Terms and Conditions

MASTER SERVICE AGREEMENT

Last Updated: December 08, 2022

This MSA is made and entered into by and between the individual or entity executing this MSA as the customer (“Customer”, “You”) and UpSella, LLC. (“Company”, “Provider”). For purposes of this MSA, Customer and Company shall be referred to collectively as the “Parties” and each individually as a “Party.”

WHEREAS, Company provides Website Hosting Services, domain registration, SEO optimization, and website development services. Customer desires to obtain and Provider agrees to provide such Services as specified herein in accordance with this Agreement and the Statements of Work attached and made part of this Agreement. Customer and Provider agree that the following terms and conditions shall govern Provider’s provision of such Services and Customer’s acceptance of those Services.

WHEREAS, for purposes of this MSA, the term “Service Order” shall refer to the Service Order Form or Online Subscription form, each of which is incorporated herein by reference (this MSA and the Service Order shall be referred to, collectively, as the “Agreement”).

NOW THEREFORE, in consideration of the respective representations, warranties, covenants and agreements set forth in the Agreement, and subject to Company having all necessary approvals, facilities and agreements to provide the Services, Customer and Company agree as follows:

1. Definitions

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Provider hereby agree as follows:

  1. ‘Project’ is website design, content or logo work undertaken or service provided by Provider for the Client on their request and as described in our confirmation order email to that Client.

  2. ‘Deliverables’ means the custom website that was developed with the input from the Customer and the content, software solutions, logos, designs, programming, or other designated work product specified in the applicable Service Order.

  3. ‘Service’ is SEO, PPC, SMM, web care or any other ongoing recurring work we undertake.

  4. ‘Confirmation order email’ is an email we will send you detailing any project, service or work we undertake. This will include details of the work as well as payment terms.

  5. ‘You’ or ‘Client,’ is a person, persons, business, or organisation using any of the services provided by Provider.

  6. ‘We’ or ‘us’, means Provider.

  7. ‘Live Mode’ means the date the website is available on the Client’s chosen domain.

  8. ‘Domain’ is the website address as specified by the Client.

  9. ‘Open Source Software’ is software made freely available to anyone under the GNU General Public License (GPL).

  10. ‘Website Support’ is a yearly cost to keep a Client’s website hosting and support active.

  11. ‘Content’ is both text and images that the Client requires on the website.

  12. ‘Text Content’ is the text wording on the Client’s website.

  13. ‘Content Writer’ is a copy writing service Provider offer for a fee.

  14. ‘Copy Writer’ is the person working for UpSella who will create your content.

  15. A ‘Page’ of content shall be up to 500 words.

  16. ‘Site’ or ‘Website’ is the website as seen on the internet and owned by the Client. ‘Search Engine’ will include Google, Yahoo and MSN search.

  17. ‘Rank’ is the position of the Client’s website on the search engines.

  18. ‘SEO’ (search engine optimization) is the process of working to attempt to increase the rank of a Client’s website on the search engines.

  19. ‘Off Page SEO’ is the attempted optimization of the Client’s website using methods which do not require the editing of a Client’s website.

  20. ‘back link’ is a URLlink purchased and owned by UpSella from a third-party website.

  21. ‘PPC’ (pay per click) is a method of advertising on the search engines whereby the Client pays for each click of their advert from the user.

  22. ‘Advertising Spend’ is the financial amount that you will commit to the chosen search engines for your campaign. This doesn’t include the management fee.

  23. ‘Fees’ shall mean Provider’s fees to be paid Provider by Customer for Provider’s performance of the Services and/or provision of the Deliverables as specified in the applicable Service Order.

  24. ‘Management Fee’ is the charge for UpSella to manage your PPC budget.

  25. ‘Conversions’ is when the Client receives an enquiry that has occurred due to the PPC Campaign.

  26. ‘Social Media’ refers to Facebook, Twitter and Instagram.

  27. ‘Likes / Followers’ are 2 of the main things we will report on and measure as part of the Social Media service.

  28. ‘Facebook’ / ‘Twitter’ / ‘Instagram’ are the 3 Social Media sites that we can use to promote your business.

  29. ‘Post’ shall be either a tweet via Twitter.com or a post via Facebook.com or Instagram.

2. General

  1. The contract between Provider and the Client will be on these conditions, to the exclusion of all other terms and conditions. Any variations to these conditions shall have no effect unless agreed in writing.
  2. The work and services to be carried out shall be as set out in the Provider invoice which can be found attached to the confirmation order email.
  3. Provider will not tolerate any form of harassment against its employees from customers or third parties and we reserve the right to cancel a contract without refund in the event of unreasonable or inappropriate conduct. This includes threatening behavior and abuse directed towards our employees.
  1. Provider shall expect the Client to carry out sufficient research before proceeding with a website. This will include checking that the website/idea/business will operate legally. It is important that the website is not in any way illegal. Please ensure that any images or content you supply or use on your website, is legally available for you to use. We cannot be held responsible for the illegal use of images, content or format of material supplied by the Client. Provider reserve the right to remove any website from its servers if it has reason to believe that it is operating illegally.
  2. Where images used on the website have been purchased by Provider on behalf of the Client, these images are restricted by license for use on the website only and are limited to 15 images per project. Provider is not liable for misuse of these images by the Client or any other person’s copying, altering, or distributing the images to 1.individuals or other organisations.
  3. Provider cannot be held responsible for anything adversely affecting the Client’s business operation, sales, or profitability that might be claimed is a result of a service offered by Provider.

4. Communication

  1. Email is our primary method of contact with regard to all communication for your project. Our support email contact@UpSella.org is the most efficient and cost-effective form of contact. If you have any problems with the project that our team is unable to resolve by email, you can contact our project managers via the telephone support service during US office hours on (858) 304-0197.
  2. It is the Client’s responsibility to inform us by email of any change in email address, so we always have valid contact details. We cannot be held liable in any way for problems relating to communication issues if we are not supplied with a valid email address. Some of our systems rely on this email to inform you of various important information. We also advise that Client’s check junk and spam folders regularly.
  3. It is important for the Client to keep in contact with Provider throughout the project. If a Client does not make contact for more than 2 weeks after a draft has been received, we will make up to 5 attempts to contact the Client by email using the email address for the Client held on file. If we do not receive a response to these attempts of contact the project will be considered complete. If the Client wishes to postpone the project for a period of longer than 2 weeks, please contact us. We reserve the right to levy a $150 administration fee if the Client returns after an unapproved postponement where the time since last contact is less than 6 months and wishes to continue work on their project.
  4. If a Client returns from an unapproved postponement and the last contact is more than 6 months, we shall need to provide a new quotation for the project and your original payment will be non-refundable or transferable.

5. Paying for your Project

  1. UpSella will automatically charge you in advance the support Fees owed for one month and any one-time Fees. Thereafter, UpSella will charge you the Fees owed for each subsequent month on the anniversary of your Start Date. All payments are to be made by credit card or ACH. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information. If you fail to make any payment when due and have failed to cure such failure within 10 days after we provide written notice to you then, in addition to all other remedies that may be available to us, we may suspend our performance under this Agreement, without any liability to you or others.
  2. On receipt of final payment, full ownership of the project is handed to the Client.
  3. All payments to Provider for any project or service are non-refundable.
  4. There will be no minimum term for our service.
  5. UpSella will require a minimum of one months’ notice of an intent to cancel a service. Failure to provide a month’s notice will result in the next month’s invoice becoming due.
  6. Design and layout changes to the internal pages of the website are subject to restrictions within depending on what platform we use. These include Hugo, WordPress and ButterCMS development.
  7. A “revision” is defined as any change or series of changes requested by the Client after the initial presentation of a deliverable (e.g., website design mockups, draft content, functional prototypes) that does not align with the original specifications provided by the Client. This includes modifications to the layout, color scheme, content, functionality, or other aspects of the deliverables.
  8. Initial Deliverables: The Client is entitled to a maximum of three (3) rounds of revisions for the initial deliverables at no additional cost, provided that such requests are made within the scope of the original specifications. Any additional revisions requested by the Client will be subject to additional charges at the rate of $120 per hour.
  9. Final Deliverables: The Client is entitled to a maximum of one (1) round of revisions for the final deliverables at no additional cost, provided that such requests are made within the scope of the original specifications. Any additional revisions requested by the Client will be subject to additional charges at the rate of $120 per hour.
  10. UpSella will provide the Client with an estimated completion time frame for the project (go live date) if requested. Estimated completion date is not a guarantee.
  11. Open-Source software (OSS) is publicly available software that may be adapted or modified to suit applications. OSS may be used to help develop elements of the functionality of the Client’s website to speed development and add functionality. Where Open Source software is used, the ownership of the site coding and any customisations made by the developer is still passed to the Client upon final payment.

6. Website Support

  1. UpSella will provide Website Support for the website on receipt of full payment of our monthly Website Support subscription fees within 90 days after the website went live. In doing so, UpSella LLC will provide a reliable and professional service to the client, including minor updates, upgrades, and problem resolution.
  2. Website Support subscription fee is payable monthy.
  3. The Website Support subscription fees must be received within 10 days of due date. We reserve the right to deactivate any website when the subscription has expired and the client has not paid the monthly subscription charge. We reserve the right to charge an administration fee of $150 for reactivating Website Support.
  4. If the client does not use UpSella Website Support services, then the management and hosting of the website are the full responsibility of the client.
  5. If the client does not wish to renew Website Support, the website files and associated data can be made available to the client for free on request and the domain name can be transferred to the client’s registrar account. Should the client instruct us to upload and configure the site and domain name to a third-party server this work will be subject to charge.
  6. Provider reserves the right to delete the website from our servers 3 months after the date your Website Support expired if you choose to not renew it.
  7. UpSella offers free SSL with sites we host and manage DNS for. If you wish to manage DNS independently, we cannot provide support for SSL.
  8. Payments for Website Support products are non-refundable and non-transferable.
  9. While a website is hosted with Provider, we shall be available between the hours of 8:00 AM and 6:00 PM PST Monday – Friday, excluding all bank holidays. Within a reasonable time, we will look to fix any issues with the website, or accept and deploy customer changes to website content.
  10. Copy writing is iterative process, and for this reason we offer Client to make changes to website content and submit changes for Provider to review and deploy to the live website. Text content additions and modifications are provided as a ‘per page’ service. The number of pages of text content we support shall be based on the amount agreed as per your Service Order. Text content changes beyond this point are subject to additional charges.
  11. If needed we offer 5 small changes to your website for free every year. Additional changes will include an additional cost that will be estimated by Upsella. Any other changes to your website that will take Upsella over a 30 minutes to fix will not be considered a small change and will also include an estimated additional cost charged to the customer, estimated by Upsella.
  1. If required, a domain name will be registered by Provider on behalf of the Client once we have received payment in full. This is limited to one .com or .org domain. Any additional domain names can be purchased for an additional charge. Although the domain names are registered to us, the Client is the legal owner of the domain and if they request to have details changed or the domain transferred elsewhere, we will do this within a reasonable timeframe.
  2. Domain names require yearly renewal and there is an associated fee for this. Each Client who hosts their website with Provider receives 1 free domain name renewal every 12 months as part of their hosting, providing they pay their Website Support subscription fee.
  3. Any domain name renewal for domains not managed by UpSella is the responsibility of the Client.
  4. We place a small text link on the footer of our Client’s website that simply states the website was designed by Provider and links to our company website. This link can be removed, if required.

8. Website Text Copy (Content)

  1. The Client will be offered to utilise the Provider content writing package at an additional cost to the website. If the Client doesn’t require this package, Provider will require the Client to send all content that is to be added to the website in a Microsoft Word doc file, including product photos, prices, and product descriptions for ecommerce site. The website content must be received no later than 2 weeks after the design has been approved and signed off. If the Client does not send content within this time period, provider reserves the right to send the design files to the Client and collect full payment for website implementation.

9. Logo Creation

  1. UpSella will create you a logo if you do not already have one. The logo will include your company name and strap line if you have one. We can change the font and the colors used. We will also incorporate royalty free template clip art if you would like. We will carry out a maximum of 2 hours work on the logo including changes. If you would like more than this for your logo, we will recommend our premium logo option at an additional cost.

10. Privacy Policy & General Website Terms Creation

  1. If you choose to use UpSella to create your privacy policy and / or general website terms, you will be charged extra for this.
  2. If you choose to use UpSella to create your privacy policy and / or general website terms we would always recommend having these independently checked by a professional legal representative.
  3. The privacy policy / general website terms that we offer Clients will be produced by a third party.

11. Search Engine Optimization

  1. Provider shall create text content with search engine optimization in mind. This does not mean that the text content has been created specifically to increase a websites’ ranking on search engines.
  2. If a website does not ‘perform’ to a Client’s expectations, UpSella cannot be held liable in any way for this due to the Content Writing service offered.

12. SEO Service

  1. If you choose to pay for SEO monthly, we will require you to sign up for automated billingfor recurring monthly payments. Provider require a minimum of 30 days notice of a Client’s intention to cancel a campaign.
  2. If you choose to pay for SEO upfront, Provider carry out any work you have paid for and then you will be billed monthly until you provide written cancellation notice. Provider require a minimum of 30 days’ notice of a Client’s intention to cancel a campaign.
  3. If Provider does not receive payment we will stop working on your site optimization until payment is received. This may negatively affect your site’s performance on the search engines, and the invoiced value will still be due.
  4. Provider may need to edit your site to carry out on page site optimization work.
  5. Links used on a Client’s behalf as part of an ongoing search engine optimization may or may not continue to work during the term of the SEO contact or on termination. Provider will attempt to increase the rank of your website on the search Engines. There is however no guarantee that we can do this. Your monthly payment covers the time used to plan and execute the Clients SEO campaign. Provider cannot be held responsible for Search engine algorithm changes that could negatively affect the ranking of the Client’s website.
  6. The strategies and campaign objectives created by Provider are done so on a per-Client basis, Provider cannot be held responsible for any negatively implied impacts of the work completed.
  7. Provider cannot be held financially liable in anyway regarding your website ranking on the search engines.
  8. For competition reasons, Provider will not disclose any backlinks that may be purchased as part of your SEO campaign. If requested, we will provide a backlink report provided by reputable SEO software

13. PPC Service

  1. Payments will be taken monthly for the UpSella management fee starting on the day the Client proceeds and every month thereafter. There will be no minimum term, but UpSella do require a minimum of 1 months’ notice of a Client’s intention to cancel a campaign. Failure to provide a month’s notice will result in the next month’s invoice becoming due.
  2. The Client shall pay the chosen search engines directly for their advertising spend. UpSella will manage this spend. Where a daily budget has been agreed, the Client understands that Google may exceed the daily budget on one day and balance up on a different day as per their terms https://support.google.com/adwords/answer/2375423?hl=en
  3. UpSella can only operate on websites that are permitted to advertise on Google, further information on their policy can be found here https://support.google.com/google-ads/answer/6316?hl=en
  4. If Provider does not receive payment, we will stop managing your PPC account until payment is received. This may negatively affect the Client’s website performance and could lead to increased advertising spend.
  5. Provider will attempt to improve your website traffic using optimized PPC. There is however no guarantee with this service. Your monthly payment covers the time used to plan and execute the Clients PPC campaign.
  6. Where conversions are measured in terms of end goals on the Client site, UpSella are not responsible for conversion levels in the case of changes to the site / products by the Client. For instance, an increase in product price may bring the conversion rate down irrespective of any actions taken within the PPC campaign.

14. Liability

  1. Nothing in this Agreement shall exclude or limit: (i) UpSella liability for death or personal bodily injury to the extent caused by its negligence; or (ii) any other liability which cannot be excluded by law.
  2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL COMPANY OR ITS LICENSORS BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR (I) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, DIMINUTION IN STOCK PRICE OR REPUTATIONAL HARM, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, ANTICIPATED SAVINGS, WASTED MANAGEMENT AND STAFF TIME; WHETHER (IN ANY SUCH CASE) ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT OR USE OF THE SOFTWARE, AND WHETHER OR NOT COMPANY OR ITS LICENSORS HAVE BEEN ADVISED SUCH DAMAGES OR LOSSES MIGHT OCCUR; OR (II) ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES.
  3. SUBJECT TO SECTIONS 14.1 AND 14.2, TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS LICENSOR’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, REGARDLESS OF THE THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF THE FEES ACTUALLY PAID OR PAYABLE FOR THE SOFTWARE AND SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE CAUSE OF ACTION AROSE.

15. Miscellaneous

  1. Entire Agreement. This Agreement (including the Service Order) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). (b) Counterparts. Any Service Order may be executed in one or more counterparts, each of which will be an original, but taken together will constitute one and the same instrument. Execution of a facsimile copy (including PDF) or execution through electronic means will have the same force and effect as execution of an original. (c) Amendment, Severability and Waiver. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. (d) Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in San Diego County, California, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. (e) Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail in portable document format (.pdf), certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the Service Order. (f) Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. (g) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (h) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. (i) Publicity Rights. We may include your name, trademarks and/or logos on our website and/or in other sales and marketing materials in order to factually identify you as a current or former client (as the case may be). (j) Force Majeure. Neither party will be liable for any delays or non-performance of its obligations (excluding the obligation to pay fees due hereunder) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards) or the party had notice. (k) Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections Confidential Information or Intellectual Property Rights of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

.