1. DESCRIPTION OF WEBSITE SERVICES.
Upgrade Web Design, LLC (hereinafter referred to as “Upgrade Web Design” or “Upgradewebdesign.com”) will build and or maintain a Website (hereinafter referred to as the “Website”) for the Customer (hereinafter referred to as “you” and/or the Customer) as identified in the related sign-up or order process and further based upon direction and input provided to us by you. The Services referenced in this Section may be collectively referred to as the “Website Services” or “Website”. Subject to the Terms and Conditions of this Agreement (which includes this and all other applicable Sections) and during the term of the Agreement, Upgrade Web Design agrees to provide to you the Website Services described on the Upgradewebdesign.com website at the time of purchase and purchased by you during the sign-up or order process. Upgrade Web Design reserves the right to amend its Website Services offerings at any time and from time to time, and to determine whether and when any such changes may apply to both existing and future customers.
1.1. In the event the Upgradewebdesign.com refers you to an affiliate or partner website and you engage such affiliate or partner to directly provide website design, marketing, or logo services to you, you understand and agree that Upgrade Web Design in no manner responsible for the services provided by such affiliate or partner and that the terms and conditions of that affiliate or partner will apply to the provision of those services provided by the affiliate or partner.
1.2. For the Custom Website Service, Upgrade Web Design will assist the Customer with the design of a website using Open Source website building tools and third party tools licensed by Upgrade Web Design, including but not limited to WordPress, which is a content management system platform, referred to as a “CMS”, and all of its associated modules (“add-ons” and “plug-ins”) including plugins and custom HTML, Javascript, CSS, and PHP code customizations as selected by Upgrade Web Design at Upgrade Web Design’s sole and absolute discretion. Additionally, Website Services may include additional Internet marketing services as outlined in advance in writing by Upgrade Web Design and as further governed by this Agreement.
1.3. Customer’s website design, as part of their Custom Website Service, may be dictated by an Order Form, Questionnaire, and/or Statement of Work (“SOW”). The level of service included in Custom Website Service offerings includes an offering whereby the Customer may request Upgrade Web Design to design and create a Website for them, including forms, graphics, layouts, and other features and functions as determined by Upgrade Web Design and at Upgrade Web Design’s sole discretion, based on the information and content provided by Customer during or after the sign-up or purchasing process. Upgrade Web Design may design and create the Customer’s website in part or whole with a premade or pre-existing template (also referred to as a theme), and as such, Customer’s Website may contain features and design elements used in other Websites designed by Upgrade Web Design and other marketing or website design agencies. Customers will receive a “Draft Version” of the Website within 30 days after the submission of all required content requested of Customer. All requested content by Upgrade Web Design is due within 10 days or purchase of any Service, bundled Services, or Service plan offered by Upgradewebdesign.com. Any failure to submit all requested content within 10 days of purchase could uphold or delay the Website project. If Customer does not submit the requested content by the 15th day after purchase, it is Upgrade Web Design’s sole and absolute discretion to suspend, delay, or cancel the Service(s) purchased. In the event that a suspension, delay, or cancellation occurs, it is at Upgrade Web Design’s sole and absolute discretion to provide a refund, see “Customer Obligations” in Section 2 and “Refunds” found in Section 11 of this Agreement for further definition. Upon receiving the “Draft Version” of your Website you will receive unlimited revisions for up to 30 consecutive calendar days where Upgrade Web Design will edit, modify, and/or customize the “Draft Version” to your liking. If revisions or the design fall outside of the general offerings and requires additional customization, in addition to the Terms and Conditions set forth in this Agreement and Section, you shall be bound by all terms of the Scope of Work or SOW which shall be prepared by Upgrade Web Design and mutually agreed to by Customer and Upgrade Web Design. The SOW may contain, but may not be limited to, a description or list of the services Upgrade Web Design’s designers and developers will provide as part of the Website Services, a list of graphic(s), function(s), specialty, or technical features that will be incorporated into your Website design and/or Website, including a description of any applicable fees, additional fees, cancellations fees or policy. The SOW shall become a part of this Agreement and shall be subject to all terms and conditions of the Agreement.
2. CUSTOMER OBLIGATIONS.
2.1. In order for Upgrade Web Design to provide the Services purchased through upgadewebdesign.com and/or through a SOW, Customer has an obligation and responsibility of:
2.1.1. Providing all content and information requested by Upgrade Web Design, which is needed to design and develop the Website for you, unless stipulated otherwise in a custom SOW. Content includes, but is not limited to, all graphics, images, videos, texts, processes, personal and/or company information including products, services, or both. Graphics may include brochures, pamphlets, logos, and any other high-quality images you wish you have included in the design and development of your website. Specific image file types may be required and will be defined for you on Upgradewebdesign.com and/or in the request for content by Upgrade Web Design before, during, or after purchase of Services;
2.1.2. Contacting Upgrade Web Design promptly with notice of your decision to cancel or discontinue the Website Services starting from the date of sale.
2.1.3. Contacting Upgrade Web Design promptly to make enhancements, changes, or modifications to your Website starting from the date of sale;
2.1.4. If and to the extent you collect personal information about your Website visitors or users, you shall not share the collected personal information with any third party without first obtaining the visitor’s or user’s consent;
2.1.5. Ensuring you do not provide any content which infringes on intellectual property rights including but not limited to copyrights, patents, trademarks, trade names, trade secrets, domain names, or any other right of any third party (including but not limited to, contractual rights and the rights to privacy) or other proprietary information;
2.1.6. Ensuring the accuracy of materials provided to Upgrade Web Design, including website content, nature of business, descriptive claims, warranties, guarantees, and contact information for you;
2.1.7. Obtaining Internet Connection on both desktop and mobile devices for communication, collaborating, viewing previews, editing, and modifying purposes and to otherwise utilize the Internet;
2.1.8. Responding promptly to requests deemed necessary by Upgrade Web Design to move the project forward in a timely manner. A project manager, designer, or other representative of Upgrade Web Design may contact you to work with you to gather information to start, receive commentary or feedback on the project, for approval, or to complete your Website. If you cannot be reached for a response within (15) days of when you sign-up or purchase a Service or plan, or from the last contact date, the project is considered “abandoned” and payment is surrendered in full. Upgrade Web Design reserves the right to charge you a processing fee for any refunded payments, if given, at the sole discretion of Upgrade Web Design. Upgrade Web Design reserves the right to charge you a fee for and delay in Website production due to lack of content submission by the scheduled due date set forth by Upgrade Web Design (which is typically 10 days maximum from start of sign-up or purchase date), rescheduling of consultations, reinstatement of your Website if the Customer account becomes inactive after 30 days, or any other forced delay keeping Upgrade Web Design from completing any Service to you; and
2.1.9. Following all schedules and the timeline of activities provided to you by Upgrade Web Design, if any.
3. CONTENT AND INFORMATION PROVIDED BY YOU.
The information and content provided to Upgrade Web Design by you, the Customer, must be true, accurate, current, and complete. Upgrade Web Design reserves the right to suspend, terminate, and/or refuse any and all provided Website Services, now and in the future, if any portion of the content and/or information provided by you proves to be untrue. Upgrade Web Design or any designee thereof reserves the right to remove any content that may violate the terms and conditions in this Section or other Sections of this Agreement.
4. UNAUTHORIZED OR INAPPROPRIATE USE
4.1. Upgrade Web Design reserves the right and sole discretion to deny, suspend, or terminate the Website Services without notice to you, if for any reason is if found that Customer has acted in a manner which may violate the following standards of the AUP and the standards set forth by Upgrade Web Design, may result in the rejection, removal, modification of your website, URL address, or any content (including, but not limited to;
4.1.1. Any language, words, texts, photographs, drawings, designs, images, graphics, symbols, logos, or videos which Upgrade Web Design may, in its sole discretion, deem a violation of the AUP or (i) any infringement or mechanism to facilitate infringement of Upgrade Web Design or any third party’s proprietary information or processes, including but not limited to trade marks, trade names, copyrights, patent rights, or trade secrets, or (ii) implying or stating the the Website placed by Upgrade Web Design or any party with a contractual agreement with Upgrade Web Design, or any such parties endorse any of Customer’s products or services, or (iii) illicit, obscene or pornographic materials.
4.1.2. Upgrade Web Design does not permit or sanction the use of illicit, obscene, or pornographic content which may foster or promote illegal activity on Upgrade Web Design’s hosted servers or websites. Upgrade Web Design reserves the right to suspend, or terminate, without notice to you, any website or transmission that violates this policy. In the event of such termination, Customer agrees that the unused portion of any fees paid for any services rendered to Customer by Upgrade Web Design is appropriate compensation for the time and efforts required to address any issues created by Customer’s illegal and/or obscene content and/or activity, and Customer agrees not to recover those fees. Further, Customer is responsible for any and all fees associated with any violation of the AUP of this Agreement, Upgrade Web Design will cooperate and actively assist with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer’s website, the illegal, illicit, or obscene content, and those persons that may have inappropriately accessed or acquired such content.
5. NON-INTERFERENCE BY YOU
Customer will use Services provided by Upgrade Web Design in a manner that will not disrupt or interfere with other network users, services, or equipment and Upgrade Web Design reserves sole discretion to suspend or terminate your services immediately and without notice to you if such interference is determined by Upgrade Web Design. Interference and disruption is defined, but not limited to:
- Propagation of worms, trojan horses, or viruses;
- Use of the network to share, distribute, or hide illegal files. Including sharing illegal or illicit files by message to any groups, news, private, or public forums.
- Wide-scale distribution of electronic mails, messages, notifications and other message types that are considered unsolicited, including bulk electronic mail, bulk texting, bulk notifications; and
- Use the network to make unauthorized access to any communications, computational, or informational devices, or resources. This includes tests to evaluate the security of the network or host without permission.
6. ADDITIONAL INDEMNIFICATION OBLIGATIONS.
In addition to Customer’s obligations elsewhere in this Agreement, Customer agrees to indemnify, defend, and hold harmless Upgrade Web Design, and each of its agents, employees, officers, directors, freelancers, affiliates, and any other partners, and employees of any of the foregoing, against, from, and in respect of: (i) any and all damages or deficiencies due to a third party claim in connection with your website (including, but not limited to, your website content), and (ii) all costs and expenses incident to any and all suits, actions, claims, proceedings, assessments, or judgements in respect thereof regardless of the merit thereof, including reasonable legal fees and expenses (whether incident to the foregoing or Upgrade Web Design’s enforcement of said rights or defense and indemnity).
7. OWNERSHIP OF YOUR CONTENT.
7.1. As between all Content shared between you and Upgrade Web Design, all Content provided by Customer to Upgrade Web Design shall remain the sole and exclusive property of Customer. Customer acknowledges that any and all Content is owned by Customer or Customer holds legal right or license to such Content and the use thereof does not violate Upgrade Web Design’s Acceptable Use Policy (AUP) in any way. Customer is responsible for any and all claims made related to Content.
- Upgrade Web Design Footer – Customer hereby agrees that the text and image footer link (site by UpgradeWebDesign.com) will appear on the completed Website. Customer may choose to exclude the Upgrade Web Design footer from its website, subject to an additional one-time fee to Upgrade Web Design for the amount of One Thousand Dollars ($1,000) USD.
- Ownership interest to the Website, including but not limited to HTML coding, scripting, copyrights, and intellectual property rights shall remain exclusively with Upgrade Web Design and Upgrade Web Design grants you a non-exclusive, revocable license to the Services provided to you, provided that Customer is current with respect to fees and obligations and not otherwise in breach of this Agreement. Upgrade Web Design also retains the right to display your Website on Upgrade Web Design’s online properties as an example of design work or Services provided by Upgrade Web Design.
7.2. Upon termination of services, if Customer wishes to obtain ownership rights to the Website, Customer must obtain express written permission by Upgrade Web Design and Customer shall further remit a fee to Upgrade Web Design for the assignment of these rights to the Website. Provided Customer is not in default of this Agreement and Customer is also current in respect to payments owed to Upgrade Web Design, the fee to be remitted will be as follows: Two Thousand Five Hundred Dollars ($2,500) prior to one (1) year of successive hosting and maintenance with Upgrade Web Design. The assignment of ownership rights to Customer of the Website shall be limited to the visible portions of the Website and its underlying HTML coding as developed by Upgrade Web Design specifically for Customer, and shall be sent by a link to a compressed archive file or ZIP file (.zip), within thirty (30) days of remitting payment of the associated fee, but this agreement does not grant ownership rights to Upgrade Web Design’s processes, proprietary functions, methodologies, know-how, and all intellectual property including trade secrets, patents, and trademarks related to Upgrade Web Design’s Services or products, which shall remain the sole and exclusive property of Upgrade Web Design and its respective suppliers, affiliates, partners, and/or licensors. For all images that are a part of the Website and assigned to Customer hereunder, Customer is granted permission to only use those images in a manner in which it is provided to Customer by Upgrade Web Design (i.e. embedded in the website) and no other use of such images are not permitted whatsoever. Moreover, upon assignment of Website, Upgrade Web Design in no way warrants portability or functionality of the Website in any way or on a platform, hosting or otherwise, that is not provided by Upgrade Web Design. The files provided to the Customer shall be a static snapshot of the Website that you can host on a third party server through a non-affiliated party. However, the features and functionalities such as plugins will not be available after cancellation or termination. Customer will need to hire a web developer to move the Website to the new third party hosting provider’s server(s), maintain the Website, and make any changes or edits. To retain certain third-party plugin functionalities, Customer may be required to purchase, subscribe, or obtain a license from the third-party plugin provider(s) on your new platform away from Upgrade Web Design’s servers.
8. FEES AND PAYMENT TERMS.
8.1. Fees for the Website Services selected are due on a prepaid basis, and are payable at the time of sale (at the beginning of the project) and then on a recurring basis, in advance of each billing cycle, throughout the Term of the Agreement, unless another fee or payment structure is mutually agreed upon by you and Upgrade Web Design in writing, namely, in the Statement of Work (SOW) or via other method such as a welcome email or order confirmation. You also agree to follow the timeline set forth by Upgrade Web Design in the SOW, if applicable.
8.2. Month-to-Month pricing offered by Upgrade Web Design is offered in two tiers of pricing, each tier with its own set of terms and obligations. You agree to be bound by the terms and restrictions of the plan selected by you at the time of purchase or at the time of transitioning (upgrading or downgrading) from one plan to another. Each pricing tier provides the same service within a specific plan, however, discounts may be given based on the level of commitment by you to pay in advance. The origination date of your project does not change or alter when transitioning (upgrading or downgrading) from one plan to another. The origination date of your project is used to determine any buy-out costs upon service cancellation.
8.3. Month-to-Month Pricing subscriptions, including any other Month-to-Month service subscription offering, unless otherwise specified in writing, have no minimum commitment beyond the first month of service, and are charged the highest posted rate for a particular plan, not including any discounts. You agree that by selecting a Month-to-Month subscription offering or any other Month-to-Month pricing with no commitment, that should you cancel at any time during the monthly billing cycle, you are not entitled to a refund and a subject to pay a cancellation fee of two-hundred and fifty dollars ($250) if cancellation occurs at any time and for any reason.
8.4. Websites purchased with Monthly Payments, unless otherwise specified in writing, have a minimum commitment of twelve (12) months of service, and as such are charged the highest posted rate of a particular plan. By selecting this option you agree to pay for the twelve months of service, and should you wish to cancel your service prior to the twelfth month billing cycle, you are obligated to pay the remaining balance up to the twelfth month billing cycle and, at Upgrade Web Design’s sole discretion, are subject to a two-hundred and fifty dollar ($250) cancellation fee. Once you have met the twelfth month minimum commitment, you are able to cancel services without cancellation fees or penalties. For more information, please see our Monthly Payment Terms and Conditions.
8.5. Websites purchased with Annual Pricing have a one-year annual commitment of twelve (12) months, and as such are charged at a discounted rate from the highest posted rate for a particular plan. By selecting this option you agree that you are obligated to pay for the full year of service in advance, and that should you wish to cancel you can do so, however there will be NO REFUND made available to you.
8.6. You further agree that if you terminate your Website plan, downgrade your Website plan, or upgrade your Website plan, and/or transition from Month-to-Month Pricing to Annual Pricing tiers, and do so prior to the delivery of any Website services, including the initial Draft version of the Website provided by Upgrade Web Design for Customer review, you are obligated to pay a two-hundred fifty dollar ($250) cancellation fee unless you qualify for Upgrade Web Design’s money-back guarantee. If Website services have been completed and delivered to you, (meaning the Website has been approved by you and ready to be published or is published “live” on the internet), you will not receive a refund of any fees paid, and are obligated to pay a two-hundred fifty dollar ($250) cancellation fee, and in the event we have permitted you to pay on a monthly (or payment-over-time) basis, you will be obligated to pay Upgrade Web Design for the full balance of your term based on the pricing tier selected at the time of purchase.
8.7. The purchase and completion of any Website Service requires receipt of written content and images by you (“Content”). If insufficient Content is received we will complete your Website with placeholder content and deliver the Website Services to you within the guidelines of the timelines set by Upgrade Web Design. Upon delivery you will no longer be eligible for a refund. Content submitted after the timeline provided to you can be submitted and added at any time as long as you are currently on a Website Services monthly payment plan selected at time of purchase. If you are not currently under a monthly Website plan but have your Website hosted with us, content may be added at the hourly rate of one hundred ninety-nine dollars ($199) per hour or as otherwise determined by Upgrade Web Design at our sole discretion.
8.8. Responses from you will be necessary for the timely progress and completion of any Website project. If a response is not received within thirty (30) days, the project is considered “abandoned” and you will be obligated to pay us for the remaining balance of your term. Upgrade Web Design reserves the right to charge additional fees and charges at the rate chosen at Upgrade Web Design’s sole discretion for repeatedly missing consultations and/or meetings related to any Website Services project and you agree to permit Upgrade Web Design to charge your credit card for said fees.
8.9. You further agree that if you purchase any Website Services and Upgrade Web Design has provided you with discounted pricing via a coupon code for use on upgradewebdesign.com or applied to your order, regardless of pricing tier selected, Upgrade Web Design shall have the right to charge your credit card, up to two hundred fifty ($250) dollars, should you cancel the Website Services at any time and for any reason.
8.10. Payment for the purchase of additional pages, design time, or development after the Website project has been completed is considered as (“Modification Time”) and will be on a prepaid basis, due and payable at the beginning of each modification. Modification Time may be included with your Service as stipulated in the plan you select at time of purchase. Once any included Modification Time is exhausted, additional modification time may be purchased on the UpgradeWebDesign.com website. Additional modification time is billed at ninety-nine ($99) dollars per hour for modification to existing pages beyond the allotted number of minutes included in your Service plan, as stipulated in the list of plan features or in the sign-up or order process; and one hundred ninety-nine ($199) dollars per page for any content development beyond the initial number of pages included in your service, as stipulated in the listed plan features, sign-up, or order process. Any unused Modification Time, additionally paid or included in your Website plan, shall not “rollover” to be used in the subsequent month.
9. UPGRADING AND DOWNGRADING OF SERVICE PLANS
Upgrading: To upgrade to a higher tier with more features, benefits and pages, you will be charged the prorated difference between your original selected plan and new selected plan for the remainder of your current billing cycle. Your subscription will be modified to automatically bill your credit card on file for the new higher amount due at the next billing cycle. There are no start-up fees to upgrade your Website plan.
Downgrading: To downgrade to a tier at a smaller cost Upgrade Web Design requires 15 days notice prior to the next billing cycle and a one-time fee (“Downgrading Fee”) equal to one month service at the initial plan rate you are downgrading from. The fee required to downgrade plans allows Upgrade Web Design to transition and format the Website content, templates, plugins, and any other necessary changes to work within the confines of the downgraded Website plan. No additional fees are required unless additional services are requested. Any additional requested custom work for design or development requires a separate quote and agreed upon by both the Customer and Upgrade Web Design under a separate document (see Section 10 of this document).
10. MODIFICATIONS AND QUOTES
Modifications and prices agreed to in any Statement of Work are unique to you. Any Statement of Work prepared for you is valid for fifteen (15 days from the date of delivery to you by electronic mail.
11. REFUND POLICY
Refunds are only available to monthly billed subscriptions within fourteen (14) days of the initial order date and with having no revisions requested from the date of the presentation of the draft Website to the Customer. No refunds will be given after fourteen (14) days and/or after a draft Website has been delivered and revisions have been requested.
12. TERM, SUSPENSION, TERMINATION
If Customer breaches any term of this Agreement, including but not limited to, the terms of this Schedule or the AUP, Upgrade Web Design may, in its sole discretion, suspend or terminate your Services immediately and without notice to you. In addition to your obligation to pay any setup or sign-up fee and applicable fees for Website Services, fees for the Services may continue to accrue on suspended accounts and you will continue to remain responsible for payment of any fees for Website Services that accrue during the period of suspension. Reactivation of a suspended account will occur within twenty-four (24) hours after remittance of payment.
SITE POLICIES, MODIFICATION, AND SEVERABILITY
Please review all policies posted on this site. These policies also govern your use of Upgrade Web Design Services. We reserve the right to make changes to our site, policies, Service Terms, and these conditions at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition. If you do not agree with all applicable Agreements do not purchase any products or services now or in the future.
