7 CODER DEPOSIT GUARANTEE AND AGREEMENT.(Added 3/23/2003)
Buyer may require a Seller
to place a 'Coder Deposit' under the 'Coder Deposit Guarantee' feature of the site as a condition
of accepting their bid. This is a good-faith deposit placed by the
Seller to guarantee that the work will be completed. The deposit is held
in escrow by Exhedra, pending completion of the work.
Should the work be accepted by the Buyer
100%, the deposit will be returned to the Seller. Should it not be, then
the Seller will forfeit the deposit (or a pro-rated percentage of it...if only a percentage of work
Forfieted funds will be used to:
- Offset the Buyer's cancellation charge (if any). See the
Buyer Legal Agreement for information on when a cancellation charge might
- 100% of the remainder is
donated to charity.
If the Buyer and Seller cannot come to agreement as to whether or not the work
was partially or wholly completed, either party can ask that the project be
placed into arbitration
by a Rent a Coder arbitrator, who will determine exactly what was completed.
Both Buyer and Seller agree to abide by the decision of the Rent a Coder
arbitrator as final and binding.
To learn more about the 'Coder Deposit Guarantee', please
appropriate section of the 'Software Seller's Agreement'.
INTELLECTUAL PROPERTY INFRINGEMENT
Buyer will defend and hold Exhedra harmless in any suit or
proceeding based on a claim that any equipment, products or services transacted
under this Agreement, constitutes infringement of any copyright, patent or
trademark. Buyer will pay all
settlements or damages awarded against Exhedra, provided that Exhedra (i)
informs Buyer of such suit or proceeding in writing and within thirty (30) days of
actual notice of a claim, and provides Buyer with all related information, (ii)
grants Buyer the authority to settle or litigate such suit or proceeding
9. LIMITATION OF LIABILITY; INDEMNITY
Buyer may request advice regarding coder selection from Exhedra employees and contractors. Any advice given
is purely the opinion of the advice giver and is done only for the buyer's benefit of an
additional perspective. It does not constitute an endorsement or repudiation by Exhedra of the coder.
Additionally, Exhedra cannot and does not guarantee the work of any coder on the site, whether recommended by an Exhedra employee or contractor, or not.
NO EVENT SHALL EXHEDRA BE LIABLE TO BUYERS, SELLERS, OR ANY OTHER PERSON FOR
EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING WITHOUT LIMITATION THE COST OF COVER, LOSS OF PROFIT, USE, SAVINGS OR
REVENUE, OR THE CLAIMS OF THIRD PARTIES, WHETHER OR NOT EXHEDRA HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS. THE
LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
shall indemnify, defend (with counsel approved in writing by Exhedra) and hold Exhedra,
its officers, directors, shareholders, employees, insurers, attorneys,
successors and assigns harmless against any and all claims for cost, damage, expense
(including reasonable attorneys’ fees) or liability arising out of or related
to the acts or omissions of Buyer, its employees, representatives or agents.
Buyer shall not resell software, equipment, or products purchased in the
U.S. outside the U.S. without compliance with all applicable export regulations.
Buyer acknowledges that the export or re-export of Product is subject to
regulation by agencies of the U.S. Government, including in particular Parts
740, 742 and 744 of the Export Administration Regulations of the U.S. Department
of Commerce, which prohibit export or diversion of Product to certain countries
and persons. Buyer shall not assist
or participate in any such diversion or any other violation of applicable U.S.
laws and regulations relating to export or re-export of Product or any of the
technology related thereto.
Should the buyer default, their account may be terminated by Exhedra.
Buyer shall be considered to have defaulted under the Agreement for any failure to pay
any invoice, credit charge, or PayPal charge when due and/or if Exhedra discovers any material misrepresentation
or omission that Buyer has made in this Agreement, its Registration or Credit
Application. In the case of either
party, the failure by such party to observe or perform any material covenant or
obligation under this Agreement shall constitute default. Buyer may also be considered in
default if they violate the site terms of service, or violate the Custom Software Seller Agreement (if they are also a seller)
or if their conduct with sellers is poor (defined as receiving 2 or more below average ratings and/or complaints). Should Buyer default, and still have outstanding escrowed funds, Exhedra will
act to protect the time invested by coder(s) on the buyer's bid requests, by giving
the coder(s) the choice to:
1) continue the project and finish them according to the original specs (as specified in the bid request)
2) stop work and receive compensation for the percent completed at the time the coder was notified.
To prevent retaliatory action by the buyer on the coder, the buyer's input will not be taken on these options.
To ensure fairness, Exhedra will verify the veracity of any coder claims according to the rules of arbitration as stated above.
After disbursement to the coders, any remaining escrow funds will be returned to the buyer, after taking out a
3.5% cancellation fee.
either party gives the other notice of termination or advises the other of its
intent not to renew this Agreement, Exhedra may require Buyer to pay cash in
advance for subsequent transactions regardless of Buyer’s credit status.
parties' obligations under Section 7 shall survive any termination and/or
expiration of this Agreement.
12. CLOSING ACCOUNTS.
At the request of the Buyer, Exhedra
will close out their account, disabling all future use of it. However, Buyer understands and agrees that Exhedra will not delete any information, as it
is required to report such information to 3rd parties including (but not limited to) FBI investigations, IRS invstigations, credit card fraud investigations,
or for Exhera's own auditing purposes.
13. SECURITY AND VIRUSES.
Please note that Exhedra uses the best of its ability to protect all data from external and unauthorized party access
by the use of (but not limited to) firewalls, encryption and 3rd party security consultants.
Additionally it also uses the best of its ability to protect site users from viruses via virus scanning sofware.
However no security sytem and/or virus system is 100% secure or 100% effective.
Should sensitive data be confirmed as compromised, or a virus discovered on an Exhedra system, Exhedra will alert the affected Buyer
via email (to the address registered on the site). However, due to the nature of
security and viruses, Exhedra strongly advises the Buyer to take their own security precautions,
such as personal virus scanning software, and/or encrypting sensitive communications.
Given the nature of these matters, should a security compromise or virus incident occur,
Buyer agrees that Exhedra is not liable for the incident (in any way or kind) nor for any reprecusions of such an incident (in any way or kind).
shall not assign or transfer this Agreement without Exhedra’s prior written
consent, which shall not be unreasonably withheld. Any attempted assignment
shall be null and void.
Agreement does not create a franchise, joint venture or partnership between the
parties. Neither party hereunder is the agent, broker, partner, employee, or
legal representative of the other for any purpose, except that Exhedra is the
agent for Buyer and Seller in bringing the two, or more, parties together using
the Exhedra website. Exhedra shall
act as a fiduciary for Buyer and Sellers for the limited purpose of collecting
and disbursing funds. For all other
purposes, the parties are independent contractors.
for Buyer’s obligations to make payments, neither party shall be liable for
failure to perform its obligations under this Agreement for causes beyond its
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Florida.
In the event that any dispute or controversy between the parties arises
out of or is related to any of the provisions of this Agreement, and/or the
performance or termination thereof, such dispute or controversy shall be subject
to the exclusive jurisdiction of the Florida state courts in and for Tampa,
Florida (or, if there is federal jurisdiction, the U.S. District Court presiding that area) and the prevailing party in any such dispute shall recover all of
its costs, including reasonable attorneys’ fees.
shall be sufficient only if sent by certified mail or air express, return
receipt requested, or personally delivered to a party.
Notice by mail shall be deemed received on actual receipt.
Notices to Exhedra shall be sent to:
Exhedra Solutions, Inc.
Attn: Legal Services
14310 North Dale Mabry Hwy
Tampa, FL 33618
failure of either party to enforce any of the provisions hereof shall not be
construed to be a waiver of the right of such party to thereafter enforce any
any term of this Agreement is found to be illegal or unenforceable, the
remaining portions of this Agreement shall remain in effect, provided that the
parties agree to negotiate in good faith substitute enforceable terms.
Note that Exhedra reserves the right from time to time to amend, modify or change this
agreement. When this happens, Exhedra shall notate the new information clearly and post a notice in the 'news' section of the site about the update.
Due to the majority of parties requesting not to be contacted via email about updates to the site, email notice will not always be given. Additionally, due to
the financial costs associated with written notices...written notice will not always be given. If you are interested in keeping abreast of the latest
changes to this agreement, then please bookmark this page and review it from time to time, or monitor the 'news' section of the site.
IF ANY MODIFICATION IS
UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT BY
PROVIDING NOTICE TO US. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING
OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE
BINDING ACCEPTANCE OF THE CHANGE.
Should Exhedra and the Seller come to a special understanding not outlined in this agreement
it will be laid out in writing and signed by both parties.
This Agreement is the entire understanding between
Buyer and Exhedra with respect to the subject matter of this Agreement, and
supersedes all (i) proposals, oral or written, (ii) negotiations, conversations
or discussions between the parties and (iii) industry custom or past course of
dealing, relating to the subject matter.