and agree that you and The Second Shift are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.

17

GENERAL TERMS

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These Terms of Service together with the Privacy Policy represent the complete and exclusive agreement between User and The Second Shift and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement.

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 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.

The Second Shift may assign or delegate these Terms of Service and/or Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms of Service or Privacy Policy without The Second Shift’s prior written consent, and any unauthorized assignment and delegation by you is void.

YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF SERVICE, AND WILL BE BOUND BY THESE TERMS AND CONDITIONS.

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