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TERMS AND CONDITIONS
This document is a legal agreement between you, the “Seller” (as defined below) and FlipShark.com. These Seller’s Terms and Conditions (“Agreement”) sets forth the provisions under which the Seller may register and use the web-site for the purpose of responding to solicitations for the acquisition of software solutions, services, and products.
DEFINITIONS
Site (s): FlipShark.com: is the parent company and owner of the site also hereinafter referred to FlipShark.com.
Bid Requests: Users of the site desiring to purchase customer software solutions via a reverse auction make bid requests on the site to solicit bids from software developers.
Bids: Anyone that places a bid on a project in an attempt to gain employment.
Buyer: Individual (s) or a Company instigating a project in an effort to gain bids for same.
Seller: Individual (s) or a Company providing a service.
- TERM
The initial term of this Agreement shall be a period of one (1) year from the Effective Date. Thereafter, the Agreement shall automatically renew for subsequent one (1) year terms. At any time, either party may terminate this agreement, with or without cause, upon thirty (30) days prior written notice. FlipShark.com reserves the right to immediately terminate any Seller who commits fraud, slander, a denial-of-service attack, or commits any other action which it deems inappropriate. Neither party has made any commitments regarding the duration or renewal of this Agreement beyond those stated herein.
- SCOPE
Upon completion of the Registration Form and after accepting the site Terms of Service and this agreement, the Seller is authorized to respond to Bid Requests. Final content of all responses to Bid Request documents is at the complete and
sole discretion of the Seller. FlipShark.com reserves the editorial right to censor any responses that it feels are inappropriate. This is a master agreement between Seller and FlipShark.com and shall apply to all transactions and business conducted between the parties.>
- SELLER’S OBLIGATIONS
Seller will provide solutions and/or quotations via FlipShark.com in response to Bid Requests posted on FlipShark.com’s website by Buyers. This Agreement shall govern the business relationship between FlipShark.com and Seller despite any different or conflicting terms and conditions in Seller’s forms or other documents.
- Seller authorizes FlipShark.com to treat any person using Seller’s password pair (username and password), and any resulting transactions, obligations and liabilities as if Seller used the website and/or services itself.
- Seller's information shall be true, accurate and up-to-date at all times. This includes, but is not limited to, information within a response to Bid Request documents, information concerning intellectual property ownership and rights thereto. Seller shall determine how intellectual property rights shall be transferred, if any, to Buyer. Seller is solely responsible for protecting its intellectual property rights, including works made for hire, and for negotiating all rights, title and interests therein with Buyers.
- Seller agrees to post bids for the entire project. Hourly bids are not allowed. As this site is intended for commercial purposes only...offering free services, or redirecting a buyer to a site other than FlipShark.com to fulfill their needs is prohibited. Posting contact information including but not limited to phone #s, email addresses, Internet URL's, Yahoo Messenger Ids, ICQ ids, on bids or an author's profile is strictly prohibited. Violators of any of these terms can have all of their FlipShark.com accounts terminated, at the discretion of FlipShark.com.
- Advance Payments. Seller agrees not to ask for any 'Advance Payments' from buyer. An advance payment is a risky transaction where the buyer releases funds from his account prior to the delivery of the work (or percentage of work being accepted), is competed. Doing this completely circumvents and nullifies all the built-in buyer protections of the FlipShark.com payment system, and often results in the buyer losing part or all of their advance payment. Sellers who go against the wishes of FlipShark.com and receive an advanced payment from the Buyer may have their credit account debited to facilitate a partial or complete refund of any advanced payment back to the buyer. Additionally, Sellers in violation of this rule may have their account suspended and revoked.
- Third Party Code. Seller is responsible for ensuring that all code, algorithms, ideas and/or any other item used to create their deliverables to the buyer are completely of their own making. If the Seller wishes to use 3rd party items (including but not limited to 3rd party components, GNU licensed code, etc.), then the Seller agrees to first confer with the buyer and:
- Explain which items in the bid request the Seller wishes to use 3rd party items for, and which 3rd party items would be involved. This must be documented on the site via the site bidding system.
- Explain to the buyer the cost, copyright, distribution and licensing issues concerned with the use of such items. (For example, many Buyers do not want GNU licensed code in their deliverables once they understand the licensing issues
involved therefore it needs to be explained to them what they would be receiving). This must be documented on the site via the site bidding system.
3. Have the buyer confirm agreement, to the use of any 3rd party items which the
two parties agree to. This must be documented on the site via the site bidding
system.
Should arbitration occur and the Seller not follow these rules,
FlipShark.com
may immediately arbitrate in favor of the buyer, as well as consider punitive
actions against the Seller.
As most buyers are not technologically savvy, the Seller is also responsible for
creating an install package that will install the software, in 100% ready-to-run
condition, on the platform (s) specified by the buyer on the bid request. Note
that this requirement can be waived by the Seller if documented via the bidding
system or the bid request description.
As FlipShark.com provides its service in return for a Fee, the
Seller agrees not to contact any Buyer outside of the site (by email, phone,
etc.) before payment is made . Doing so can result in
immediate account termination and expulsion, at the discretion of
FlipShark.com.
The Seller shall not be responsible for FlipShark.com’s transaction fees.
However, in the event that FlipShark.com procures, or is the procuring cause
of, a solution for Buyer’s Bid Request, and Buyer and Seller do not use the
FlipShark.com website or services to transact their business and/or use other
means to transact their business, Seller shall be considered guilty of 'fraud'.
The Seller shall also be considered guilty of fraud should they find a buyer in
an 'open auction' and attempt to cheat FlipShark.com out of the 'open auction'
fee by redirecting the buyer to repost the auction as a cheaper auction such a
'one-on-one', even though the buyer made full use of the open auction. In either
case the seller shall pay FlipShark.com a penalty fee in the amount of
twenty-five percent (25%) of the amount paid to Seller. Such fees may be
deducted from the Seller's outstanding credits on the site, at
FlipShark.com's
option. FlipShark.com reserves the right to terminate any Seller who
circumvents the site in this manner.
The anonymous nature of the Internet makes it possible for a seller who has had
their account involuntarily terminated (or who received unfavorable ratings on
that account) to create another account on the site and resume transacting
business on the site, against the will of FlipShark.com.
FlipShark.com
regularly monitors site profiles for this sort of action, and should the Seller
be determined by FlipShark.com to have done this, they will forfeit the
balance of all of their accounts, and all funds will be returned back to the
original buyer.
Seller understands and agrees that FlipShark.com may be called upon by the
buyer, a third party, or a self-initiated investigation to audit the work that
was performed. Seller agrees to make available to FlipShark.com all source
code related to the questioned bid requests. FlipShark.com agrees not to copy,
acquire, sell, barter, trade, or use this source code in any manner other than
to verify that work was performed as contracted. If a non disclosure is required
by the buyer to view the source code, FlipShark.com and the Buyer will make
all resonable arrangements
Since FlipShark.com would be considered liable should a buyer dispute
delivery, Seller agrees to upload the entire and complete deliverables at the
time of work (or each stage) completion. Should a coder choose not to do so
(despite this agreement) and the buyer disputes delivery, Seller agrees that
they, not FlipShark.com, will be liable for the entire amount.
FlipShark.com
will deduct all such disputed monies from the coder's account. If the coder's
account is insufficient to cover the funds the coder will be asked to cover the
remainder from their personal funds. If coder cannot or will not cover the
reamainder from their private funds, FlipShark.com may pursue all and any
means at its disposal to collect the funds including prosecution.
Seller has the right to rate buyers on completed transactions and transactions
that are cancelled in Seller's favor. However should FlipShark.com, at its
sole discretion, determine that a Seller's rating is inaccurate or in any way
retaliatory in nature, then FlipShark.com may amend, replace or delete the
Seller's rating, and a note about such may be placed as a public rating on the
Seller's account. A Seller who practices retaliatory ratings may be found in
default of this agreement and banned from the site.
3b.FlipShark.com RULES OF ARBITRATION
These rules of arbitration exist to ensure a fair and safe environment for the
buying and selling of computer software and related systems. Should a dispute
arise over the completion of a project, the allocation of funds,
or any other issue, both Buyer, Seller andFlipShark.com agree to the
following rules:
1) Should the Buyer and Seller not be able to come to agreement on acceptance,
whether deliverables have been met, or any other matter, both sides agree to
designate FlipShark.com as mediator and arbitrator. FlipShark.com agrees to
mediate and arbitrate fairly and impartially according to the rules in this
section, as they apply. Buyer and Seller agree that FlipShark.com's decision
is final and binding to them.
2) Arbitration of the bid request will be based solely on whether or not the
seller met the conditions specified in the buyer's bid request. Only the
contents of the bid request as posted on the site will be used in this
determination. Since discussions outside of the site (including email, chat and
oral conversations) are not legally binding, they will not be taken into
account. If there is any ambiguity in the bid request, FlipShark.com will be
the final determiner of the meaning and will attempt to do so in the most
impartial method possible.
3) Buyer agrees to be prompt in corresponding with Seller and FlipShark.com,
including final acceptance of 'Work Complete'. Should a buyer not respond to
FlipShark.com emails or requests for Work Complete within a timely basis (3
business days and 5 business days, respectively), FlipShark.com may at its
discretion award funds to the coder.
4) Seller agrees to be prompt in responses to Buyer and to FlipShark.com.
Should a Seller not complete status reports or respond to FlipShark.com emails
within a timely basis of 3 business days, FlipShark.com may cancel the
Seller's bid and/or assign the bid requests to another Seller. This may be done
with or without notice to the original Seller.
5) If the Buyer charges that the Seller is not making sufficient progress on a
bid request, the Seller must supply specific demonstrable proof to the contrary
or FlipShark.com may cancel the Seller's bid and/or assign the bid requests to
another Seller. Examples of demonstrable proofs of progress are (depending on
the level of progress expected) programming requirements, designs, prototype,
code and/or test cases.
6) If either party threatens or harasses the other party or FlipShark.com,
attempts to manipulate or unduly influence the arbitration process, or breaks
any rules in the buyer or seller agreement or in the site terms and conditions,
then FlipShark.com may choose to automatically rule in favor of the opposite
party.
7) If the Seller is deemed as not having fulfilled the bid request according to
the 'deliverables' specified by the Buyer...the Buyer may, at his/her/their
option, apply the entire amount to a new Seller at no charge.
FlipShark.com will offer the Buyer options (if available) of switching to
other Sellers on the original bid, opening a new bid request to get new Seller
bids, or otherwise offering to connect the Buyer with Sellers for the purpose of
completing the project. The buyer also has the option to cancel the bid request
and request a refund of funds. As FlipShark.com incurs certain
fixed financial institution costs with transferring and refunding
funds, all refunds of this nature are subject to a 3.5% cancellation charge to
offset these charges.
8) To prevent 'retaliatory ratings', the losing party in an arbitration forfeits
the right to rate the other party. FlipShark.com reserves the right to suspend
rating rights on the bid request to either or both parties, and/or to remove
ratings it judges to be retaliatory.
9) (added 3/2/2002) If a Seller does not upload completed code to the site by
the delivery deadline posted by the buyer, then Seller forfeits all rights to
arbitration and FlipShark.com may at its discretion award funds
back to the Buyer immediately.
4. SELLER’S REPRESENTATIONS.
Seller represents that it has the full power and authority to execute this
Agreement. Seller is the owner of, and/or has received all appropriate consent
from the owners of, any and all material, information, intellectual property in
any form, or other data that Seller makes available to FlipShark.com.
5. ACCEPTANCE
Upon Buyer’s receipt and acceptance of Seller’s service or product, they will
promptly indicate acceptance via the web site. Upon acceptance,
FlipShark.com
shall credit the Seller's account with the final amount, minus the
FlipShark.com Fee. The Fee is calculated as a percentage of
the amount of the funds and is based on the bidding type of the
auction. If the FlipShark.com Fee falls below the minimum fee of ($3), the
minimum FlipShark.com Fee will be charged.
Should there be any dispute regarding acceptance, both Seller and Buyer
designate FlipShark.com as the final binding authority and arbiter of the
dispute, and agree to abide by its decision.
6 Taxes
FlipShark.com does not collect taxes, duties, fees or other governmentally
imposed excises, so Seller and Buyer agree to assume their respective
responsibilities under the law.
7. TRADEMARKS AND CONFIDENTIAL INFORMATION.
Trademarks. FlipShark.com may use Buyer’s Trademarks in Bid Requests, or
related documentation. FlipShark.com’s or Seller’s use of Trademarks shall be
consistent with proper trademark usage. Neither party grants to the other any
right, title, or interest in any Trademarks except as provided in this Section.
Seller is responsible for appropriately attributing any of its Trademarks or the
trademarks of third parties.
Access to and Use of Confidential Information. A party receiving Confidential
Information agrees (i) that it is claimed to be a trade secret of the other
party, (ii) not to disclose or use any of such Confidential Information for any
purpose except as necessary and consistent with the terms of this Agreement,
(iii) to limit the use of and access to such Confidential Information to only
those employees who have a need to know, and (iv) that it will immediately
notify the other party in writing of any unauthorized disclosures and/or use
thereof. Such notice shall include a detailed description of the circumstances
of the unauthorized disclosure or use and the parties.
Exclusions. A party shall have no obligation as to Confidential Information that
(i) is provided in a tangible form and not labeled as confidential or
proprietary, or if provided orally, not designated as confidential or
proprietary at the time of disclosure, (ii) is known to the receiving party at
the time of disclosure, as evidenced by documentation in the receiving party's
possession at the time of such disclosure, (iii) is independently developed by
the receiving party (provided the receiving party can show that such development
was accomplished by or for the receiving party without the use of or any
reference to Confidential Information), (iv) becomes rightfully known to the
receiving party from another source without confidentiality restrictions, (v) is
or becomes part of the public domain through no wrongful act of the receiving
party, or (vi) is furnished by the disclosing party to a third party without
confidentiality restrictions. A receiving party may disclose Confidential
Information pursuant to a competently authorized judicial or governmental
request, requirement or order, provided that the receiving party takes
reasonable steps to give the disclosing party sufficient notice to contest such
request, requirement or order and/or to seek a protective order.
Return of Confidential Information. In any event of termination or expiration of
this Agreement, each party will, within five (5) business days return to the
other party such party’s Confidential Information.
8. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
Infringement Claims. Seller will defend and hold FlipShark.com 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. Seller will pay all settlements or damages awarded against
FlipShark.com, provided that FlipShark.com (i) informs Seller of such suit
or proceeding in writing and within thirty (30) days of actual notice of a
claim, and provides Seller with all related information, (ii) grants Seller the
authority to settle or litigate such suit or proceeding, and (iii) provides all
necessary assistance to Seller.
9 LIMITATION OF LIABILITY; INDEMNITY.
IN NO EVENT SHALL FlipShark.com BE LIABLE TO BUYER, 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
FlipShark.com 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.
Indemnification by Seller. Seller shall indemnify, defend (with counsel approved
in writing by FlipShark.com) and hold FlipShark.com, 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 Seller, its employees, representatives or agents.
10 DEFAULT AND TERMINATION.
Default. Should the Seller default, their account may be terminated by
FlipShark.com. Seller shall be considered to have defaulted under the
Agreement for any failure to perform its obligations to Buyer under any Bid
request awarded to Seller and/or if FlipShark.com discovers any material
misrepresentation or omission that Seller has made in this Agreement or its
Registration. 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. Seller may also be considered in default if they violate the
site terms of service, or violate the Custom Software buyer Agreement (if they
are also a buyer), or if their service to buyers is poor (defined as receiving 2
or more below average ratings and/or complaints).
Survival. The parties' obligations under Sections 7, 8 and 9 shall survive any
termination and/or expiration of this Agreement.
11. GENERAL.
Assignment. Seller shall not assign or transfer this Agreement without
FlipShark.com’s prior written consent, which shall not be unreasonably
withheld. Any attempted assignment shall be null and void.
Relationship of the Parties. This 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 FlipShark.com is the agent for Seller and Buyer in
bringing the two, or more, parties together using the FlipShark.com website.
FlipShark.com 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.
Excused Performance. Neither party shall be liable for failure to perform its
obligations under this Agreement for causes beyond its reasonable control.
No Waiver. The 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 such provision.
Unenforceable Provisions. If 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.
Modifications; Special Agreements; Entire Agreement. Note that
FlipShark.com
reserves the right from time to time to amend, modify or change this agreement.
When this happens, FlipShark.com 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 FlipShark.com 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 Seller and FlipShark.com
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.
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