Terms of Service | Terms Of Service and Arbitration |
|
|
|
| Written by Administrator | |
| Thursday, 12 January 2006 | |
|
Standard Asterisk Guru / Customer Agreement This document is a legal agreement between you, the Asterisk Guru (as defined below) and Asterisk Helpdesk. These Asterisk Guru Terms and Conditions (Agreement) sets forth the provisions under which the Asterisk Guru 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): Asterisk Helpdesk: (if applicable) is the parent company and owner of the site also hereinafter referred to Asterisk Helpdesk. Bid Requests: Users of the site desiring to purchase customer hardware/software solutions via a reverse auction make bid requests on the site to solicit bids from Asterisk Gurus. Bids: Anyone that places a bid on a project in an attempt to gain employment. Customer" Individual (s) or a Company instigating a project in an effort to gain bids for same. Asterisk Guru: 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. Asterisk Helpdesk reserves the right to immediately terminate any Asterisk Guru 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 Asterisk Guru 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 Asterisk Guru. Asterisk Helpdesk reserves the editorial right to censor any responses that it feels are inappropriate. This is a master agreement between Asterisk Guru and Asterisk Helpdesk and shall apply to all transactions and business conducted between the parties. 3. Asterisk Guru’s OBLIGATIONS Asterisk Guru will provide solutions and/or quotations via Asterisk Helpdesk in response to Bid Requests posted on Asterisk Helpdesk website by Customer's. This Agreement shall govern the business relationship between Asterisk Helpdesk and Asterisk Guru despite any different or conflicting terms and conditions in Asterisk Guru forms or other documents. o Asterisk Guru authorizes Asterisk Helpdesk to treat any person using Asterisk Guru password pair (username and password), and any resulting transactions, obligations and liabilities as if Asterisk Guru used the website and/or services itself. o Asterisk Guru'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. Asterisk Guru shall determine how intellectual property rights shall be transferred, if any, to Customer. Asterisk Guru is solely responsible for protecting its intellectual property rights, including works made for hire, and for negotiating all rights, title and interests therein with Customers. o Asterisk Guru 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 Customer to a site other than Asterisk Helpdesk 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 Asterisk Helpdesk accounts terminated, at the discretion of Asterisk Helpdesk. o Advance Payments. Asterisk Guru agrees not to ask for any 'Advance Payments' from Customer. An advance payment is a risky transaction where the Customer 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 Customer protections of the Asterisk Helpdesk payment system, and often results in the Customer losing part or all of their advance payment. Asterisk Gurus who go against the wishes of Asterisk Helpdesk and receive an advanced payment from the Customer may have their credit account debited to facilitate a partial or complete refund of any advanced payment back to the Customer. Additionally, Asterisk Gurus in violation of this rule may have their account suspended and revoked. o Third Party Code. Asterisk Guru is responsible for ensuring that all code, algorithms, ideas and/or any other item used to create their deliverables to the Customer are completely of their own making. If the Asterisk Guru wishes to use 3rd party items (including but not limited to 3rd party components, GNU licensed code, etc.), then the Asterisk Guru agrees to first confer with the Customer and: § Explain which items in the bid request the Asterisk Guru 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 Customer the cost, copyright, distribution and licensing issues concerned with the use of such items. (For example, many Customers 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 Customer 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. o Should arbitration occur and the Asterisk Guru not follow these rules, Asterisk Helpdesk may immediately arbitrate in favor of the Customer, as well as consider punitiveactions against the Asterisk Guru. o As most Customers are not technologically savvy, the Asterisk Guru 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 Customer on the bid request. Note that this requirement can be waived by the Asterisk Guru if documented via the bidding system or the bid request description. o As Asterisk Helpdesk provides its service in return for a Fee, the Asterisk Guru agrees not to contact any Customer 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 Asterisk Helpdesk. o The Asterisk Guru shall not be responsible for Asterisk Helpdesk transaction fees. However, in the event that Asterisk Helpdesk procures, or is the procuring cause of, a solution for Customer Bid Request, and Customer and Asterisk Guru do not use the Asterisk Helpdesk website or services to transact their business and/or use other means to transact their business, Asterisk Guru shall be considered guilty of 'fraud'. The Asterisk Guru shall also be considered guilty of fraud should they find a Customer in an 'open auction' and attempt to cheat Asterisk Helpdesk out of the 'open auction' fee by redirecting the Customer to repost he auction as a cheaper auction such a 'one-on-one', even though the Customer made full use of the open auction. In either case the Asterisk Guru shall pay Asterisk Helpdesk a penalty fee in the amount of twenty-five percent (25%) of the amount paid to Asterisk Guru. Such fees may be deducted from the Asterisk Guru's outstanding credits on the site, at Asterisk Helpdesk's option. Asterisk Helpdesk reserves the right to terminate any Asterisk Guru who circumvents the site in this manner. o The anonymous nature of the Internet makes it possible for a Asterisk Guru 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 Asterisk Helpdesk. Asterisk Helpdesk regularly monitors site profiles for this sort of action, and should the Asterisk Guru be determined by Asterisk Helpdesk to have done this, they will forfeit the balance of all of their accounts, and all funds will be returned back to the original Customer. o Asterisk Guru understands and agrees that Asterisk Helpdesk may be called upon by the Customer, a third party, or a self-initiated investigation to audit the work that was performed. Asterisk Guru agrees to make available to Asterisk Helpdesk all source code related to the questioned bid requests. Asterisk Helpdesk 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 Customer to view the source code, Asterisk Helpdesk and the Customer will make all resonable arrangements. o Should a Customer dispute delivery, Asterisk Guru 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 Customer disputes delivery, Asterisk Guru agrees that they, not Asterisk Helpdesk, will be liable for the entire amount. Asterisk Helpdesk 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, Asterisk Helpdesk may pursue all and any means at its disposal to collect the funds including prosecution. o Asterisk Guru has the right to rate Customers on completed transactions and transactions that are cancelled in Asterisk Guru's favor. However should Asterisk Helpdesk, at its sole discretion, determine that a Asterisk Guru's rating is inaccurate or in any way retaliatory in nature, then Asterisk Helpdesk may amend, replace or delete the Asterisk Guru's rating, and a note about such may be placed as a public rating on the Asterisk Guru's account. A Asterisk Guru who practices retaliatory ratings may be found in default of this agreement and banned from the site. 4. Asterisk Helpdesk 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 Customer, Asterisk Guru andAsterisk Helpdesk agree to the following rules: 1) Should the Customer and Asterisk Guru not be able to come to agreement on acceptance, whether deliverables have been met, or any other matter, both sides agree to designate Asterisk Helpdesk as mediator and arbitrator. Asterisk Helpdesk agrees to mediate and arbitrate fairly and impartially according to the rules in this section, as they apply. Customer and Asterisk Guru agree that Asterisk Helpdesk's decision is final and binding to them. 2) Arbitration of the bid request will be based solely on whether or not the Asterisk Guru met the conditions specified in the Customer'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, Asterisk Helpdesk will be the final determiner of the meaning and will attempt to do so in the most impartial method possible. 3) Customer agrees to be prompt in corresponding with Asterisk Guru and Asterisk Helpdesk, including final acceptance of 'Work complete'. Should a Customer not respond to Asterisk Helpdesk emails or requests for Work Complete within a timely basis (3 business days and 5 business days, respectively), Asterisk Helpdesk may at its discretion award funds to the coder. 4) Asterisk Guru agrees to be prompt in responses to Customer and to Asterisk Helpdesk. Should a Asterisk Guru not complete status reports or respond to Asterisk Helpdesk emails within a timely basis of 3 business days, Asterisk Helpdesk may cancel the Asterisk Guru's bid and/or assign the bid requests to another Asterisk Guru. This may be done with or without notice to the original Asterisk Guru. 5) If the Customer charges that the Asterisk Guru is not making sufficient progress on a bid request, the Asterisk Guru must supply specific demonstrable proof to the contrary or Asterisk Helpdesk may cancel the Asterisk Guru's bid and/or assign the bid requests to another Asterisk Guru. 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 Asterisk Helpdesk, attempts to manipulate or unduly influence the arbitration process, or breaks any rules in the Customer or Asterisk Guru agreement or in the site terms and conditions, then Asterisk Helpdesk may choose to automatically rule in favor of the opposite party. 7) If the Asterisk Guru is deemed as not having fulfilled the bid request according to the 'deliverables' specified by the Customer...the Customer may, at his/her/their option, apply the entire amount to a new Asterisk Guru at no charge. Asterisk Helpdesk will offer the Customer options (if available) of switching to other Asterisk Gurus on the original bid, opening a new bid request to get new Asterisk Guru bids, or otherwise offering to connect the Customer with Asterisk Gurus for the purpose of completing the project. The Customer also has the option to cancel the bid request and request a refund of funds. As Asterisk Helpdesk 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. Asterisk Helpdesk 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 Asterisk Guru does not upload completed code to the site by the delivery deadline posted by the Customer, then Asterisk Guru forfeits all rights to arbitration and Asterisk Helpdesk may at its discretion award funds back to the Customer immediately. 5. Asterisk Guru’S REPRESENTATIONS. Asterisk Guru represents that it has the full power and authority to execute this Agreement. Asterisk Guru 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 Asterisk Guru makes available to Asterisk Helpdesk. 6. ACCEPTANCE Upon Customer’s receipt and acceptance of Asterisk Guru’s service or product, they will promptly indicate acceptance via the web site. Upon acceptance, Asterisk Helpdesk shall credit the Asterisk Guru's account with the final amount, minus the Asterisk Helpdesk 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 Asterisk Helpdesk Fee falls below the minimum fee of ($3), theminimum Asterisk Helpdesk Fee will be charged. Should there be any dispute regarding acceptance, both Asterisk Guru and Customer designate Asterisk Helpdesk as the final binding authority and arbiter of the dispute, and agree to abide by its decision. 7. Taxes Asterisk Helpdesk does not collect taxes, duties, fees or other governmentally imposed excises, so Asterisk Guru and Customer agree to assume their respective responsibilities under the law. 8. TRADEMARKS AND CONFIDENTIAL INFORMATION. Trademarks. Asterisk Helpdesk may use Customer’s Trademarks in Bid Requests, or related documentation. Asterisk Helpdesk’s or Asterisk Guru’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. Asterisk Guru 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. Asterisk Guru will defend and hold Asterisk Helpdesk 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. Asterisk Guru will pay all settlements or damages awarded against Asterisk Helpdesk, provided that Asterisk Helpdesk (i) informs Asterisk Guru of such suit or proceeding in writing and within thirty (30) days of actual notice of a claim, and provides Asterisk Guru with all related information, (ii) grants Asterisk Guru the authority to settle or litigate such suit or proceeding, and (iii) provides all necessary assistance to Asterisk Guru. 10. LIMITATION OF LIABILITY; INDEMNITY. IN NO EVENT SHALL Asterisk Helpdesk BE LIABLE TO Customer's, Asterisk Guru'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 Asterisk Helpdesk 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 Asterisk Guru. Asterisk Guru shall indemnify, defend (with counsel approved in writing by Asterisk Helpdesk) and hold Asterisk Helpdesk, 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 Asterisk Guru, its employees, representatives or agents. 11. DEFAULT AND TERMINATION. Default. Should the Asterisk Guru default, their account may be terminated by Asterisk Helpdesk. Asterisk Guru shall be considered to have defaulted under the Agreement for any failure to perform its obligations to Customer under any Bid request awarded to Asterisk Guru and/or if Asterisk Helpdesk discovers any material misrepresentation or omission that Asterisk Guru 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. Asterisk Guru may also be considered in default if they violate the site terms of service, or violate the Custom Software Customer Agreement (if they are also a Customer), or if their service to Customers 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. Asterisk Guru shall not assign or transfer this Agreement without Asterisk Helpdesk’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 Asterisk Helpdesk is the agent for Asterisk Guru and Customer in bringing the two, or more, parties together using the Asterisk Helpdesk website. Asterisk Helpdesk shall act as a fiduciary for Customer and Asterisk Gurus 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 Asterisk Helpdesk reserves the right from time to time to amend, modify or change this agreement. When this happens, Asterisk Helpdesk 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 Asterisk Helpdesk and the Asterisk Guru 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 Asterisk Guru and Asterisk Helpdesk 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. Asterisk Helpdesk Admin |
|
| Last Updated ( Sunday, 29 January 2006 ) |