3b. RENT A CODER 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 escrowed funds, or any other issue, both Buyer, Seller and Exhedra agree to the following rules:

1) About Mediation / Arbitration:

Should the Buyer and Seller not be able to come to agreement on acceptance, (including but not limited to whether deliverables have been met and bid acceptance should occur), both parties agree to designate Exhedra as sole mediator and arbitrator (two distinct roles).  Exhedra agrees to mediate and arbitrate fairly and impartially according to the rules in this section, as they apply.  Buyer and Seller agree that Exhedra's decision is final and binding to them and hereby waive any other further legal challenges or remedies including but not limited to civil or criminal litigation against the other party or Exhedra.

2) Mediation:

Before arbitrating, Exhedra may attempt to first mediate a mutually acceptable compromise solution between both parties if it determines the option is a viable one. A mediated compromise can provide a quick and easy way for both parties to obtain a successful outcome, without the time and energy required by a full-blown arbitration. Both Buyer and Seller understand and acknowledge that they are NOT required to accept any mediation proposals. Exhedra acknowledges that the refusal of any party to accept a mediation proposal will not affect its standing in the subsequent arbitration.

If a mediation succesfully occurs in which the original contract is either reduced or cancelled, Exhedra will document what occured by placing a rating on one or both parties' records, as detailed below under "Exhedra Ratings".

Should either party not agree to a mediation compromise, or should Exhedra (at it's sole discretion) determine that the option is not a viable one, the process moves on to arbitration.

3) Arbitration:

Whereas mediation is like a diplomatic negotiation between two countries, arbitration is like a court trial. Much like a trial case, each party's side is weighed and often evidence needs to be gathered to determine the prevailing party.

Arbitration of the bid request is based solely on whether or not the Seller met the conditions specified in the Buyer's 'Entire Bid Request' (unless either Buyer or Seller prematurely forfeits by the other rules of arbitration detailed below).    The 'Entire Bid Request' is defined as:

• The original bid request posting on the site (which includes but is not limited to the description, attachment and deliverables)
• The subsequent clarifications and/or changes made in bids/comments from both sides in the site bidding/comment system.

     Both Buyer and Seller agree that any discussions conducted outside of the site (including email, off-site chat and oral conversations over the phone) are NOT considered part of the 'Entire Bid Request' and WILL NOT be taken into account. 

    Exhedra has found that due to poor wording or lack of attention to detail, that sometimes portions of the 'Entire Bid Request' contradict other portions or are unclear.  In the event that either Buyer or Seller disputes with the other party any portion of the 'Entire Bid Request' (including but not limited to disputes over an alleged contradiction,  interpretation, or applicability) Exhedra will be the final determiner of the best method of resolving the issue.  It will make this determination using the most impartial method that it can, in good faith, formulate. 

     Despite repeated warnings to both Buyer and Seller to the contrary, occasionally Exhedra finds that both parties have neglected to use the site to detail key items of the 'Entire Bid Request', withholding the information necessary to make what Exhedra feels is a "just" arbitration decision.  This can happen due to a deliberate manipulation by one party and/or due to genuine ignorance of the consequences of such behavior by one or both parties. Should Exhedra determine this to be the case, it may extend the definition of the 'Entire Bid Request' to include items not normally covered (such as 3rd party chat logs).  However, neither Buyer nor Seller may demand such an extension nor possess the "right" to such an extension.  Instead Buyers and Sellers agree to properly document the 'Entire Bid Request' on the site as Exhedar warns, and not expect, or count on an extension to occur in any arbitration.  Site users who repeatedly do not use the site to document the 'Entire Bid Request' may be ejected from the site.

4) 'Quick Resolution' Arbitrations

If a Seller does not upload completed code to the site by the delivery deadline posted by the buyer, then the Seller will be found in forfeit of the arbitration. However, to prevent an unscrupulous Buyer from unfarily manipulating a Coder to obtain free work...should Exhedra discover evidence that it feels indicates that the Buyer continued to work with the Seller after the deadline, then the deadline may be deemed "Implictly Extended" by the Buyer's actions..nullifying the previous deadline and the above mentioned forfeiture.

If the Seller has already agreed to provide status reports prior to the arbitration and did not fulfill that agreement, then they also be found in forfeit of the arbitration. However, to prevent an unscrupulous Buyer from unfarily manipulating a Coder to obtain free work...should Exhedra discover evidence that it feels indicates that the Buyer continued to work with the Seller after the status report requirement was not met, then the Buyer will be considered to have waived their rights to cancel on that particular missed stats report..nullifying the previous deadline and the above mentioned forfeiture. Note: status reports are NEVER required of the Seller while arbitration is in process.

5) 'Insufficient Progress' Arbitration

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. Examples of demonstrable proofs of progress are (depending on the level of progress expected) programming requirements, designs, prototype, code and/or test cases. If Exhedra determines that demonstratable proof of progress has not been supplied, the Seller will be found in forfeiture of arbitration. Exhedra may not only cancel the Seller's bid but also assign the Seller's other open bid requests to another, more responsible Seller. 

6) 'Deliverable Dispute' Arbitration

The typical arbitration case involves a disagreement on what was delivered. The Buyer typically claims that they did not receive 100% of the 'Entire Bid Request' and the Seller typically claims that they did provide this to the Buyer.

The only way to determine who is being truthful and who isn't, is to test the deliverables.  When this occurs, an Exhedra tester will perform "flaw list verification" where they compare the Buyer's list of problems (the "flaw list") to the actual application/deliverables.  Should one or more flaw list items be verified, then the Buyer wins arbitration.  Should no items be verified then the coder wins arbitration.  The process works as follows:

1) "The Flaw List": First Exhedra will request a detailed flaw list from the Buyer detailing exactly what the Buyer contends was not delivered, and (if appropriate) instructions on how to duplicate the alleged behavior.  Buyer agrees to provide the above when requested by Exhedra, so that Exhedra can confirm or deny whether the original bid request requirements were met or not.  Should the Buyer not provide the flaw list then they will be found in default of arbitration.  Note that all flaw list items will be screened per the "Flaw List Exceptions" rule below.

2) "Access to Systems": Buyer agrees to provide Exhedra access to whatever systems might be necessary for Exhedra to verify or deny the Buyer's claims in the flaw list (which may include software, hardware, etc.). Should the Buyer not do so, then they will be found in default of arbitration, and the Seller will be found the winner. 

An exception may be made if Exhedra determines that the final system was never released to the buyer. If so, the Seller agrees to either release the final system to the buyer or assume responsibilities for hosting the testing system...whichever Exhedra deems most appropriate to the situation. If the Seller assumes these responsibilities, they will provide Exhedra access to whatever systems might be necessary for Exhedra to verify or deny the Buyer's claims in the flaw list (which may include software, hardware, etc.). Should the Seller not do so, then they will be found in default of arbitration, and the Buyer will be found the winner. Should the Seller assume these responsiblities and win arbitration and Exhedra (in it's sole opinion) deems it fitting, Seller agrees to copy system to the Buyer's system such that no flaws reported in the flaw list exist on the Buyer's version of the system.

If, in Exhedra's sole judgment, it feels that the responsible party will not provide a fair testing environment, and they can devise of a solution that is expedient, efficient and inexpensive, then Exhedra may chose to host the testing environment on their systems or at a 3rd party location. Both parties agree to provide full and complete cooperation in assisting with the setting up of such an environment. Any party which does not cooperate will be found in default of the arbitration and the other party will be found the winner.

3) "Flaw List Exceptions": Certain types of flaw list items will not be tested and must be removed from the flaw list.  They include:

a) Subjective Items:

Items that cannot be objectively stated cannot be objectively tested.  The Buyer will be given the chance to restate them objectively, but if they do not, then they will be removed from the flaw list.
  
b) Cosmetic Items: 

The Seller acknowledges and understands that they are expected to follow software development standards, which dictate doing adequate testing to ensure that the application received by the buyer contains all agreed upon functionality and in stable working condition.  However, the Buyer also  acknowledges and understands that  the complexity of modern software makes it impossible to create software that is 100% bug free (Windows is an excellent example).  To ensure a fair test, certain items called "Cosmetic Items" will be removed from the flaws list. 

   "Cosmetic items" are defined as flaw list items that are infrequent, do not affect the major functionality of the deliverables and can be corrected very easily.  Some examples are a web page with the wrong background color or "typos" in a few data entry fields.  Should items be found to be "cosmetic items" and the Seller actually wins arbitration, then they will be required to fully correct them before receiving payment.

      Note that should the tester determine that the frequency of potentially cosmetic items shows a lack of adequate testing by the Seller, then the 'cosmetic' items will NOT be removed from the flaw list.

c) Setup program bug items:

The flaw list may contain reference to items caused by a faulty setup program.  Due to the exponential number of different computer configurations in the world, setup programs sometimes do not run perfectly on every machine.  More importantly, sometimes these issues cannot be identified until they are run on a particular "problem configuration" machine.  If the tester determines that one or more setup program related flaw items fall in this category and could not have been prevented by the Seller using adequate testing using their own equipment and proper testing measures commensurate with the bid request, then these flaw items will not be considered.

7) Forfeiting Arbitration by not responding

Buyer agrees to be prompt in corresponding with Seller and Exhedra, including final acceptance of 'Work Complete'.  Should a buyer not respond to Exhedra emails or requests for Work Complete within a timely basis (3 business days and 5 business days, respectively), they may forfeit the arbitration. Exhedra may at its discretion award escrowed funds to the coder.

Seller agrees to be prompt in responses to Buyer and to Exhedra.  Should a Seller not complete status reports prior to the beginning of the current arbitration or respond to Exhedra emails within a timely basis of 3 business days, Exhedra may consider the Seller in forfeit of the arbitration. If this occurs, in addition to the Seller's bid being cancelled, their existing open bid requests may be assigned to another, more responsible, Seller.  This may be done with or without notice to the original Seller.

8) When the Buyer Wins Arbitration:

If the Buyer wins arbitration, they may, at their option, apply the entire escrowed amount to a new Seller at no charge.  Rent a Coder 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 escrow funds.  To compensate Rent a Coder for the costs in this process, all refunds of this nature are subject to a 3.5% cancellation charge for the Buyer. However, to compensate the Buyer when cancellation is not their fault...should the Seller be determined by Exhedra to be "at fault" for the cancellation, then funds in the Seller's account (if available) will be used by Rent a Coder to lessen or completely eliminate this charge.

If the Buyer is awarded back 100% of their escrowed funds on a project, then they agree that the deliverables created by the coder may NOT be kept by the Buyer. Buyer agrees to relinquish possession by promptly and completely destroying all deliverables and copies of deliverables in their possession.

9) One Party Rating the Other Party:

To prevent 'retaliatory ratings', the losing party in an arbitration forfeits the right to rate the other party. Exhedra reserves the right to suspend rating rights on either party and/or to remove/edit ratings that it judges to be either retalitory in nature or involving a "trade" of favorable ratings to avoid a deserved bad rating.

10) Exhedra Ratings:

Exhedra reserves the right to rate any party at any time, as detailed previously.

However mediations and arbitration situations receive special scrutiny from Exhedra because they often tempt one party to "trade" a deserved bad rating in return for performing a concession for the other party.  This practice is unfair to future buyers and sellers who rely on the ratings to make decisions and taints the overall integrity of the rating system.

To prevent this, both parties agree to cooperate fully and completely with Exhedra's investigations as to why a cancellation or reduction in payment has occurred. Exhedra (at it's sole discretion) will determine who is "at fault" and will then apply it's own rating as follows:

• When one party is found at fault
  
  The at fault party receives a negative rating (3 or less) with a comment detailing  what occurred and the arbitration is recorded as a 'lost' arbitration on their record.
   
• When two parties are found at fault.
  
  Both parties will receive a negative rating (3 or less) with an comment detailing  what occurred and the arbitration is recorded as a 'lost' arbitration on their record.
   
• When Exhedra can't determine who is at fault
  
  There are times when it is not possible (or economically practical) to determine conclusively which party is at fault and which isn't.  In these cases, both parties will receive a neutral rating with a comment detailing each party's unverifiable position.  The arbitration is recorded as  'neutral' arbitration on both party's records.
   
• When Exhedra determines that neither party is at fault
  
  Both parties will receive a neutral rating with a comment detailing why the result was neither party "at fault".  The arbitration is recorded as  'neutral' arbitration on both party's records.
     

11) Coder cancellation grace period:

There are some legitimate reasons why a Coder may place a bid, but then at the time of escrowing, find they cannot take on the work. Some examples include simply winning more bids than anticipated, or due to a change in scope by the Buyer. If a Coder promptly notifies both Exhedra and the Buyer within 24 hours of the funds being escrowed that a legitimate reason is causing them not to complete the bid request, then Exhedra will grant them a neutral rating, rather than a bad rating. A comment on the Coder's record detailing that the work was not started will still be left, to fully document what occurred. Should Exhedra (at it's sole discretion) determine that the reason does not appear to be legitimate (including but not limited to 'I just don't feel like doing the work'), it can revoke this privilege.

12) Harrassment:

If either party threatens or harrasses the other party or Exhedra, 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 condtions, then Exhedra may choose to automatically rule in favor of the opposite party.

     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.
 
5b. Forfeited Deposits
     To prevent an unscrupulous Buyer from trying to abuse the Coder Deposit Guarantee to unfairly profit from Sellers, the forfeited deposit will not be given to the Buyer. Instead it goes to:

1. Offsetting the Buyer's cancellation charge (if any). See the Buyer Legal Agreement for information on when a cancellation charge might apply.
2. 100% of the remainder is donated to a non-profit charitable organization, the choice of which may change to ensure equal distribution to different charities in need.  Currently the non-profit charity is Heifer International, a charity that offers hungry families around the world Heifer animals (and training in their care) to feed themselves and become self reliant.

• Postal system payments (snail mail check and International priority mail) are checks drawn from our United States bank in United States funds.  Your bank may or may not charge a currency changing fee.
• All Exhedra payment charges will be deducted directly from the Seller's account.
• All options are subject to change in both availability and price.

1. To clearly post in the description of the bid request that the bid request is being posted by Exhedra, and that special rules apply to the bid request, as detailed in this section.
2. To waive their rights to arbitration.

11 TRADEMARKS AND CONFIDENTIAL INFORMATION.

Trademarks. Exhedra may use Seller’s Trademarks in Bid Requests, or related documentation.  Exhedra’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.

12. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY

Infringement Claims. Seller 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.  Seller will pay all settlements or damages awarded against Exhedra, provided that Exhedra (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.

13. LIMITATION OF LIABILITY; INDEMNITY.

IN NO EVENT SHALL EXHEDRA 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 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.

Indemnification by Seller.  Seller 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 Seller, its employees, representatives or agents.

14.  EXPORT.  Seller shall not resell software, equipment, or products purchased in the U.S outside the U.S. without compliance with all applicable export regulations. Seller 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.  Seller 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.

15.  DEFAULT AND TERMINATION.

Default. Should the Seller default, their account may be terminated by Exhedra. 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 Exhedra 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).