Standard Software Freelancer / Webmaster Agreement

This document is a legal agreement between you, the “Freelancer” (as defined below) and FreelanceWell.com. These Freelancer’s Terms and Conditions (“Agreement”) sets forth the provisions under which the Freelancer 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): FreelanceWell.com: (if applicable) is the parent company and owner of the site also hereinafter referred to FreelanceWell.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.
Webmaster" Individual (s) or a Company instigating a project in an effort to gain bids for same.
Freelancer: Individual (s) or a Company providing a service.

1. 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. FreelanceWell.com reserves the right to immediately terminate any Freelancer 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.
2. SCOPE
   Upon completion of the Registration Form and after accepting the site Terms of Service and this agreement, the Freelancer 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 Freelancer. FreelanceWell.com reserves the editorial right to censor any responses that it feels are inappropriate. This is a master agreement between Freelancer and FreelanceWell.com and shall apply to all transactions and business conducted between the parties.
3. Freelancer’s OBLIGATIONS
   Freelancer will provide solutions and/or quotations via FreelanceWell.com in response to Bid Requests posted on FreelanceWell.com’s website by Webmaster's. This Agreement shall govern the business relationship between FreelanceWell.com and Freelancer despite any different or conflicting terms and conditions in Freelancer’s forms or other documents.
   • Freelancer authorizes FreelanceWell.com to treat any person using Freelancer’s password pair (username and password), and any resulting transactions, obligations and liabilities as if Freelancer used the website and/or services itself.
   • Freelancer'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. Freelancer shall determine how intellectual property rights shall be transferred, if any, to Webmaster. Freelancer is solely responsible for protecting its intellectual property rights, including works made for hire, and for negotiating all rights, title and interests therein with Webmasters.
   • Freelancer 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 Webmaster to a site other than FreelanceWell.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 FreelanceWell.com accounts terminated, at the discretion of FreelanceWell.com.
   • Advance Payments. Freelancer agrees not to ask for any 'Advance Payments' from Webmaster. An advance payment is a risky transaction where the Webmaster 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 Webmaster protections of the FreelanceWell.com payment system, and often results in the Webmaster losing part or all of their advance payment. Freelancers who go against the wishes of FreelanceWell.com and receive an advanced payment from the Webmaster may have their credit account debited to facilitate a partial or complete refund of any advanced payment back to the Webmaster. Additionally, Freelancers in violation of this rule may have their account suspended and revoked.
   • Third Party Code. Freelancer is responsible for ensuring that all code, algorithms, ideas and/or any other item used to create their deliverables to the Webmaster are completely of their own making. If the Freelancer wishes to use 3rd party items (including but not limited to 3rd party components, GNU licensed code, etc.), then the Freelancer agrees to first confer with the Webmaster and:
     • Explain which items in the bid request the Freelancer 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 Webmaster the cost, copyright, distribution and licensing issues concerned with the use of such items. (For example, many Webmasters 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.
     • Have the Webmaster 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 Freelancer not follow these rules, FreelanceWell.com may immediately arbitrate in favor of the Webmaster, as well as consider punitiveactions against the Freelancer.
     
   • As most Webmasters are not technologically savvy, the Freelancer 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 Webmaster on the bid request. Note that this requirement can be waived by the Freelancer if documented via the bidding system or the bid request description.
   • As FreelanceWell.com provides its service in return for a Fee, the Freelancer agrees not to contact any Webmaster 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 FreelanceWell.com.
   • The Freelancer shall not be responsible for FreelanceWell.com’s transaction fees. However, in the event that FreelanceWell.com procures, or is the procuring cause of, a solution for Webmaster’s Bid Request, and Webmaster and Freelancer do not use the FreelanceWell.com website or services to transact their business and/or use other means to transact their business, Freelancer shall be considered guilty of 'fraud'. The Freelancer shall also be considered guilty of fraud should they find a Webmaster in an 'open auction' and attempt to cheat FreelanceWell.com out of the 'open auction' fee by redirecting the Webmaster to repost he auction as a cheaper auction such a 'one-on-one', even though the Webmaster made full use of the open auction. In either case the Freelancer shall pay FreelanceWell.com a penalty fee in the amount of twenty-five percent (25%) of the amount paid to Freelancer. Such fees may be deducted from the Freelancer's outstanding credits on the site, at FreelanceWell.com's option. FreelanceWell.com reserves the right to terminate any Freelancer who circumvents the site in this manner.
   • The anonymous nature of the Internet makes it possible for a Freelancer 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 FreelanceWell.com. FreelanceWell.com regularly monitors site profiles for this sort of action, and should the Freelancer be determined by FreelanceWell.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 Webmaster.
   • Freelancer understands and agrees that FreelanceWell.com may be called upon by the Webmaster, a third party, or a self-initiated investigation to audit the work that was performed. Freelancer agrees to make available to FreelanceWell.com all source code related to the questioned bid requests. FreelanceWell.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 Webmaster to view the source code, FreelanceWell.com and the Webmaster will make all resonable arrangements.
   • Should a Webmaster dispute delivery, Freelancer 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 Webmaster disputes delivery, Freelancer agrees that they, not FreelanceWell.com, will be liable for the entire amount. FreelanceWell.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, FreelanceWell.com may pursue all and any means at its disposal to collect the funds including prosecution.
   • Freelancer has the right to rate Webmasters on completed transactions and transactions that are cancelled in Freelancer's favor. However should FreelanceWell.com, at its sole discretion, determine that a Freelancer's rating is inaccurate or in any way retaliatory in nature, then FreelanceWell.com may amend, replace or delete the Freelancer's rating, and a note about such may be placed as a public rating on the Freelancer's account. A Freelancer who practices retaliatory ratings may be found in default of this agreement and banned from the site.
   
   
4. FreelanceWell.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 Webmaster, Freelancer andFreelanceWell.com agree to the following rules:
   
   1) Should the Webmaster and Freelancer not be able to come to agreement on acceptance, whether deliverables have been met, or any other matter, both sides agree to designate FreelanceWell.com as mediator and arbitrator. FreelanceWell.com agrees to mediate and arbitrate fairly and impartially according to the rules in this section, as they apply. Webmaster and Freelancer agree that FreelanceWell.com's decision is final and binding to them.
   
   2) Arbitration of the bid request will be based solely on whether or not the Freelancer met the conditions specified in the Webmaster'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, FreelanceWell.com will be the final determiner of the meaning and will attempt to do so in the most impartial method possible.
   
   3) Webmaster agrees to be prompt in corresponding with Freelancer and FreelanceWell.com, including final acceptance of 'Work complete'. Should a Webmaster not respond to FreelanceWell.com emails or requests for Work Complete within a timely basis (3 business days and 5 business days, respectively), FreelanceWell.com may at its discretion award funds to the coder.
   
   4) Freelancer agrees to be prompt in responses to Webmaster and to FreelanceWell.com. Should a Freelancer not complete status reports or respond to FreelanceWell.com emails within a timely basis of 3 business days, FreelanceWell.com may cancel the Freelancer's bid and/or assign the bid requests to another Freelancer. This may be done with or without notice to the original Freelancer.
   
   5) If the Webmaster charges that the Freelancer is not making sufficient progress on a bid request, the Freelancer must supply specific demonstrable proof to the contrary or FreelanceWell.com may cancel the Freelancer's bid and/or assign the bid requests to another Freelancer. 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 FreelanceWell.com, attempts to manipulate or unduly influence the arbitration process, or breaks any rules in the Webmaster or Freelancer agreement or in the site terms and conditions, then FreelanceWell.com may choose to automatically rule in favor of the opposite party.
   
   7) If the Freelancer is deemed as not having fulfilled the bid request according to the 'deliverables' specified by the Webmaster...the Webmaster may, at his/her/their option, apply the entire amount to a new Freelancer at no charge. FreelanceWell.com will offer the Webmaster options (if available) of switching to other Freelancers on the original bid, opening a new bid request to get new Freelancer bids, or otherwise offering to connect the Webmaster with Freelancers for the purpose of completing the project. The Webmaster also has the option to cancel the bid request and request a refund of  funds. As FreelanceWell.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. FreelanceWell.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) If a Freelancer does not upload completed code to the site by the delivery deadline posted by the Webmaster, then Freelancer forfeits all rights to arbitration and FreelanceWell.com may at its discretion award funds back to the Webmaster immediately.
   
   
5. Freelancer’S REPRESENTATIONS.
   Freelancer represents that it has the full power and authority to execute this Agreement. Freelancer 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 Freelancer makes available to FreelanceWell.com.
   
   
6. ACCEPTANCE
   Upon Webmaster’s receipt and acceptance of Freelancer’s service or product, they will promptly indicate acceptance via the web site. Upon acceptance, FreelanceWell.com shall credit the Freelancer's account with the final amount, minus the FreelanceWell.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 FreelanceWell.com Fee falls below the minimum fee of ($3), theminimum FreelanceWell.com Fee will be charged.
   
   Should there be any dispute regarding acceptance, both Freelancer and Webmaster designate FreelanceWell.com as the final binding authority and arbiter of the dispute, and agree to abide by its decision.
   
   
7. Taxes
   FreelanceWell.com does not collect taxes, duties, fees or other governmentally imposed excises, so Freelancer and Webmaster agree to assume their respective responsibilities under the law.
   
   
8. TRADEMARKS AND CONFIDENTIAL INFORMATION.
   Trademarks. FreelanceWell.com may use Webmaster’s Trademarks in Bid Requests, or related documentation. FreelanceWell.com’s or Freelancer’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. Freelancer 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.
   
   
9. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
   Infringement Claims. Freelancer will defend and hold FreelanceWell.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. Freelancer will pay all settlements or damages awarded against FreelanceWell.com, provided that FreelanceWell.com (i) informs Freelancer of such suit or proceeding in writing and within thirty (30) days of actual notice of a claim, and provides Freelancer with all related information, (ii) grants Freelancer the authority to settle or litigate such suit or proceeding, and (iii) provides all necessary assistance to Freelancer.
   
   
10. LIMITATION OF LIABILITY; INDEMNITY.
    IN NO EVENT SHALL FreelanceWell.com BE LIABLE TO Webmaster's, Freelancer's, 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 FreelanceWell.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 Freelancer. Freelancer shall indemnify, defend (with counsel approved in writing by FreelanceWell.com) and hold FreelanceWell.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 Freelancer, its employees, representatives or agents.
    
    
11. DEFAULT AND TERMINATION.
    Default. Should the Freelancer default, their account may be terminated by FreelanceWell.com. Freelancer shall be considered to have defaulted under the Agreement for any failure to perform its obligations to Webmaster under any Bid request awarded to Freelancer and/or if FreelanceWell.com discovers any material misrepresentation or omission that Freelancer 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. Freelancer may also be considered in default if they violate the site terms of service, or violate the Custom Software Webmaster Agreement (if they are also a Webmaster), or if their service to Webmasters 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.
    
    
12. GENERAL.
    Assignment. Freelancer shall not assign or transfer this Agreement without FreelanceWell.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 FreelanceWell.com is the agent for Freelancer and Webmaster in bringing the two, or more, parties together using the FreelanceWell.com website. FreelanceWell.com shall act as a fiduciary for Webmaster and Freelancers 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 FreelanceWell.com reserves the right from time to time to amend, modify or change this agreement. When this happens, FreelanceWell.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 FreelanceWell.com and the Freelancer 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 Freelancer and FreelanceWell.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.
    
    FreelanceWell.com Admin