EFFECTIVE DATE: February 6, 2023
IMPORTANT – PLEASE READ THE TERMS OF THIS THIRDWORK PLATFORM AGREEMENT (the “Agreement”) CAREFULLY. This Agreement is a binding, contractual agreement between you, the freelancer (“Freelancer”) or client (“Client”) searching for freelance contractor assistance, and Thirdwork, Inc. (“Thirdwork”). This Agreement applies to Freelancers or Clients (as the case may be) access to and use of the Thirdwork Freelancer Platform Services. By clicking “I Accept” button, or by accessing or using the services governed by this Agreement, you are indicating acceptance and agreeing to all of the terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the terms and conditions of this Agreement, in which case the terms “Freelancer” or “Client” (as the case may be) refers to you and such entity and its affiliates. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” OR “CANCEL” BUTTON AND DO NOT ACCESS THE SERVICES.
1. Services Description: Thirdwork will provide you access to the Thirdwork Freelancer Platform for the purpose of providing a matching platform so that freelancers may meet hiring clients on the Platform. The term “User” used herein means the the Client or the Freelancer (as applicable) that has agreed to the terms of this Agreement.
2. Term: The term of this agreement is effective as of the date you select “Accept” through the click through process (“Effective Date”) and shall continue for three (3) years, or as otherwise terminated or extended pursuant to the Terms and Conditions.
Users that are Freelancers shall be paid the compensation for services provided to Clients as set forth in the Consulting Agreement by and between Client and Freelancer.
The THIRDWORK FREELANCER PLATFORM AGREEMENT (the “Agreement”) is comprised of these Terms and Conditions and the agreement to which these Terms and Conditions are attached, and any subsequent agreements the parties agree to which incorporate these Terms and Conditions. The Agreement is a binding contract between Thirdwork, Inc. located at 184 Kent Avenue, Brooklyn, NY 11249 (“Thirdwork”) and the user indicated on the agreement (“User”). The parties agree to the above and below.
1.1 Upon successful registration by User, and subject to the terms and conditions herein, Thirdwork shall provide access to Thirdwork’s Freelancer Platform (“Platform”) so that Users may introduce and seek working relationships between each other (the “Services”). Thirdwork shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement.
1.2 The purpose of the Platform is for Users that are freelancers looking for work to meet prospective clients looking to hire freelancers for a period to perform work on behalf of such client. The contractual relationship (if any) formed between Users (i.e., between Freelancers and Clients) is between such Users, and Thirdwork is not a party but is a third party beneficiary entitled to enforce obligations, receive and issue payments less fees, to any contract between Users.
1.3 Each User is solely responsible for determining the suitability of each contract between other Users (each, a “Contract”). Thirdwork provides the Contract forms for Freelancers and Clients to execute by and between such parties, and if requested by User(s), a mutual non-disclosure agreement to govern the exchange of confidential information between Freelancer and Client, both forms set forth in Exhibit A and B, attached hereto. Contracts are by and between Clients and Freelancers solely, and both parties acknowledge under this Agreement that Thirdwork is not a party to such Contracts. Furthermore, each User acting as a client seeking to hire freelancers are solely responsible for the compensation to be paid to freelance Users for any work or services provided thereby on behalf of such client User. Thirdwork makes no representations or warranties with respect to the quality of any services provided by a User, and in no way controls, supervises or directs any Users or the work performed under a Contract.
1.4 Users shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send to Platform or cause to be sent to Platform or store on any computer that is used to access the Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send to Platform or cause to be sent to Platform or store on any computer that is used to access the Service material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) conceal or remove any title, trademark, copyright, proprietary or restricted rights notice contained in the Service associated therewith.
1.5 User hereby grants, and shall execute any appropriate documentation evidencing said grant, to Thirdwork a royalty-free, worldwide, irrevocable, perpetual license to use, incorporate into Services and fully exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Users relating to the operation of the Service or Platform.
1.6 User shall defend, indemnify and hold Thirdwork harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any claim, demand, suit, or proceeding made or brought against Thirdwork by a third party or another User related to the Services, Platform, a Contract or any claims related to the relationship between Users and Thirdwork.
2. Fees and Expenses.
2.1 For the Services to be performed hereunder, client Users shall pay to Thirdwork the fees set forth in the Client platform agreement (the “Fee”) within thirty (14) days of the date of Thirdwork’s invoice. A refundable deposit to secure services of the freelancer may be requested before work begins. This refundable deposit will be credited to the first invoice. User shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by User hereunder; provided, that, in no event shall User pay or be responsible for any taxes imposed on, or regarding, Thirdwork’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Except for invoiced payments that the User has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. User shall also reimburse Thirdwork for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Thirdwork does not waive by the exercise of any rights hereunder), Thirdwork shall be entitled to suspend the provision of any Services if User fails to pay any undisputed amounts/fees when due hereunder.
2.2 Users are responsible at their expense for acquiring, installing and maintaining all connectivity equipment, hardware, and software as may be necessary to access the Platform.
2.3 Payment in Crypto. The Client may pay using US dollars via a bank transfer, credit card, paper check in the mail addressed to Thirdwork; or with the following cryptocurrencies through the Coinbase Commerce platform: Bitcoin, Bitcoin Cash, Dai, Dogecoin, Ethereum, Litecoin, or USDC. The amount invoiced in cryptocurrency will be equal to the US dollar value of the agreed upon rate using the exchange rate for the payment coin at the time of invoicing.
2.4 Refunds. In cases where the Client has paid using cryptocurrency, any refunds issued by Thirdwork will be issued as the pro-rated US dollar value of the full payment made, and processed at the exchange rate for the payment coin at the time the refund is completed.
3. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to User under this Agreement or prepared by or on behalf of Thirdwork in the course of performing the Services (collectively, the “Deliverables”) except for any Confidential Information of User or customer-provided materials shall be owned exclusively by Thirdwork. Thirdwork hereby grants User a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a limited, non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable User to make reasonable use of the Deliverables and the Services. During the term of this Agreement, Users grant to Thirdwork a non-sublicensable, non-exclusive license to display Users’ logos and brand marks within the Platform and in sales literature and copy.
4. Confidentiality. From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 4; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 4 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
5. Term. This Agreement shall commence as of the Effective Date and shall continue for the duration set forth on the first page of this Agreement unless terminated earlier pursuant to the terms and conditions below (the “Term”).
6.1 For Cause. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this section, Thirdwork may terminate this Agreement before the expiration date of the Term on written notice if User fails to pay any amount when due hereunder or if User violates any governing term or condition related to the Services.
6.2 For Convenience. Either party may terminate this Agreement after providing ninety (90) days’ prior written notice if there are no active Contracts during such notice period.
7. Independent Contractor. The details of the method and manner for performance of the Services by Thirdwork shall be under its own control, User being interested only in the results thereof. Thirdwork shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give User the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Thirdwork is for all purposes hereunder an independent contractor and in no event will Thirdwork be considered an agent or employee of User or any of its subsidiaries or affiliates for any purpose.
8. No Warranty. Thirdwork offers no warranties and Services are offered “as-is”, with all faults and Thirdwork DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. IN NO EVENT SHALL THIRDWORK BE LIABLE TO USER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THIRDWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THIRDWORK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THIRDWORK PURSUANT TO THIS AGREEMENT IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Force Majeure. Thirdwork shall not be liable or responsible to User, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Thirdwork.
11. Notices. Other than routine communications made in the ordinary course of performing any obligations under the Agreement, all notices or other communications required or permitted to be given under the Agreement must be in writing and will be deemed to have been sufficiently given when delivered in person (with written confirmation of receipt), on the second business day after mailing via a responsible international courier, on the date sent by email, electronic facsimile transmission or other direct human-readable electronic means (with confirmation of transmission) if sent during normal business hours of the recipient, or on the fifth business day after mailing by first class registered or certified mail, postage prepaid, to the address stated on the first page of the Agreement or to such other address or individual as either party may specify from time to time in writing or transmitted electronically if confirmed in writing by one of the above methods.
12. Governing Law; Jurisdiction. The Agreement and all rights and duties under the Agreement are governed by, and construed in accordance with, the laws of the State where Thirdwork’s principal office is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to the Agreement or the transactions contemplated hereunder. The parties hereby irrevocably consent to exclusive jurisdiction of, and venue in, State or Federal court in the State where Thirdwork’s principal office is located.
13. Compliance. Each party shall comply with all applicable statutes, laws and regulations.
14. Restrictive Covenants; Non-Solicitation. During the Term and for one (1) year thereafter, User shall not, either alone or in partnership with any other person, firm or corporation, as principal, agent, shareholder or in any other manner, either directly or indirectly: (i) solicit, induce, recruit, encourage or influence (or attempt to induce, recruit, encourage or influence) any person who is employed or subcontracted by Thirdwork to terminate or alter his or her employment or contract with Thirdwork; or (ii) solicit, direct, take away or attempt to solicit, direct or take away any subcontractor or any of their affiliates that the Thirdwork used to provided Services to, on behalf of, or because of User’s relationship with Thirdwork or cause any such subcontractors to alter its relationship with Thirdwork.
15. Entire Agreement. This Agreement and the attachments hereto or referenced terms herein constitute the entire understanding and agreement between the parties with respect to the subject matter hereof and shall supersede any prior understandings and agreements, whether written or oral, between the parties with respect to that subject matter. Thirdwork expressly limits acceptance of the Agreement to the terms stated herein. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgment, acceptance, or confirmation used by User in connection with the implementation of the Agreement are hereby objected to and rejected by Thirdwork and shall not apply to the Agreement.
16. Survival. Each of the provisions of the Agreement that by their nature are intended to survive the termination or expiration of the Agreement shall so survive, including, without limitation, Sections 2, 3, 4, 6, 7 – 18, their subsections, and any defined terms used in the forgoing.
17. Use of Thirdwork’s Name. Thirdwork may disclose to any third party that it has provided the Services to User hereunder and use Thirdwork’s or User’s name in any press releases, advertisements, trade shows, posters, reference lists, or similar public announcements without need of User’s further consent.
18. Miscellaneous. This Agreement may only be amended or modified by a written instrument executed by duly authorized representatives of both User and Thirdwork. User may not assign or otherwise transfer the Agreement or any of its rights or obligations hereunder without first obtaining the written consent of Thirdwork. Any assignment or transfer of rights or obligations in violation of this Section is null and void ab initio. The Agreement shall be binding upon and inure to the benefit of each party’s permitted assigns. Except as expressly stated herein, each party intends that the Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties hereto, Thirdwork’s affiliates, and their successors and permitted assigns. User acknowledges and authorizes Thirdwork to use subcontractors to perform Services under this Agreement. No term or provision of the Agreement will be considered waived and no breach consented to by either party unless such waiver or consent is in writing and signed on behalf of the party against whom it is asserted and such writing includes a specific statement of such party’s intent to make such waiver or consent. No consent to or waiver of a breach of the Agreement by either party, whether express or implied, will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach of the Agreement by such party. The Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in the Agreement are for reference only and will not affect the interpretation of the Agreement. A signed copy of the Agreement delivered by e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of the Agreement. In the event of any proceeding arising out of or relating to the Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses incurred in connection with such proceeding, including court costs and reasonable attorneys’ fees. The rights and remedies under the Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law, in equity or otherwise, except to the extent expressly provided in the Agreement to the contrary.