Terms of Service
Last Updated – Effective Date: August 8, 2017
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“TERMS”) CAREFULLY. BY ACCESSING, BROWSING OR USING THE SITEUPTURN (“SITEUPTURN”) WEBSITE AVAILABLE AT SITEUPTURN.COM OR ANY WEBSITE WITH LINKS TO THIS AGREEMENT (THE “WEBSITE”) IN ANY WAY OR CLICKING AN “I ACCEPT” OR SIMILAR BUTTON, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SITEUPTURN, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS ON BEHALF OF YOURSELF OR THE BUSINESS YOU WORK FOR, AND TO BIND THAT BUSINESS TO THESE TERMS.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE MOST DISPUTES. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
BY ACCESSING OUR WEBSITE OR USING OUR SERVICES (DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE OUR WEBSITE AND/OR OUR SERVICES.
These Terms of Service (“Terms”) apply when “you”, “your”, or “Client” (including any individual, entity, or organization) access or use the website (collectively, the “Site” and “Properties”) of SiteUpturn LLC (“Company,” “we,” “us,” or “our”), and the services (including our “Website Walkthrough, Analytics Analysis, or Growth Game Plan” Premium Services), content and materials made available via the Site or other applications (collectively, the “Services”). These Terms of Service do not alter in any way the terms or conditions of any other agreement you may have with SiteUpturn for products, services or otherwise.
Terms May Change: Periodically, we may change the terms and conditions in this Agreement, including the amount of our fees. If we do change any of these terms, we’ll provide a new copy of the Terms available at the Website and we’ll update the “Last Updated” date at the top of these Terms. Any work that we’ve already completed or previously initiated for you will continue to be governed by the agreement in effect at the time that you contracted with us. Any such new Terms changes will apply to any future contracts for our services. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Your continued use of the Services following our notice of the amended Terms will confirm your acceptance of the amended Terms. If you do not agree to the amended Terms, you may not continue accessing the website or using the Services.
All questions or comments about the Services should be directed to email@example.com
2. Eligibility: The Services are not targeted towards, nor intended for use by, anyone under the age of 18. By using the Services, you represent and warrant that you: (a) are 18 years of age or older; (b) have not been previously suspended from using the Services or have not been previously banned from any SiteUpturn Properties; and (c) have full power and authority to enter into these Terms and that, in doing so, you will not violate any other agreement to which you are a party; (d) agree to provide true, accurate, current and complete information about yourself (the “Registration Data”); (e) agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete; (f) agree not to use a false identity or false information.
3. Acceptance of Terms: Any work that we do for you (“Client”) is governed by the terms of service that you’re reading now. If you don’t agree to them, we can’t provide you with any services (“Premium Service” or “Premium Service”). This Agreement is a binding contract between you (“Client”) and SiteUpturn LLC. We do not recommend our services for: (i) websites/businesses/people with highly developed internal UX, analytics, and/or growth practices, (ii) websites that do not receive much traffic at the moment, (iii) websites/businesses/people without specific goals (e.g., if you cannot say “we want more people to do X on our site”), (iv) websites/businesses/people pertaining to vices, multi-level marketing, loans, financial services, insurance, or any websites/businesses/people considered obscene or offensive, (v) websites/businesses/people selling mobile apps, software, or plugins, (vi) websites/businesses/people located outside of the U.S. or Canada, (vii) websites/businesses/people dependent on multiple domains and/or subdomains, and (viii) websites/businesses/people utilizing drop-shipping services for their business.
4. Use of SiteUpturn Properties: The Website and the content and information available on the Website (“SiteUpturn Properties”) are protected by copyright laws throughout the world. Unless otherwise specified by SiteUpturn in a separate license, your right to use any SiteUpturn Properties is subject to the Terms.
4.1. Certain Restrictions: The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit SiteUpturn Properties or any portion of SiteUpturn Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other SiteUpturn Properties (including images, text, page layout or form) of SiteUpturn; (c) you shall not use any metatags or other “hidden text” using SiteUpturn’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of SiteUpturn Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access SiteUpturn Properties in order to build a similar or competitive website, application or service; and (g) except as expressly stated herein, no part of SiteUpturn Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to SiteUpturn Properties shall be subject to the Terms. SiteUpturn, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of SiteUpturn Properties terminates the licenses granted by SiteUpturn pursuant to the Terms.
5. Terms of Sale/Order Acceptance: Access to certain services (“Premium Service” or “Premium Service”), are made available for purchase on SiteUpturn’s website (siteupturn.com). Each part of an order for Premium Services that you submit to SiteUpturn constitutes an offer to purchase. Your payment for access to any Premium Service is subject to this Terms of Service and this Agreement, and incorporated herein by this reference.
6. Services: SiteUpturn offers three distinct services (“Premium Services”) for purchase. All Premium Services orders are subject to the “Payment” terms mentioned below. Also, you agree that SiteUpturn is providing you with marketing services and NOT security or risk management services.
Website Walkthrough – In exchange for our fee, we’ll provide you with conversion-focused feedback on either one desktop URL website or one mobile URL website to help improve your business. We will deliver your feedback within ten (10) business days of receiving your completed questionnaire. You’ll receive: (i) a 30 minute video to keep & review at your convenience; (ii) a recommended list of tools to consider as they relate to your website; (iii) a one page summary and list of actionable takeaways to review with your team.
Analytics Analysis – In exchange for our fee, we’ll provide you with detailed analysis of one Google Analytics property for one website. We will deliver your analysis within fifteen (15) business days of receiving your completed questionnaire.You’ll receive: (i) an 88 point high-value audit of one Google Analytics Property; (ii) a list of recommended changes to implement with your Google Analytics Property; (iii) one custom built Google Analytics interactive dashboard tailored to your business; (iv) optional: with your permission and once you’ve signed off on the necessary changes that don’t require development work, non-developer changes will be implemented live.
Growth Game Plan – In exchange for our fee, we’ll provide you with a comprehensive analysis and growth recommendations report for one URL website. We will deliver our report within thirty (30) business days of receiving your filled-out questionnaires: (i) all Analytics Analysis items; (ii) a list of customer interview questions you’ll need to submit to your customers (iii) analysis of the customer interview questions provided they are returned to SiteUpturn within fifteen (15) business days; (iv) an assessment of your e-mail marketing campaigns (access required); (v) Four e-mail marketing template examples to review at your discretion; (vi) scrutiny of your paid advertising/marketing campaigns (access required); (vii) a thorough review of your customers’ transactional data (access required); (viii) a growth playbook report highlighting our findings and the changes we recommend (You can implement the recommendations yourself, work on implementation with outside agencies of your choosing, or if we think there is a fit, work with our team).
For the Analytics Analysis & Growth Game Plan services, we do not revise the written report once delivered and we won’t follow up with further reports. You agree to accept our report “as is. Once the report is delivered, we’ll schedule time to answer questions regarding it. You must gather your comments and questions together into a single package for our review; we don’t provide more than one round of Q&A.
7. Payment Terms: All prices for Premium Services are in United States Dollars (USD). To make a purchase, you must provide a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing SiteUpturn with your credit card number and associated payment information, you hereby authorize SiteUpturn to immediately charge your credit card for all fees and charges due and payable to SiteUpturn hereunder or credit your credit card for any refunds owed and that no additional notice or consent is required. You agree to immediately notify SiteUpturn of any change in your billing address or the credit card used for payment hereunder. SiteUpturn reserves the right at any time to change its prices and billing methods, either immediately upon posting on the SiteUpturn Properties or by e-mail delivery to you.
Website Walkthrough – In exchange for our Website Walkthrough services, you’ll pay four hundred ninety nine dollars ($499) in full as a one-time payment when you agree to these terms.
Analytics Analysis – In exchange for our Analytics Analysis services, you’ll pay eight hundred ninety nine dollars ($899) in full as a one-time payment when you agree to these terms.
Growth Game Plan – In exchange for our Growth Game Plan services, you’ll pay no less than three thousand dollars ($3,000), including 50% of this investment paid to us upfront, when you agree to these terms. The exact dollar amount fees for our Growth Game Plan services will be clarified in our Creative Services Agreement with you.
7.1. Valid Payment Methods: Only valid payment methods acceptable to us, or our designated payment processors, may be used to purchase access to our Premium Services. By submitting your order to purchase our Premium Services, you represent and warrant that you are authorized to use your designated payment method and authorize us, or our designated payment processors, to charge your purchase to that method. If your payment method cannot be verified or is invalid, your order may be suspended or cancelled automatically. You must resolve any problem we, or our designated payment processors, encounter in order to proceed with your order.
7.2. Late Payment: When applicable, if you fail to make payment on an invoice within the payment window required by said invoice (the “Payment Period”), the total payment due on said invoice shall accrue interest in the amount of one percent (1%) of the total outstanding balance per week that the invoice is overdue. In the event that a retainer payment, as described above, is not paid within the Payment Period, SiteUpturn shall have the right to postpone, at no penalty to SiteUpturn, the performance of the services listed in the Agreement until payment is made.
7.3. Refunds (“Refund Policy”): Refund terms vary based on the requested service. SiteUpturn maintains the right to refuse refund requests in accordance with these Terms of Service.
Website Walkthrough – If you’re genuinely dissatisfied with our Website Walkthrough service and provide us with written notice within thirty (30) days of purchase, we’ll refund your payment at our discretion. No refund is available after thirty (30) days of purchase.
To be eligible for a refund, you must make a refund request by emailing our client service team (firstname.lastname@example.org) within thirty (30) days of purchase. Your refund request must: (a) contain the full legal name of your company and company’s website; (b) clearly explain the reason(s) why you’re requesting a refund; (c) clearly explain what benefit(s) you were expecting from this service; and (d) contain a legally binding signature from you the client.
Analytics Analysis – If you’re genuinely dissatisfied with our Analytics Analysis service and provide us with written notice within thirty (30) days of purchase, we’ll refund your payment at our discretion. No refund is available after thirty (30) days of purchase. All refund requests for Analytics Analysis service are subject to a 5% processing fee of the full amount (currently, 5% of $899 or $44.95).
To be eligible for a refund, you must make a refund request by emailing our client service team (email@example.com) within thirty (30) days of purchase. Your refund request must: (a) contain the full legal name of your company and company’s website; (b) clearly explain the reason(s) why you’re requesting a refund; (c) clearly explain what benefit(s) you were expecting from this service; and (d) contain a legally binding signature from you the client.
Growth Game Plan – Refunds will not be granted due to aesthetic or subjective dissatisfaction. Refund requests will be evaluated on a case-by-case basis. Refunds will not be given before sixty (60) calendar days from the date all payments & fees (100% payment of fees) are received by SiteUpturn. If you’re unsatisfied with our Growth Game Plan service, which often takes months to see any results, you’ll need to terminate services and make a refund request by emailing our client service team (firstname.lastname@example.org). All refund requests for Growth Game Plan services are subject to a 15% processing fee of the full amount (currently, 15% of $3,000 or $450).
To be eligible for a refund, you must make a refund request by emailing our client service team (email@example.com) no sooner than sixty (60) calendar days from the date all payments & fees (100% payment of fees) are received by SiteUpturn and within thirty (30) calendar days of SiteUpturn receiving full payment & fees. No refunds are available for refund requests before (60) calendar days from the date of (100% payment of fees) are received by SiteUpturn & after thirty (30) calendar days of SiteUpturn receiving (100% payment of fees). Your refund request must: (a) contain the full legal name of your company and company’s website; (b) clearly explain the reason(s) why you’re requesting a refund; (c) clearly explain what benefit(s) you were expecting from this service; and (d) contain a legally binding signature from you the client.
7.4. All Sales are Final: Other than in connection with our Refund Policy, all sales are final.
7.5. Errors in Charges: In the event of an error that results in an incorrect charge, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any erroneous amount charged. In addition, we may, in lieu of a refund as provided in this paragraph, opt to provide you with a service credit, with a value equal to the amount charged to your payment method.
7.6. Declined Charges: If any payment made by you to SiteUpturn is declined, rejected or otherwise made invalid for any reason without limitation, we shall have the right to charge an additional $49 fee per instance in addition to any other Late Payment charge described above.
7.7. Taxes: You are responsible for any applicable sales or use tax, duties, or other governmental taxes or fees payable in connection with your purchase/ordering our services. If you do not pay such sales or other tax or fee on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such sale, and SiteUpturn reserves the right to collect such taxes or other fees from you at any time.
7.8. Disputes: You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
[13389 Folsom Blvd
Suite 300 – 256]
[Folsom, CA 95630]
9. Order Acceptance Process: If you have placed your order through the Website, then, after SiteUpturn receives your order and/or questionnaire for some services, you will receive an e-mail from SiteUpturn confirming receipt of your order (usually the same business day). If you do not receive an e-mail from SiteUpturn confirming receipt of an order that you placed, then please contact the SiteUpturn Customer Service department at [https://siteupturn.com/contact/] before you attempt to place another order for the same service. Please note that SiteUpturn’s confirmation of receipt of your order does not equate to SiteUpturn’s acceptance of your order. SiteUpturn is not deemed to have accepted any part of your order until the requested service has been delivered and SiteUpturn has sent a service delivery confirmation e-mail.
10. Order Issues: Although it is unlikely that SiteUpturn would refuse to accept an order, SiteUpturn reserves the right to deny any order for any reason, including where the following situations arise: (i) insufficient information or errors in billing, payment, and/or shipping information; (ii) orders that cannot be processed due to erroneous information that you have provided, which includes, but is not limited to incorrect credit card or debit card number, expiration date, security value, or other incorrect information regarding payment types; (iii) suspected fraudulent information; or (iv) delayed delivery of services or unavailability of services.
SiteUpturn may refuse to accept any order if fraudulent activity is suspected. SiteUpturn may refuse to process any subsequent order from a customer who has a history of placing fraudulent orders.
SiteUpturn may refuse any order that is connected with a previous credit card dispute.
11. Order Cancellation: If a service is significantly delayed or becomes unavailable, or if there is an error on the Website pertaining to the order, then SiteUpturn may cancel the order. If this occurs, then SiteUpturn will contact you so that you are aware of the situation.
12. Restrictions on Resale: In order to protect SiteUpturn’s intellectual property rights, any suspected resale of services for personal and/or business profit is strictly prohibited. SiteUpturn will not accept any order that is deemed to possess characteristics of reselling. SiteUpturn reserves the right to cancel any subsequent order from a customer who has been suspected of reselling.
13. User Conduct: As a condition of use, you agree not to use SiteUpturn Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any Third Party) either (a) to take any action or (b) Make Available any Content on or through SiteUpturn Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without SiteUpturn’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of SiteUpturn; (vi) interferes with or attempts to interfere with the proper functioning of SiteUpturn Properties or uses SiteUpturn Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against SiteUpturn Properties, including but not limited to violating or attempting to violate any security features of SiteUpturn Properties, introducing viruses, worms, or similar harmful code into SiteUpturn Properties, or interfering or attempting to interfere with use of SiteUpturn Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” SiteUpturn Properties.
14. SiteUpturn Content: SiteUpturn may, but is not obligated to, monitor or review the Website at any time. Without limiting the foregoing, SiteUpturn shall have the right, in its sole discretion, to remove any content for any reason (or no reason), including if such content violates the Terms or any applicable law. Although SiteUpturn does not generally monitor user activity, if SiteUpturn becomes aware of any possible violations by a user of any provision of the Terms, SiteUpturn reserves the right to investigate such violations, and SiteUpturn may, at its sole discretion, immediately terminate the user’s license to use the SiteUpturn Properties, or change, alter or remove any content, in whole or in part, without prior notice.
15. Questionnaire: All payment reserves a space on our docket and is made before we provide any services to you. In addition, prior to providing any services to you, you must fill out an informational questionnaire. This allows us to better understand your concerns and goals for this project or service request. In some instances, further clarification, including phone calls & additional questionnaire responses, beyond this initial questionnaire might be necessary prior to us providing any services to you.
16. Permissions: Both Analytics Analysis & Growth Game Plan services require necessary access or permissions that can include the following: Google Analytics, Google Search Console, Content Management System (CMS) dashboard, plugins, apps, e-mail software, paid advertising platforms, customer feedback, and any necessary qualitative or quantitative customer data (in accordance with the scope of the project and this Agreement. You agree to provide reasonable access to SiteUpturn in order to access these relevant services, platforms, and software applications. We agree to access only those services, platforms, and software applications deemed necessary to complete our work with you.
17. Development: If development assistance is needed, the specific requirements will be first communicated to you in writing by SiteUpturn and you will be responsible to complete the necessary development work. Failing or refusing to abide to the development assistance requirements can impact both deliverables and the delivery timeframe for these deliverables. SiteUpturn maintains the right to terminate our work with you at SiteUpturn’s discretion in such instances where either intentional or not, you fail or refuse to abide to the written development assistance requirements. You agree that SiteUpturn is not responsible or liable for your development work, any subsequent changes, and any impact to your website that might happen from this development work.
18. Data & Security: You agree to notify SiteUpturn in writing of any breaches of security to your website or any significant safety and/or security issues impacting your business, (whether discovered by you or any applicable Third Parties including, but not limited to, local/state/federal authorities, independent contractors, and software vendors), within a reasonable time period. In addition, if any significant safety and/or security issues are discovered by SiteUpturn or if SiteUpturn is alerted by you or a reputable Third Party of such significant safety and/or security issues; all current and future work for you will cease immediately, SiteUpturn maintains no obligation to return or refund any past or current payments, and SiteUpturn maintains no obligation to fulfill any of your services order, regardless of any work performed to date. SiteUpturn will provide you with written notification that work has ceased if such instances where significant safety or security issues are discovered.
19. Business Hours: SiteUpturn’s business hours are 9am-5pm Pacific Time. We take the following days off: January 01, MLK Day, Memorial Day, July 03, July 04, Labor Day, Thanksgiving, Black Friday, December 24, December 25, December 31. We agree to put in a reasonable effort to reply to anything SiteUpturn-related during business hours, but outside of those times we’re probably going to live our lives and be awesome to our friends and families.
20. Client Delivery: Some instances might require you to provide deliverables to SiteUpturn first (e.g. a questionnaire, account permissions, or development work). These Client deliverables are due at least 7 business days prior to us providing any services to you. Your failure to submit required deliverables may cause delays in delivery with no penalty to SiteUpturn. In the event that we have not received your deliverables according to this Agreement or any request made by us to you otherwise, SiteUpturn may pause all performance under this terms of service until you provide the requested deliverables. Schedule for completion of project(s) or services will be adjusted to reflect your delay at no penalty to SiteUpturn.
21. Delivery Timeframe: SiteUpturn’s Website Walkthrough & Analytics Analysis services are typically delivered within approximately 10 business days, excluding holidays mentioned under “Business Hours.” We’ll be in touch with you within 24 hours from your order placement, to arrange a date you’ll receive your custom analysis. The delivery timeframe for Growth Game Plan services will be thirty (30) business days after all necessary Client deliverables have been received by SiteUpturn, unless specified otherwise by SiteUpturn. Delivery of the Growth Game Plan services shall mean delivery by SiteUpturn of the deliverables as described in the “Services” below and, which can include reports, assessments, screenshot references, usability testing, media, analytics analysis, recommendations, feedback on marketing campaigns, and marketing content. All Delivery Dates are mere estimates and are not guaranteed.
22. Revisions & Changes: “Premium Services” are provided “as is.” You agree to accept our services “as is.” We do not make revisions for our Premium Services. We do not revise any written communication once delivered and we won’t follow up with further reports. For the Analytics Analysis & Growth Game Plan services, once this report is delivered, we’ll schedule time to answer questions regarding each report. You must gather your comments and questions together into a single package for our review; we don’t provide more than one round of Q&A for each service.
23. Point of Contact: You may designate one individual as the point of contact in the questionnaire. You understand and agree that any requests and/or information from an individual that is not the Point of Contact will not be included and SiteUpturn shall not be penalized or held in breach of this terms of service due to the failure to include input from a non-point of contact. SiteUpturn will not be held responsible if you’re not satisfied with any services due to information disseminated to SiteUpturn by any individual other than the point of contact. You understand and expressly agree to a $150 per hour billing rate for non-point of contact communication.
24. Ownership: We retain ownership in the copyright to all reports produced through SiteUpurn services and invite you to share our report internally with other members of your organization on an as-needed basis. We do not, however, grant you permission to modify the report, reproduce it for individuals outside of your company, display or perform it publicly, or distribute it to any Third Party.
25. Performance: SiteUpturn shall make best efforts to produce successful services for you, but SiteUpturn makes no representations, guarantees, or warranties as to the effectiveness or performance of the services delivered. (We make no guarantee or representation whatsoever about the number of leads, sales, conversions, clickthroughs, impressions, or any return on investment resulting from our work with you). Our services may be combined, integrated, or used with Third Party products, software applications, or websites (“Third Party Service”). You acknowledge and agree that you may be required to enter into a separate license agreement with the relevant Third Party owner or licensor for the use of the Third Party Services. In the event of any changes by Third Party Services that materially affect the delivery or performance of SiteUpturn’s services contemplated by this Agreement, SiteUpturn shall provide notice to you and make every effort to work with you to find an acceptable alternative to the services or find a replacement service at the same or similar cost. If such a situation should occur and a suitable alternative or replacement is not found, responsibility and liability is limited to the return of payments received for the specific portion of the services affected. You agree to not unreasonably withhold approval of an alternative.
26. Satisfaction: The obligation of you to make payment to SiteUpturn according to the terms of this terms of service is not conditioned on your satisfaction with the proceeds of any services under this terms of service. You understand and expressly agree that delivery of the services under this terms of service shall obligate you to make payment and payment shall not be withheld due to aesthetic or subjective dissatisfaction.
27. Non-Exclusive: We provide services to a number of clients. You recognize and agree that we may provide services to a number of individuals and organizations, including potential competitors, and are in no way obligated to provide services exclusively to you. SiteUpturn is free to provide services to other parties while working with you, provided that such provision of services to others does not materially interfere with the terms and obligations of this terms of service. You may not hire another service provider to complete the same or similar natured services as SiteUpturn during the terms of service unless agreed to in writing by SiteUpturn in advance.
28. Non-Solicitation: For the duration of the service(s) negotiated in this terms of service and for one (1) year following the termination of this Agreement for any reason, you agree not to directly or indirectly call on, solicit, persuade or attempt to solicit or persuade, or in any way reduce, interfere, or cause to cease any business with any employee, partner, designer, editor, consultant, independent contractor or other client of SiteUpturn that you have become acquainted with as a result, directly or indirectly, of this terms of service. In the event that a Party does solicit, whether as an employee or independent contractor, an employee or independent contractor of the other Party, during or within one (1) year following the termination of this Agreement, the hiring/retaining Party shall pay to the non-hiring/retaining Party a fee equal to fifty percent (50%) of the employee or independent contractor’s annual wage or rate (the “Placement Fee”). The Placement Fee must be paid within fifteen (15) days of the date of such hiring/retention.
29. Confidentiality and Safeguard of Property: You and SiteUpturn acknowledge, that in connection with this terms of service, we may have occasion to receive or review certain confidential or proprietary technical and business information and materials of the other Party. You and SiteUpturn, as well as their agents and employees, respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any Third Party (except as may be required for the performance of services under this terms of service or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, services, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either Party prior to disclosure. SiteUpturn and you will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither SiteUpturn nor you will be responsible for any loss or damage.
30. Promotion & Publicity: Referrals are how we’re able to get work in the future, and we love showing off our major victories. You grant us the perpetual right (but not the obligation) to mention your name (or your company’s name) on our website and in our marketing collateral as an individual/organization that utilized our services. If you submit a testimonial to our website, or through e-mail, we’d love to publish it! You grant us permission to re-publish your testimonial on our website. Additionally, you may publish or disclose information regarding the services contemplated by this terms of service and shall acknowledge the support of SiteUpturn in all such publications. You will not use the name of SiteUpturn in any advertising or publicity without the prior written approval from SiteUpturn.
31. Independent Contractors: The relationship of the Parties under this terms of service is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created by this terms of service or the Parties’ related conduct. Neither Party may assume or create obligations on the other Party’s behalf, and neither Party may take any action that creates the appearance of such authority. SiteUpturn has the sole right to control and direct the means, details, manner, and method by which the services will be completed. SiteUpturn reserves the right to assign SiteUpturn’s performance of this terms of service to another party and other independent contractors to ensure quality and on-time completion. The amount of time devoted to you by SiteUpturn shall be adequate to complete the services, but the particular amount of time may vary from day to day or week to week at SiteUpturn’s discretion. Client may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations will be null and void without SiteUpturn prior written approval.
32. Employment of Others: SiteUpturn reserves the right to employ the services of other independent contractors or service provides without the permission of you in order to complete project(s) or work for you. SiteUpturn shall be responsible for supervision and control of any employee or independent contractors who performs services pursuant to this terms of service. All such persons shall be employees and/or contractors of SiteUpturn and not of you or your organization. Accordingly, SiteUpturn shall be responsible for payment of all taxes including Federal, State, and local taxes arising out of SiteUpturn’s activities in accordance with this terms of service, including by way of illustration but not limitation, Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business license fee as required.
33. Representations and Warranties: SiteUpturn represents and warrants that SiteUpturn has full right to enter into this terms of service and to perform its obligations hereunder and will comply with all applicable Federal, State, and Local Laws, ordinances and regulations. SiteUpturn further represents and warrants that to the best of SiteUpturn’s knowledge, the final services provided by SiteUpturn and SiteUpturn’s subcontractors does not infringe the rights of any party, and use of same in connection with the services will not violate the rights of any Third Parties.
You represent and warrant that you have full right to enter into this terms of service and to perform its obligations hereunder and will comply with all applicable Federal, State, and Local Laws, ordinances and regulations. You additionally represent and warrant that any materials supplied to SiteUpturn for purposes of completion of any services shall not subject SiteUpturn to any liability whatsoever for infringement or otherwise.
34. Indemnification: You hereby release SiteUpturn Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from Third Party websites or your use of SiteUpturn Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
35. Limitation of Liability: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL THE SITEUPTURN PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING AS A RESULT OF COMPANY’S NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SITEUPTURN PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING AS A RESULT OF COMPANY’S ALLEGED NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO SITEUPTURN FOR ACCESS TO OR USE OF THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT SITEUPTURN HAS OFFERED THE SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SITEUPTURN. SITEUPTURN WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
36. Third Party Licenses: You are responsible for obtaining all necessary licenses for Third Party products, unless otherwise agreed upon by the Parties in writing. You shall purchase all applicable licenses for any copyrighted work used in the development of the services. You shall indemnify and hold SiteUpturn harmless from any and all claims, liabilities, costs, losses, damages, or expenses (including attorney fees) arising from any Third Party claim directly relating to your failure to obtain applicable licenses for a copyrighted work.
37. No Third Party Beneficiaries: This contract is only intended to benefit you, the Client, and SiteUpturn, not any Third Party.
38. Third Party Websites: SiteUpturn Properties may contain links to third party websites ( “Third Party Websites”). When you click on a link to a Third Party website, we will not warn you that you have left SiteUpturn Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of SiteUpturn. SiteUpturn is not responsible for any Third Party Websites. SiteUpturn provides these Third Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, or their products or services. You use all links in Third Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any Third Party.
39. Entire Agreement: This Agreement will constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement. The Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. No modification of these Terms will be binding unless in writing and signed by both Parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
40. Severability and Non-Waiver: If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. Any failure by SiteUpturn to require your performance of any provision in this Agreement shall not affect SiteUpturn’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
41. Termination: SiteUpturn reserves the right, without advance notice and in its sole discretion, to terminate your license to use the Premium Services, and to block or prevent your future access to and use of the Premium Services. You may terminate this Agreement with or without cause by giving thirty (30) days written notice to SiteUpturn of such termination. In the event that the services are postponed or terminated at the request of you, SiteUpturn shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this Agreement. If additional payment is due, it shall be payable within thirty (30) days of your written notice of termination. Client shall also pay any expenses incurred by SiteUpturn through the request to terminate and SiteUpturn shall own all rights to the services, unless agreed upon otherwise in writing. You shall assume responsibility for all legal fees necessitated by default in payment. If any legal action is necessary to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorney fees, costs, and expenses.
42. Force Majeure: SiteUpturn shall not be deemed in breach of this Agreement if SiteUpturn is unable to complete the services or any portion thereof by reason of fire, earthquake, labor dispute, act of a public enemy, death, illness, or incapacity of SiteUpturn or any local, state, federal, national or international law, governmental order or regulation, or any other event beyond SiteUpturn control (collectively “Force Majeure Events”). Upon occurrence of any Force Majeure Event, SiteUpturn shall give notice to Client of its inability to perform or of delay in completing services and shall propose revisions to the schedule for completion of the services.
43. Governing Law: This Agreement will be governed by the laws of the State of California. Client and SiteUpturn agree that any claims, legal proceedings, or litigation arising in connection with this Agreement will be brought solely in the courts of the County of Sacramento, and the Parties consent to the jurisdiction of such courts. If any claim of dispute arising out of, or relating to, this Agreement is not settled promptly in the ordinary course of business, the Parties shall seek to resolve such dispute between them, first, by negotiating promptly in good faith. If the Parties are unable to resolve the dispute within twenty (20) business days (or such period as the Parties otherwise agree), then any such dispute shall be resolved by a binding arbitration conducted by a single arbitrator under the rules of the American Arbitration Association at a mutually agreed upon location. The arbitrator must base his or her decision upon this Agreement and applicable law. If any legal action is necessary to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorney fees, costs, and expenses.
44. Electronic Communications: The communications between you and SiteUpturn use electronic means, whether you visit SiteUpturn Properties or send SiteUpturn e-mails, or whether SiteUpturn posts notices on SiteUpturn Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SiteUpturn in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SiteUpturn provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
45. Assignment: In general, you don’t have the right to assign this Agreement to any other individual or business organization. However, you may assign this Agreement to an heir or an organization that acquires all or most of your stock, assets, or business. This Agreement will bind your heirs, assigns, executors and administrators.
46. International Users: This Website can be accessed from countries around the world and may contain references to SiteUpturn Properties and other content that are not available in your country. These references do not imply that SiteUpturn intends to introduce such SiteUpturn Properties or content or services in your country. SiteUpturn Properties are controlled and offered by SiteUpturn from its facilities in the United States of America. SiteUpturn makes no representations that SiteUpturn Properties are appropriate or available for use in other locations outside of the United States of America. Those who access or use SiteUpturn Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
47. Arbitration & Dispute Resolution: PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SITEUPTURN AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SITEUPTURN.
47.1. Binding Arbitration: Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 13 (“User Conduct”) or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and SiteUpturn agree (a) to waive your and SiteUpturn’s respective rights to have any and all Disputes arising from or related to these Terms or the Services, resolved in a court, and (b) to waive your and Company’s respective rights to a jury trial. Instead, you and SiteUpturn agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
47.2. No Class Arbitrations, Class Actions or Representative Actions: You and SiteUpturn agree that any Dispute arising out of or related to these Terms or the Services is personal to you and SiteUpturn and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and SiteUpturn agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and SiteUpturn agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
47.3. Federal Arbitration Act: You and SiteUpturn agree that these Terms affect interstate commerce and that the enforceability of this Section 47 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
47.4. Notice; Informal Dispute Resolution: Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to SiteUpturn should be sent by certified mail or courier to:
[13389 Folsom Blvd
Suite 300 – 256]
[Folsom, CA 95630]
Your notice must include (a) your name, postal address, telephone number, the e-mail address you use or used for your SiteUpturn order and, if different, an e-mail address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically and will include (x) our name, postal address, telephone number and an e-mail address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. After the Notice is received, you and SiteUpturn may attempt to resolve the claim or dispute informally. If you and SiteUpturn do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
47.5. Process: Except for Disputes arising out of or related to a violation of Section 13 (“User Conduct”) or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Company agree that any Dispute must be commenced or filed by you or Company within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Company will no longer have the right to assert such claim regarding the Dispute). You and Company agree that (a) any arbitration will occur in Sacramento County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the Sacramento County, California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
47.6. Authority of Arbitrator: As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
47.7. Rules of JAMS: The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason
47.8. Severability: If any term, clause or provision of this Section 47 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 47 will remain valid and enforceable. Further, the waivers set forth in Section 47.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
47.9. Opt-Out Right: You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 47 by writing to:
[13389 Folsom Blvd
Suite 300 – 256]
[Folsom, CA 95630]
In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 43 (“Governing Law”).
48. Export Control: You may not use, export, import, or transfer SiteUpturn Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained SiteUpturn Properties, and any other applicable laws. In particular, but without limitation, SiteUpturn Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using SiteUpturn Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use SiteUpturn Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by SiteUpturn are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any products, services or technology provided by SiteUpturn, either directly or indirectly, to any country in violation of such laws and regulations.
49. Consumer Complaints: In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
50. Headings: Headings for each paragraph are provided for convenience only. They won’t be given legal effect in interpreting or limiting the scope of the Agreement.
End of Terms
Our business depends on SiteUpturn’s users, readers, and clients trusting us, so we want to be crystal-clear about SiteUpturn’s policy on monetization. SiteUpturn earns money in numerous ways via this website and Third Party websites, including:
- Selling services
- Online ads
To be transparent, SiteUpturn currently avoids receiving money from affiliate offers because we want to recommend the best resources & options to you.
If you have any questions about SiteUpturn’s monetization policies, please contact us.