Fixed Price

If a Client and a Developer enter into a Fixed-Price Contract, these Fixed-Price Instructions  apply. These Instructions govern Fixed Price Contracts. If you have a Fixed-Price Contract and wish to make or receive a miscellaneous or bonus payment, those activities are governed by the Hourly, Bonus, and Expense Payment Agreement.
To the extent permitted by applicable law, we may modify these Instructions without prior notice to you, and any revisions to these Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
These Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these  Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These  Instructions do not apply to Hourly Contracts.
1. DIGITAL SIGNATURE
By clicking to fund (a “Funding Approval”) or to accept a Fixed-Price Contract, Client and Developer are deemed to have executed these  Instructions electronically, effective on the date Developer clicks to accept the engagement, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the “E-Sign Act“). Doing so constitutes an acknowledgment that you are able to electronically receive, download, and print these  Instructions. All references to the initial Funding Approval and any additional Funding Approval for a Fixed-Price Contract.
2. RELEASE AND DELIVERY OF AMOUNTS
Client and Developer irrevocably authorize and instruct OptimHire Inc. (“OptimHire“) to release applicable portions of the Fixed Price Amount (each portion, a “Release”) to their Developer Account or Client Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the applicable Account in accordance with Developer’s or Client’s instructions, as applicable, these Instructions, and the other Terms of Service.
2.1 RELEASE CONDITIONS
As used in these Instructions, “Release Condition” means any of the following:
  1. Client clicks to release funds to Developer.
  2. Client does not take any action for 14 days from the date of a Developer’s Release request, in which case Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release to Developer the amount associated with to the applicable milestone in connection with such Release request.
  3. Developer cancels the contract before a milestone payment has been released to Developer, in which case the funds are to be returned to the Client.
  4. Client and Developer have submitted joint written instructions for a Release to either Developer Account or Client Account, as applicable.
  5. Client and Developer agree to close the contract without release of funds, in which case the funds are to be returned to the Client.
  6. Client or Developer has failed to make its Arbitration payment or paid its fair share of the Arbitration costs pursuant to the Dispute Assistance Program, in which case the funds are released to the Party that has made its Arbitration Payment.
  7. Both Client and Developer have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Assistance Program, in which case the funds are released to the Client.
  8. Client or Developer has failed timely to respond to an OptimHire Dispute Assistance notification as required by the Dispute Assistance Program, in which case the funds are released to the User that has participated.
  9. Client or Developer otherwise has failed to comply with the Dispute Assistance Program, in which case the funds are to be released to the User that has complied with the Dispute Assistance Program.
  10. Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program, in which case the funds will be released in accordance with such award.
  11. Issuance of the final order of a court of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
  12. We believe, in our sole discretion, that fraud, an illegal act, or a violation of OptimHire’s Terms of Service has been committed or is being committed or attempted, in which case Client and Developer irrevocably authorize and instruct OptimHire to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
3. INSTRUCTIONS IRREVOCABLE
On the occurrence of a Release Condition, Client and Developer are deemed to and hereby agree that the instruction to OptimHire and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to OptimHire and its wholly owned subsidiaries to pay a Developer is irrevocable. Such instruction is Client’s authorization to transfer funds to Developer from the Client Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Developer, OptimHire will transfer funds to the Developer and that OptimHire, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once OptimHire or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
4. DORMANT ENGAGEMENTS
To be fair to Clients and Developers, OptimHire has a procedure for Fixed-Price Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Fixed-Price Funding, Fixed-Price Release, Fixed-Price Refunds, Funding requests, Release requests, requests to close the Fixed-Price Contract, Status Report submittals, or actions under the Fixed Price Dispute Assistance Program.
A “Dormant Engagement” is a Fixed-Price Contract that has a Fixed-Price Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Engagements are subject to the following rules:
  1. OptimHire will notify Client when the Fixed-Price Contract becomes Dormant (“Dormant Date”).
  2. If no activity other than Release requests has occurred within 7 days after the Dormant Date, OptimHire will notify the Developer that the Fixed-Price Contract is Dormant.
  3. If neither Developer nor Client take any action for 7 days after the Dormant Date, Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release funds to Client.
  4. If Developer submits a Release request and client does not take any action for 14 days from the date of the Release request, Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release to Developer the amount related to the milestone with Release request.
  5. All funds released to Developer under this Section, Dormant Engagements, will be subject to the applicable Service Fees.
5. REFUNDS AND CANCELLATIONS
Client and Developer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in, Client or Developer can cancel the contract at any time by clicking to close the contract. If funds are held, refunds and cancellations must be initiated by Client or Developer by following the steps below.
5.1 CANCELLATION BY Developer
If Developer wants to cancel a contract with funds held, Developer must click to close the contract. When Developer clicks to close the contract, Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release to Client all  funds associated with the contract.
5.2 CANCELLATION BY CLIENT
If Client wants to cancel a contract with funds held, Client must click to close the contract. Developer must either click to approve or dispute the Client’s cancellation within 7 days. If Developer approves the cancellation, Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release to Client all funds associated with the contract. If Developer is using the Site on a mobile device and do not have the ability to approve or dispute the cancellation with a click on the mobile website or application, Developer must dispute the Client’s cancellation via support ticket within 7 days. If Developer takes no action within 7 days from the date notification of the cancellation is sent to Developer, Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release to Client all funds associated with the contract. If Developer disputes the cancellation, Developer and Client will be offered OptimHire Dispute Assistance (as defined in Section 6).
6. DISPUTE ASSISTANCE PROGRAM
If Client and Developer fail to come to a mutual resolution by way of the Refund and Cancellation process as stated in Section 5, OptimHire provides this Dispute Assistance Program as a mechanism to resolve the Dispute.
6.1 DEFINITIONS AND KEY DATES
  1. “Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 6.
  2. “Arbitration Payment” means Client’s or Developer’s applicable portion of the costs of Arbitration as more particularly described in this Section 6.
  3. “Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the Site or via support ticket with OptimHire.
  4. “Contract Room” means the contract room on the Site for the particular Fixed-Price Contract, including the contract terms, messages and files, and milestones and payments.
  5. “Dispute” means a dispute between a Client and Developer concerning a Fixed-Price Contract and covered by this Dispute Assistance Program.
  6. “Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.
  7. “Dispute Assistance Program” means the Dispute assistance program set forth in this Section 6.
  8. “OptimHire Dispute Assistance” means the Dispute assistance provided by OptimHire as set forth in this Section 6.
6.2 AVAILABILITY OF OptimHire DISPUTE ASSISTANCE
Dispute Assistance is only available (i) after initial funding of the Fixed Price Account associated with the Fixed-Price Contract, and (ii) prior to the Dispute Assistance Deadline. Dispute Assistance is not available to either the Developer or the Client via the Site after the Dispute Assistance Deadline.
6.3 NON-BINDING ASSISTANCE
OptimHire will first attempt to assist Client and Developer by reviewing the Dispute and proposing a mutual, non-binding resolution.
  • The OptimHire Disputes team will notify Client and Developer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
  • If both Client and Developer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
  • The proposed resolution is non-binding; Client and Developer can choose whether or not to agree to it. If Client and Developer agree in writing to the proposed resolution, Client and Developer agree that OptimHire is authorized and irrevocably instructed to immediately release funds in accordance with the proposed resolution.
  • If Client or Developer rejects OptimHire’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and Developer do not choose to arbitrate, Developer and Client agree that OptimHire is authorized and irrevocably instructed to immediately release to Client all funds held in.
  • If Client or Developer chooses to arbitrate by notifying OptimHire via support ticket of their intent to arbitrate, OptimHire will notify both Client and Developer via ticket that they must make the Arbitration Payment within 5 business days of the notice (the “First Arbitration Notice“). If both parties make the Arbitration Payment (including after initial notice of non-payment), then OptimHire will deliver instructions for initiating Arbitration.
  • If Client or Developer does not make the Arbitration Payment within 5 business days of the First Arbitration Notice, Developer and Client will be deemed to have irrevocably authorized and instructed OptimHire to, and OptimHire  will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Account. If no funds remain, OptimHire will close the Dispute.
  • If Client and Developer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Developer will be deemed to have authorized and instructed OptimHire to, and OptimHire will, release the disputed funds to Client, to the extent that any disputed funds remain in the Account, if no funds remain OptimHire will close the Dispute.
6.4 ARBITRATION FOR A FIXED-PRICE CONTRACT
Except for Fixed-Price Contracts where the Client is an Enterprise Client (defined in the Fee and ACH Authorization Agreement), Developer and Client each has the right to demand Arbitration of a Fixed-Price Contract before the Arbitration Limitations Date if the Fixed-Price associated with the Fixed-Price Contract has been funded at least once. If either Client or Developer demands Arbitration in accordance with these Instructions and you are not the party that requested Arbitration, you agree to submit to the Arbitration and pay your share of the Arbitration fees detailed below. In any Arbitration, each of you and the other Member is a “Dispute Party,” and collectively you are the “Dispute Parties.”
Any such Arbitration will be conducted by a neutral third-party Arbitration service: the American Arbitration Association (the “AAA”).The Arbitration rules and fees for each are set out in Appendix A to these Instructions. By default, Arbitration will be conducted by AAA unless OptimHire chooses another Arbitration service.
6.5 FILING THE CASE WITH THE ARBITRATOR
When a User demands Arbitration (the “Arbitration Plaintiff”), or when the circumstances dictate that OptimHire notify a User of its right to file for Arbitration as described above, OptimHire will provide the User with instructions on initiating the Arbitration. After the parties have initiated the Arbitration, OptimHire will provide the arbitrator with supporting documentation including but not limited to the documents submitted to OptimHire during the dispute resolution process, information available via the Site, and access to the Site.
If the Arbitration Plaintiff makes the Arbitration Payment, OptimHire will contact the other party (“Arbitration Respondent”) to request that the Arbitration Respondent pay its portion of the Arbitration fees as well. If the Arbitration Respondent fails to make the Arbitration Payment and submit to such Arbitration within 5 business days after the First Arbitration Notice, OptimHire will suspend the Arbitration Respondent’s account, and both parties will be deemed to have irrevocably authorized and instructed OptimHire to, and OptimHire will, release the funds sought by the Arbitration Plaintiff in the demand for Arbitration to the Arbitration Plaintiff, to the extent such funds remain in the Fixed-Price  Account. If no funds remain in the Fixed-Price Account, OptimHire will close the Dispute.
If both parties pay their portion of the Arbitration fees, OptimHire will instruct the parties on the process for initiating the Arbitration with the Arbitration service provider. After the parties have initiated the Arbitration, OptimHire will provide the arbitrator with relevant documentation, including information collected in the informal dispute process and contents of the Contract Room.
6.6 AUTHORIZATION TO COLLECT ARBITRATION FEES
When you electronically authorize payment of the invoice for the Arbitration Payment as delivered to you by OptimHire by email, you irrevocably authorize and instruct (i) OptimHire or its Affiliates, as your agent, to charge your Payment Method for the amount of the payment for credit to your Account; and (ii) OptimHire, as agent, to immediately release that amount from your  Account and pay it to OptimHire. If OptimHire or its Affiliates cannot collect sufficient funds to fulfill the for any reason, OptimHire has no obligation with respect to making the payment to OptimHire on your behalf, and you will be considered as not having paid your portion of the Arbitration fees as required by this Section 6.
6.7 LIMITATIONS PERIOD FOR ARBITRATIONS
If both Developer and Client fail to demand binding Arbitration for an unresolved Dispute by the Arbitration Limitations Date, then Client and Developer will be deemed to have irrevocably authorized and instructed OptimHire to, and OptimHire will, release all funds in the Fixed-Price Account to Client.
6.8 ARBITRATION AWARD
You agree that the arbitrator is authorized to decide the Dispute within its discretion. You agree that the arbitrator’s award is final, that it may be entered in and enforced by any court of competent jurisdiction, and that if the arbitrator delivers notice of any award to OptimHire, then OptimHire and OptimHire have the right to treat such notice as conclusive and act in reliance thereon.
6.9 SERVICE FEES FOR FUNDS RELEASED FOLLOWING DISPUTE ASSISTANCE
All Funds released under this program are subject to the normal Service Fees associated with Accounts, as detailed in the User Agreement and applicable Instructions.
7. NOTICES
All notices to a User required by these Instructions will be made via email sent by OptimHire to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with OptimHire, for checking their email and for responding to notices sent by OptimHire to the User’s registered email address.
8. COOPERATION WITH THE DISPUTE ASSISTANCE PROGRAM
All claims, disputes or other disagreements between you and another User that are covered by the Dispute Assistance Program must be resolved in accordance with the terms in the Dispute Assistance Program. All claims filed or brought contrary to the Dispute Assistance Program will be considered improperly filed, and OptimHire will have the right to take any other action, including suspension or termination of your Account, and any other legal action as OptimHire deems appropriate in its sole discretion.
9. ABUSE
OptimHire, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if OptimHire believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service.
APPENDIX A
RULES AND FEES FOR ARBITRATIONS CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION
This Appendix A summarizes certain pertinent contractual terms that American Arbitration Association (the “AAA”) has agreed to in providing arbitration services to Clients and Developers who choose the AAA as their arbitrator under the Fixed-Price Instructions. The AAA is solely a third-party arbitration service provider. OptimHire and our affiliates have no direct or indirect affiliate, partnership, joint venture, ownership or control relationship with or interest in the AAA. OptimHire and our Affiliates assume no responsibility or liability for the services of the AAA.
APPOINTMENT OF THE ARBITRATOR
All Arbitrations by the AAA are conducted by a single arbitrator.
The AAA will provide the parties the opportunity to participate in arbitrator selection through a strike-and-rank process of pre-qualified arbitrators.
  1. Each party will be provided with an identical list of five potential arbitrators and may have up to three calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within five calendar days, all persons named therein will be deemed acceptable.
  2. From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.
  3. Any arbitrator will be impartial and independent and will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.
  4. Neither OptimHire nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration. Notwithstanding the above, OptimHire and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site, and the Contract Room, and the information contained therein, associated with the Fixed-Price Contract in Dispute.
RULES OF THE PROCEEDINGS
  1. The amount at issue in any claims or counterclaims relating to a Fixed-Price Contract will be limited to the sum still held and the sum previously released from the Fixed-Price Contract.
  2. The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within three business days of being notified that the case has been filed with the AAA. The Arbitration Plaintiff will post the Initial Statement to the Contract Room.
  3. The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within three business days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Contract Room.
  4. Either party may elect to use their dispute notice form or dispute response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.
  5. All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Contract Room contents at the time the Dispute was submitted to the OptimHire Dispute resolution process. Any communication taking place outside the Contract Room must have been posted to the Contract Room within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Contract Room contents and material submitted to initiate the Arbitration. The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
  6. The language of the Arbitration will be English.
  7. At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
  8. The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.
  9. Communications by either party to the arbitrator will be shared with all parties.
  10. All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.
  11. Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration. The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.
THE AWARD
The AAA will provide OptimHire and the parties with a written award promptly upon the conclusion of the Arbitration, and in no event later than 14 calendar days after conclusion of the Arbitration. At the arbitrator’s sole discretion, the arbitrator may provide, but is not required to provide, written reasons for the Award to the parties.
FEES
The fee for Arbitrations by the AAA is $875, regardless of the amount at issue.
Each of the Dispute Parties and OptimHire will share the cost equally ($291 each).
Client and Developer will solely bear and pay any other costs it incurs related to the Arbitration.