Betacoder.com is an online marketplace that enables buyers of professional services (“Employers”) to search for, enter into and manage transactions with providers of professional services (“Freelancers”) (Employers and Freelancers shall both be referred to hereafter as “Registered Users”). The Website contains features that enable Freelancers and Employers to do, among other things, the following:
Employers: Create profiles, post projects, search for Freelancers, communicate with Freelancers,
Negotiate with Freelancers, award projects to Freelancers, manage projects, leave
Feedback for Freelancers, and pay Freelancers.
Freelancers: Create profiles, advertise capabilities, submit quotes, negotiate with Employers, obtain
project awards, invoice, obtain feedback from Employers, and receive payment from
We also provide Registered Users with billing and payment services described in Section 5 ("Billing and Payment Services"), including payment services dispute resolution services described in Section 6 (“Dispute Resolution Services”). Form 1099 filing services as described in Section 7) ("1099 Services"), as well as other services which we may offer to Registered Users from time to time which shall be subject to the terms and conditions of these Terms of Service and the Website ("Other Services") (together, with the Billing and Payment Services, the 1099 Services and the Dispute Resolution Services, referred to collectively as the “Services”). We may add, delete or modify some or all of the Services at any time at our sole discretion with reasonable notice posted in advance on the Website.
A. Eligibility. To access our Services through our Website, you must be a legal entity, or an individual of eighteen (18) years of age or older who can form legally binding contracts. To become a Registered User, you must accept all of the terms and conditions in, and linked to, these Terms of Service. By becoming a Registered User, you agree to:
(1) abide by the Terms of Service and the processes, procedures, and guidelines described throughout the Website;
(2) be financially responsible for your use of the Website and the purchase or delivery of services; and
(3) perform your obligations as specified by any Project Agreement that you accept, unless such obligations are prohibited by law or by the Terms of Service. Guru.com reserves the right, in its sole discretion, to refuse, suspend, or terminate Service to anyone.
B. Registration. To become a Registered User and to access Services you must register for a Betacoder.com account. You agree to provide true, accurate and complete information as prompted by the registration form and all forms you access on the Website, and to update this information to maintain its truthfulness, accuracy and completeness.
C. Accounts and Profiles.
(1) General. Once you have registered with the Website as a Registered User, the website will create your account with Betacoder.com identified by an account number (an “Account”). You may create one or more profiles under your Account.
(2) Username and Password. During registration, you will be asked to choose a username and password for the Account. As a Registered User, you agree and you are entirely responsible to safeguard and maintain the confidentiality of the username and password you use to access this Website. You authorize Betacoder.com to assume that any person using the Website with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized use of the Account.
A. Employer and Freelancer.
(1) Project Agreement. The engagement, contracting and management of a project are between an Employer and a Freelancer. Upon acceptance of a quote, the Employer agrees to purchase, and the Freelancer agrees to deliver, the services and related deliverables in accordance with the following agreements:
(a) the agreement between Employer and Freelancer including the Project Bid, Project Description, and other terms and conditions as communicated between Employer and Freelancer on the Website or otherwise,
(b) these Terms of Service, and
(c) any other content uploaded to the Website by Betacoder.com (collectively, the “Project Agreement”). You agree not to enter into any contractual provisions in conflict with these Terms of Service. Any provision of a Project Agreement in conflict with these Terms of Service is void. Employer is responsible for managing, inspecting, accepting and paying for satisfactory services and deliverables in accordance with the Project Agreement in a timely manner. Freelancer is responsible for the performance and quality of the services in accordance with the Project Agreement in a timely manner. Employer and Freelancer each covenants and agrees to act with good faith and fair dealing in performance of the Project Agreement.
(2) Independence. Employer and Freelancer each acknowledges and agrees that their relationship is that of independent contractors. The Freelancer shall perform services as an independent contractor and nothing in these Terms of Service shall be deemed to create a partnership, joint venture, agency, or employer-employee relationship between Freelancer and Employer or between Betacoder.com and any Employer or Freelancer.
B. Registered Users and Betacoder.com.
(1) General. Betacoder.com is not a party to the dealing, contracting and fulfillment of any Project between an Employer and a Freelancer. Betacoder.com has no control over and does not guarantee the quality, safety or legality of any services performed or deliverables created, advertised, the truth or accuracy of project listings, the qualifications, background, or abilities of Registered Users, the ability of Freelancers to perform services, the ability of Employers to pay for services, or that an Employer or Freelancer can or will actually complete a Project. Betacoder.com is not responsible for and will not control the manner in which a Freelancer operates and is not involved in the hiring, firing, discipline or working conditions of the Freelancer. All rights and obligations for the purchase and sale of services or other deliverables are solely between an Employer and a Freelancer. Betacoder.com will not provide any Freelancer with any materials or tools to complete any Project. Employers and Freelancers must look solely to the other for enforcement and performance of all the rights and obligations arising from Project Agreements and any other terms, conditions, representations, or warranties associated with such dealings.
(2) Third-Party Beneficiary of Project Agreement. Employer and Freelancer each acknowledges and agrees that the value, reputation, and goodwill of the Website depend on their performance of their covenants and agreements as set forth in their Project Agreement. Employer and Freelancer therefore appoint Betacoder.com as a third-party beneficiary of their Project Agreement for purposes of enforcing the obligations owed to, and the benefits conferred on, Betacoder.com by these Terms of Service. Employers and Freelancers further agree that Betacoder.com has the right to take such actions with respect to the Project Agreement or their Accounts, including without limitation, suspension, termination, or any other legal actions, as Betacoder.com in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Website.
(3) Agency. These Terms of Service and any registration for or subsequent use of this Website by any user or Registered User will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and Betacoder.com, except and solely to the extent expressly stated.
(4) Taxes. Registered Users are responsible for payment and reporting of any taxes. Other than in connection with 1099 Services, Betacoder.com is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes, unless otherwise agreed to by both parties pursuant to the terms of any provision of tax services provided to you by Betacoder.com. You agree that you will abide by any and all applicable state and federal tax statutes, regulations and common law. In the event Betacoder.com receives a notice of non-compliance with any such statute, regulation or common law, including, without limitation, an Internal Revenue Service Levy, Betacoder.com will deem such receipt a breach of this section and will suspend your Account until Betacoder.com received an Internal Revenue Service Release.
4. Betacoder.COM FEE
A. Membership Fee. There is only a one-time fee per registrant to Betacoder.com. No monthly fees, processing fee, or payment percentage fee of any kind will be assessed as detailed on the Website.
B. We reserve the right to change membership fees, service fees, processing fees or any other fee that may be charged by Betacoder.com at any time, at the sole discretion of Betacoder.com and upon reasonable notice posted in advance on the Website. No refunds of fees already paid will be given. If we exercise our right to cancel a membership as provided under these Terms of Service, at any time, we will not refund the registration fee already paid.
5. PAYMENT AND BILLING SERVICES
A. General. When a Freelancer completes a Project for an Employer, the Freelancer will complete the electronic invoice form (the "Invoice") and submit it to Betacoder.com via the Betacoder.com Website. A Freelancer must complete and submit an Invoice to Betacoder.com for each and every Project. The Freelancer will provide Betacoder.com with a list of items, including, but not limited to, hours worked, payment required and description of Project(s), to be included on the Invoice ("Invoice Details"). Such Invoice Details will not be final until and unless such Freelancer has confirmed the accuracy of the Invoice Details or waived the right to review the Invoice Details. If a Professional waives his, her or its right to review the Invoice Details, all items in the Invoice Details will be included on the Invoice as received by Betacoder.com. Betacoder.COM ENCOURAGES ALL FREELANCERS TO REVIEW INVOICE DETAILS. Betacoder.com will submit the Invoice to the Employer and the Employer shall submit the payment specified in the Invoice ("Payment") to Betacoder.com.
(2) Disputes. If an Employer reasonably disputes any Invoice, the Employer will pay all undisputed amounts within the time frames specified above and the parties will cooperate to verify any disputed amounts. Any Invoice amounts reasonably disputed by an Employer will not be payable to a Freelancer until such dispute is resolved. Betacoder.com's obligation to pay any Payment (less applicable Service Charge) is expressly conditioned upon: (a) Betacoder.com's receipt of Payment from the applicable Employer and (b) resolution of all outstanding disputes with respect to such Invoice and/or Payment. In addition, if an Employer has submitted Payment to Betacoder.com and such payment amount is then reasonably disputed by such Employer before Betacoder.com has disbursed the disputed amount to you, you acknowledge and agree that Betacoder.com may hold such Payment on behalf of such Employer until the dispute is resolved.
B. SafePay Escrow Services.
(1) General. At an Employer’s request, Betacoder.com will accept an advance payment for a Freelancer’s services ("SafePay Escrow Service"). We will prevent the withdrawal of the funds by the Freelancer until (a) Employer and the Freelancer agree that the funds should be withdrawn or (b) until the Employer and Freelancer have concluded the process of the Dispute Resolution Services (as defined in Section 6). You acknowledge that such funds will be pooled together with other all other monies collected by Betacoder.com.
(2) Notification of Dispute. If, for any reason, a party to a transaction using the SafePay Escrow Service requests Dispute Resolution Services, we will notify both all parties that the matter will be addressed through the Dispute Resolution Services.
C. Withdrawal of Funds.
(1) General. To withdraw funds from your Account, you must request such funds using any of the withdrawal methods available on the Website. Any such requests shall be subject to the conditions and restrictions contained on the Website and in these Terms of Service. Notwithstanding any other provision of these Terms of Service, if Betacoder.com determines in its sole discretion that a Registered User has violated the conditions and restrictions of the Site or Terms of Service, Betacoder.com has the right to refuse to process the withdrawal.
(2) Hold on Funds. Betacoder.com will make funds deposited in your Account generally available for you to use or withdraw. Betacoder.com reserves the right, at its sole discretion, to place a hold on funds for Payments to clear, or if Betacoder.com suspects monies may be subject to charge back or bank reversal or if fraud is suspected. Betacoder.com will release a hold as soon as practical.
D. Legal Relationship.
(1) By using the Payment Services, you expressly acknowledge that (a) Betacoder.com is not acting as a trustee or a fiduciary of Employers or Freelancers and that the Payment Services, including SafePay Escrow Services, are provided to Registered Users administratively; (b) Betacoder.com is not a "financial institution" as defined under the Bank Secrecy Act (BSA) and SafePay Services are payment services rather than a banking services; (c) Betacoder.COM IS NOT A BANK AND ANY PAYMENTS TRANSFERRED THROUGH OR HELD BY Betacoder.COM ARE NOT INSURED DEPOSITS AND ARE SUBJECT TO DEFAULT.
E. Miscellaneous Payment Terms.
(1) Authorized Payments are Final. Your use of the Payment Service constitutes your agreement to pay for any amounts which you authorize us to charge against your Account and, as appropriate, your credit card, bank Account, or PayPal. Such payments, once authorized, are final.
(2) Fraudulent Transactions; Erroneous or Duplicate Transactions; Charge Backs. Betacoder.com reserves the right to seek reimbursement from you, and you will reimburse Betacoder.com, if Betacoder.com discovers a fraudulent transaction, erroneous or duplicate transaction, or if Betacoder.com receives a charge back or reversal from any Employer’s Credit Card Company, bank, or PayPal for any reason. You agree to and acknowledge Betacoder.com’s right to investigate any and all transactions for fraud. Further, you agree to cooperate with any reasonable requests made by Betacoder.com in an effort to investigate fraud. You agree that Betacoder.com has the right to obtain such reimbursement by charging your Account, deducting amounts from future payments or withdrawals, charging your credit card or any bank account associated with your Account, or obtaining reimbursement from you by any other lawful means, including using a third party collection agency. Failure to pay for reimbursements of a charge back or a reversal of payment is cause for termination of your Account.
(3) Currency. The Payment Service operates in US Dollars and therefore Betacoder.com is not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than US Dollars, nor is Betacoder.com responsible for currency fluctuations that occur when receiving or sending payment via wire transfer, check or automated clearinghouse to and from your Account.
(4) Exclusivity and Non-Circumvention. Employers agree to use the SafePay Service or SafePay Escrow Services to make all payments to Freelancers, whether first-time, repeat, or follow-on. You also agree not to take any action directly or indirectly to circumvent the SafePay Service or any associated fees. As a Freelancer, you agree to use SafePay Service or SafePay Escrow Services to receive all payments from Employers identified through the Website, whether first-time, repeat, or follow-on. Additionally, you agree not to circumvent the SafePay Service or any associated fees.
(5) Notification. As an Employer, you agree to notify Betacoder.com immediately if your Freelancer solicits payment from you outside the Website. As a Freelancer, you agree to notify Betacoder.com immediately if your Employer seeks to pay you outside the Website. If you are aware of a breach of the foregoing prohibitions, or any potential circumvention of the SafePay Services or SafePay Escrow Services, please submit a confidential report to Betacoder.com by sending an email to email@example.com.
(6) Agreement to Pay. If, for any reason, Betacoder.com does not receive payment for any amounts that you have authorized to be paid through your use of the Payment Service, you agree to pay such amount immediately upon demand by Betacoder.com. You also agree to pay any interest charges, attorneys' fees and other costs of collection incurred by Betacoder.com in collecting from you the authorized but unpaid amount. In such case, Betacoder.com may, at its option, stop processing any further payments made by you and apply any amounts then held by Betacoder.com on your behalf toward any deficiencies, losses or costs that we have incurred as a result of your use of the Payment Service. We may also make appropriate reports to credit reporting agencies, financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
6. DISPUTE SERVICES
A. Eligibility. Betacoder.com offers dispute resolution services ("Dispute Resolution Services") only to those Registered Users that have elected to use the SafePay Escrow Service and who are engaged in a dispute over a Project that is (i) pursuant to a project posting by an Employer through the Website, (ii) pursuant to a bid for by a Freelancer through the Website for such job posting and (iii) pursuant to an acceptance through the Website by the Employer for such bid.
(1) Mediation. In any dispute between Registered Users relating to a Project that is eligible for Dispute Resolution Services, you agree to mediate such dispute in good faith before Betacoder.com for a period of twenty (20) business days. Such twenty business day period shall be deemed to have begun the day that either party requests Dispute Resolution Services through the Website. If the result of such mediation is acceptable to both parties in a dispute, you agree to indicate your approval of such mediation through the Web Site and Betacoder.com will disburse funds in accordance with the results of such mediation. If you are dissatisfied with the progress, or if twenty (20) business days have lapsed since you have notified Betacoder.com of a dispute between you and a Professional, you agree to submit your dispute to binding arbitration as further set forth below.
(2) Arbitration. In any dispute between an Employer and a Freelancer which cannot be resolved through mediation, you expressly agree to and acknowledge that Betacoder.com or a third party chosen by Betacoder.com will arbitrate the dispute in accordance with these Terms of Services and the Website.
(a) You acknowledge and agree that Betacoder.com will construe any Project Agreement based on the transaction’s course of dealing and common industry practices. Specifically, in rendering its decision, the arbitrator shall only be obligated to consider the following: (i) the Project Agreement, (ii) the parties' course of dealings, as evidenced by activity on or communications through the Website, (iii) the Project itself and (iv) any information or communication that the Employer and the Freelancer agree should be considered.
(c) You agree that the decision of Betacoder.com, acting as an arbitrator, shall be final, binding, and not subject to appeal. Accordingly, within a reasonable time after we have rendered a decision, we will disburse funds from our escrow Account in accordance with the arbitrator’s decision.
C. Communication. You agree and acknowledge that (1) Betacoder.com will use the e-mail address corresponding with your Account ID Number registered at the time a dispute arises to notify and communicate with you with regard to any dispute and (2) you are solely responsible for the receipt of any notification or communication sent by Betacoder.com using the e-mail address corresponding with your Account ID Number registered at the time a dispute arises.
D. Acknowledgements. You agree and acknowledge that (1) Betacoder.com is not providing legal services to you or to a Professional, (2) Betacoder.com will not advise you regarding any legal matters and (3) if you desire to have legal counsel, you will seek independent legal counsel licensed to practice law in your jurisdiction and not rely on Betacoder.com for any such counsel. You agree to indemnify and hold harmless Betacoder.com and any of our affiliates against any damages or liability you may suffer as a result of using the Dispute Resolution Services. If you do not agree to use this Dispute Resolution Services under these terms, you should not elect to use the SafePay Escrow Services.
8. TERM; TERMINATION AND SUSPENSION
A. These Terms of Service shall become effective as your contractual agreement upon your use of the Website, and shall continue until your Account is terminated by you or Betacoder.com as provided for under the terms of this section.
B. Unless otherwise agreed to in writing between the parties, either party may terminate the contractual agreement represented by these Terms of Service at any time upon notice to the other party. In such event, your Account is automatically terminated and (1) Betacoder.com shall continue to perform those services necessary to complete any open transaction between you and another Registered User; and (2) you shall continue to be obligated to pay any amounts accrued but unpaid as of the date of termination to Betacoder.com for any service and to any Freelancer for any services.
C. Any termination of an Account will automatically lead to the termination of all related Profiles.
D. Without limiting our other remedies, we may issue a warning, or temporarily suspend, indefinitely suspend or terminate your Account or a Project, and refuse to provide any or all services to you if: (1) you breach the letter or spirit of any terms and conditions of these Terms of Service or the linked policies and information incorporated herein by reference, including our written policies and procedures posted on the Website; (2) we are unable to verify or authenticate any information you provide to us; or (3) we believe in our sole discretion that your actions may cause legal liability for you, our Registered Users or for Betacoder.com or are contrary to the interests of the Website. Once indefinitely suspended or terminated, you must not continue to use the Website under the same Account, a different Account, or reregister under a new Account.
E. In addition, violations of these Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
F. Without limiting our other remedies, to the extent you engage in actions or activities which circumvent the Payment Services or otherwise reduce fees owed Betacoder.com under these Terms of Service, you must pay Betacoder.com for all fees owed to Betacoder.com and reimburse Betacoder.com for all losses and costs and reasonable expenses (including attorney fees) related to investigating such breach and collecting such fees.
G. When your Account is terminated for any reason, you may no longer have access to data, messages, files and other material you keep on the Site. The material may be deleted along with all your previous posts and proposals.
9. PRIVACY AND CONFIDENTIALITY.
10. INTELLECTUAL PROPERTY.
A. Betacoder.com Content. Your use of the Website and the services provided therein and thereby is governed by the terms of these Terms of Service and the Betacoder.com IP Policy. It is your responsibility to review the Betacoder.com IP Policy, which is incorporated by reference, and we suggest that you review the IP Policy and print a copy for yourself. The IP Policy is posted on the Website and may be updated from time to time.
B. Registered User Content.
(1) You are solely responsible for information posted on our Website, including but not limited to (a) any audio, video or photographic content (collectively, "Multimedia Content"), (b) any posting or listing made in any public message area, through any email feature or through Betacoder.com's feedback feature (collectively, "Non-Multimedia Content") and (c) any other content of a personal nature including but not limited to your resume, biography, work history and work product produced for another Registered User including Companies ("Personal Content"). You retain ownership of all Multimedia Content and Personal Content, subject to the licenses granted herein.
(2) You hereby assign to Betacoder.com your rights in any Non-Multimedia Content. You grant us a non-exclusive, worldwide, perpetual, royalty free, irrevocable right to exercise all copyright and publicity rights with respect to the Multimedia Content and to use such Multimedia Content for the purpose of advertising and publicizing Betacoder.com products and services and you grant us a non-exclusive, worldwide, perpetual, royalty free, irrevocable right to use the Personal Content for the purpose of providing Services.
(3) Your information must not: (a) infringe any third party's rights, including but not limited to intellectual property, publicity or privacy; (b) be defamatory, trade libelous, threatening or harassing; nor (c) be obscene, indecent or contain pornography.
(4) We do not endorse any information posted by Registered Users and we are not liable for any such information posted on our site, including but not limited to any information posted about you. We reserve the right to take any action, in our sole discretion, with respect to information posted on our site which we believe is inappropriate, including but not limited to termination of your Account. However, we cannot, nor do we, control the information provided by you or other Registered Users or other content providers which is made available through our system.
C. Removal of Content for which Copyright Infringement Is Claimed.
(1) Pursuant to 17 USC. § 512 as amended by Title II of the Digital Millennium Copyright Act, Betacoder.com has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. If you believe your copyrights are being infringed by a User of the Website.
(2) The information requested by the Notice of Infringement form substantively complies with the safe harbor provisions of the Digital Millennium Copyright Act, 17 USC. § 512(c)(3)(A), which provides that a notification of claimed infringement must be a written communication provided to the designated agent that includes substantially the following:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online Website is covered by a single notification, a representative list of such works at that Site.
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Freelancer to locate the material.
(d) Information reasonably sufficient to permit the Freelancer to contact the complaining party such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
(e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(g) Notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances from which infringing activity is apparent.
(3) Additionally, you are required to provide a Notice of Infringement form each time you wish to report alleged acts of infringement and fax it to the number provided above.
11. REPRESENTATIONS, DISCLAIMERS, LIMITATIONS AND EXCLUSIONS
A. Registered User Representations and Warranties. All Registered Users represent, warrant, and agree:
(1) Not to grant access to an Account only to users authorized to act on behalf of the Registered User and only in accordance with these Terms of Service.
(2) To be fully responsible and liable for any action of any user who uses your Account.
(3) Not to use your Account, username, or password of another Registered User that you are not expressly authorized to use.
B. Warranty Disclaimer. THE SERVICES PROVIDED BY BETACODER.COM OR OUR THIRD-PARTY SERVICE PROVIDERS ARE PROVIDED "AS IS," AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEBSITE BY ANY THIRD PARTY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING LIMITATIONS ON IMPLIED WARRANTIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
C. Limitation of Liability. IN NO EVENT SHALL WE OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER REGISTERED USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SITE SERVICES PROVIDED UNDER THESE TERMS OF SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF: (A) $100 OR (B) THE AGGREGATE AMOUNT OF MONIES ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
D. General Release. If you have a dispute with another Registered User, you release Betacoder.com (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
E. State Specific Release. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
F. Indemnity. You agree to defend, hold harmless and indemnify Betacoder.com from and against any and all losses, costs, expenses, damages or other liabilities incurred by Betacoder.com from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against Betacoder.com: (1) in connection with your use of the Site Services including any payment obligations incurred through use of the Payment Services; or (2) resulting from: (a) your use of the Website (b) your decision to supply credit information via the Website, including personal financial information; (c) your decision to submit postings and accept offers from other Registered Users; (d) any breach of contract or other claims made by Registered Users with which you conducted business through the Website; (e) your breach of any provision of these Terms of Service; (f) any liability arising from the tax treatment of payments or any portion thereof; (g) any negligent or intentional wrongdoing by any Registered User; (h) any act or omission of yours with respect to the payment of fees to any Freelancer; (i) your dispute of or failure to pay any Invoice or any other Payment; or (j) your obligations to a Freelancer. Any such indemnification shall be conditioned on our: (i) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (ii) cooperating with you in the defense or settlement thereof; and (iii) allowing you to control such defense or settlement. We shall be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.
G. Links. The Web Site may contain links to third-party web sites not under the control or operation of Betacoder.com. When we provide links, we do so only as a convenience and do not endorse and are not responsible for the content of any linked site or any link contained in a linked site.
H. Data. You are responsible for creation, storage, and backup of your business records. These Terms of Service and any registration for or subsequent use of this Website will not be construed as creating any responsibility on Betacoder.com's part to store, backup, retain, or grant access to any information or data for any period.
12. MISCELLANEOUS TERMS AND CONDITIONS
A. Compliance with Law. You are responsible for compliance with applicable U.S. state, U.S. federal and international laws, regulation and treaties, keeping in mind that access to the contents of this Website may not be legal for or by certain persons or in certain countries.
B. Modification and Waiver. Betacoder.com will not be considered to have modified or waived any of our rights or remedies under these Terms of Service unless the modification or waiver is in writing and signed by an authorized representative of Betacoder.com. No delay or omission by Betacoder.com in exercising its rights or remedies will impair its rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
C. Severability. If any part of these Terms of Service is held to be unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect.
D. Assignment or Transfer. You will not transfer, assign or delegate your rights or obligations (including your Account) under these Terms of Service to anyone without the express written permission of Betacoder.com, and any attempt to do so will be null and void. Betacoder.com may assign these Terms of Service in its sole discretion.
E. State Specific Legal Notice. Pursuant to California Civil Code Section 1789.3 and California Business and Professions Code Section 17538, residents of California are hereby advised of the following: Betacoder.com, located in Mountain View, California, is the provider of the electronic commercial service on this site. Registered Users are notified in advance regarding any applicable service charges. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in California may be contacted. Upon your request, you may have this Agreement sent to you by email. Please feel free to contact Betacoder.com to resolve a complaint regarding any aspect of service relating to this site by writing to the above address, or contact us at firstname.lastname@example.org.
F. Force Majeure. Except for the payment of fees to Betacoder.com, neither of the parties to these Terms of Service shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
G. Notice. All notices required or permitted to be given under these Terms of Service, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by pre-paid telex, telefax or telegram, or mailed first-class, postage pre-paid, by registered or certified mail (notices sent by telex or telefax, or telegram, shall be deemed to have been given on the date sent; those mailed shall be deemed to have been given ten (10) business days after mailing) to the addresses set forth below or to such other address as any party shall designate by notice in writing.
If to Betacoder.com:
Attention: Mike Scott
9708 Melrose Blvd., Suite 110
Mountain View, CA 94041
If to Registered User:
To the address associated with Registered User's access or login information.
H. Headings and Labels. The boldface paragraph headings in these Terms of Service are included for ease of reference only and have no binding effect.
I. Integration. These Terms of Service and all documents referenced in these Terms of Service (including the policies listed and available by hyperlink) comprise the entire agreement between you and Betacoder.com with respect to the use of this Website and supersede all prior agreements between the parties regarding the subject matter contained herein as well as any conflicting or inconsistent terms in any Website that link to or are linked from this Site.
J. Survival. Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 will survive any termination of these Terms of Service for any reason.