Terms of Service
Last updated on: May 3, 2022
By signing up for the Upperside Media service (“Service”) or any of the services of Upperside Media, LLC and/or Upperside Media DC, LLC (“Upperside Media”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). The Services offered by Upperside Media under the Terms of Service include various products and services to help you create and manage a website (“Web Services”), host a website (“Hosting Services”), or both. Any new features or tools which are added to the current Service shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://upperside media.com/terms. Upperside Media reserves the right to update and change the Terms of Service by posting updates and changes to the Upperside Media website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
You must read, agree with and accept all of the terms and conditions contained in this Terms of Service agreement before you may become a Upperside Media user/client/customer.
Please read the “Terms of Service” for the complete picture of your legal requirements. By using Upperside Media or any Upperside Media services, you are agreeing to these terms. Be sure to occasionally check back for updates.
1. Account Terms
1.1) You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
1.2) To access and use the Services, you must agree to become a Upperside Media Client and therefore maintain a Upperside Media client account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. Upperside Media may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
1.3) You acknowledge that Upperside Media will use the email address you provide as the primary method for communication.
1.4) You are responsible for keeping any/all related passwords secure. Upperside Media cannot and will not be liable for any loss or damage from your failure to maintain the security of your Web Services and/or Web Hosting.
1.5) You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
1.6) A breach or violation of any term in the Terms of Service, as determined in the sole discretion of Upperside Media will result in an immediate termination of your services.
2. Account Activation & Ownership
2.1) Upperside Media Account – The person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
2.2) Domain Names – Upon purchasing a domain name through Upperside Media, domain registration and fees will be preset to automatically renew each year, or month if on monthly terms, so long as your Upperside Media Account remains active. You acknowledge that it is your sole responsibility to contact Upperside Media to deactivate the auto-renewal function should you choose to do so.
2.3) Web Hosting – Upon purchasing Web Hosting through Upperside Media, web hosting and fees will be preset to automatically renew each year, or month if on monthly terms, so long as your Upperside Media Account remains active. You acknowledge that it is your sole responsibility to contact Upperside Media to deactivate the auto-renewal function should you choose to do so.
3. General Conditions
You must read, agree with and accept all of the terms and conditions contained in these Terms of Service before you may become a user/client/customer of Upperside Media.
3.1) Technical support and Service is only provided to paying Account holders and is only available via email, voice phone calls, or in person meetings via applicable office and/or account manager.
3.2) Upperside Media will not alter the scope of work set out and agreed upon in user contract without prior written approval from user/client/customer. All changes to Project Scope will be approved and billed to user/client/customer in an appropriate and expedient manner and subject to Standard Fee Payment Schedule as outlined below.
3.3) Upperside Media will work with all diligence to adhere to project schedules outlined in proposal. User/Client/Customer understands that they are responsible for providing timely feedback and schedules can and will be extended due to feedback. User/Client/Customer also understands and accepts that they are responsible for providing content and revisions in a timely manner. Upperside Media is not liable for any schedule issues or delays that arise during project work and Services.
3.4) Website Hosting Services commence at project onset and agreement approval. Website Hosting Services are subject to Standard Fee Payment Schedule as outlined below.
3.5) User/Client/Customer agrees to revision process outlined in their scope of work and their allocated revision hours. Launch of website to live domain and/or Final Payment is considered final acceptance of website. You agree that any and all revisions and/or Services after Acceptance will be billed hourly at Upperside Media hourly rate.
3.6) User/Client/Customer acknowledges that they are responsible for performing the following in a reasonable and timely manner: (a) provide content in a form suitable for development to Upperside Media; (b) proofread all content and text provided.
3.7) All Technical Support and Support Services that exceed a total of 1 hour within a 30 day period are subject to our standard hourly rate.
3.8) Upperside Media does not guarantee any results in regards to Search Engine Optimization Services. Client agrees to, understands, and will not hold liable Upperside Media for any performance in the rankings whether positive or negative.
3.9) The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of New Jersey and the laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of New Jersey with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
3.10) You acknowledge and agree that Upperside Media may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on Upperside Media website, available at https://uppersidemedia.com/terms and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to Upperside Media website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
3.11) You may not use the Upperside Media service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of the State of New Jersey and the United States. You will comply with all applicable laws, rules and regulations in your use of the Service.
3.12) You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Upperside Media.
3.13) You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Upperside Media or Upperside Media trademarks and/or variations and misspellings thereof.
3.14) You understand that your Materials, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.15) Upperside Media recommends, in conjunction with Google Compliance and best practices, the use of SSL Certificates. Upperside Media is not responsible for clients refusal of service and installation of SSL Certificate for security, SEO Rankings, or other impacts that may occur.
3.16) Questions about the Terms of Service should be sent to firstname.lastname@example.org.
4. Upperside Media Rights
4.1) Upperside Media reserves the right to modify or terminate the Service for any reason, without notice at any time.
4.2) We reserve the right to refuse service to anyone for any reason at any time.
4.3) We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the Materials uploaded or posted to a website violate our Terms of Service.
4.4) Verbal or written abuse of any kind (including threats of abuse or retribution) of any Upperside Media employee, member, or officer will result in immediate Account termination.
4.5) Upperside Media does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
4.6) We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Upperside Media employees and contractors may also be Upperside Media customers/clients/users and that they may compete with you, although they may not use your confidential information in doing so.
4.7) In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
4.8) Upperside Media retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, Upperside Media reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
5. Limitation of Liability
5.1) You expressly understand and agree that Upperside Media shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the service.
5.2) In no event shall Upperside Media or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with your website, web hosting, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Upperside Media partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
5.3) Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
5.4) Upperside Media does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
5.5) Upperside Media does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
5.6) Upperside Media does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
6. Waiver and Complete Agreement
6.1) The failure of Upperside Media to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and Upperside Media and govern your use of the Service, superseding any prior agreements between you and Upperside Media (including, but not limited to, any prior versions of the Terms of Service).
7. Intellectual Property and Customer Content
7.1) We do not claim any intellectual property rights over the Materials you provide to the Upperside Media service. All Materials you upload remains yours. You can remove your Upperside Media website or web hosting at any time by emailing email@example.com and requesting deletion of your Account.
7.2) By uploading Materials, you agree: (a) to allow other internet users to view the Materials you post publicly to your website; (b) to allow Upperside Media to store, and in the case of Materials you post publicly, display, your Materials; and (c) that Upperside Media can, at any time, review all the Materials submitted to its Service, although Upperside Media is not obligated to do so.
7.3) You retain ownership over all Materials that you upload to a Upperside Media website and web hosting; however, by making your website public, you agree to allow others to view Materials that you post publicly to your website. You are responsible for compliance of the Materials with any applicable laws or regulations.
7.4) We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any Materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
8. Payment of Fees
8.1) As a client/user/customer of Upperside Media Service, Website Service, or Website Hosting, you agree to pay the Fees applicable to your project and ongoing services and any other applicable fees, including but not limited to fees relating to the design, development, and maintenance of your website, including any/all required third-party license fees to keep website in good working order, referred to as the “Fees”. You also agree to specific payment terms outlined in specific scopes of work outlined by Upperside Media management.
8.2) You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Upperside Media will charge applicable Fees to the credit card account that you authorize (“Authorized Card”), and Upperside Media will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
8.3) Website Hosting Fees, License Fees, and any recurring subscription fees are paid in advance and will be billed in yearly or monthly intervals when requested (each such date, a “Billing Date”). Project Fees and any Other Fees will be charged from time to time at Upperside Media’s discretion. Upperside Media has the right to adjust these fees based on cost of service provided increases. Total increases or decreases not to exceed 10% per year of the monthly value of the subscription. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. Users have approximately fifteen days to bring up and settle any issues with the billing of any Fees. After fifteen days Upperside Media has the right to suspend any/all Services.
8.4) As a client/user/customer of Upperside Media Service, Website Service, or Website Hosting, you agree to Upperside Media strict no-refund policy. At no time is Upperside Media liable to refund fees for any work that has been paid or pre-paid including but not limited to website design and development services, e-commerce design and development services, website hosting services, domain name management services, etc.
8.5) In the event that You fail to pay the Fees applicable to the Service, your project, or any ongoing services or any other application fees within the payment period specified by any invoice which you receive from Upperside Media, a finance charge will be assessed on all past due amount in the lesser of 1% per month (12% per year) or the highest permissible legal rate.
8.6) You agree to pay all costs and expenses Upperside Media incurs to collect any amounts due in connection with the Service, your project or any ongoing services. This includes, subject to any limits under applicable law, Upperside Media’s reasonable attorneys’ fee and Upperside Media’s legal expenses whether or not there is a lawsuit, including reasonable attorneys’ fees and expenses for bankruptcy proceedings and appeals. If not otherwise prohibited by applicable law, You shall pay any court costs, in addition to all other sums provided by law.
9. Cancellation and Termination
9.1) You may cancel your Account at anytime by emailing firstname.lastname@example.org and then following the specific instructions indicated to you in Upperside Media response.
9.2) Upon termination of the Services by either party for any reason:
9.2.1) Upperside Media will cease providing you with the Services and you will no longer be able to access your Account;
9.2.2) unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
9.2.3) any outstanding balance owed to Upperside Media for your use of the Services through the effective date of such termination will immediately become due and payable in full; and
9.2.4) your website and/or web hosting will be taken offline.
9.3) If you purchased a domain name or website hosting through Upperside Media, upon cancellation your domain will no longer be automatically renewed. Following cancellation, it will be your sole responsibility to handle all matters related to your domain with the domain provider and your website hosting with a website hosting provider.
9.4) If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
9.5) We reserve the right to modify or terminate the Upperside Media Service or your Account for any reason, without notice at any time.
9.6) Fraud: Without limiting any other remedies, Upperside Media may suspend or terminate your Account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
10. Modifications to the Service and Prices
10.1) Prices for using the Services are subject to change upon 30 days notice from Upperside Media. Such notice may be provided at any time by posting the changes to the Upperside Media Site (Uppersidemedia.com) or the Upperside Media terms of service.
10.2) Upperside Media reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice.
10.3) Upperside Media shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
11. Third Party Services
11.1) In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Upperside Media partners or other third parties.
11.2) Upperside Media may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including any/all third party themes, plugins, extensions, merchant providers, etc. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through Upperside Media is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them.
11.3) We do not provide any warranties with respect to Third Party Services. You acknowledge that Upperside Media has no control over Third Party Services, and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Upperside Media’s websites, including the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Upperside Media.
11.4) Upperside Media strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs.
11.5) If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Upperside Media is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
11.6) Google Maps is a Third Party Service that is used within the Services. Your use of the Service is subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
11.7) Under no circumstances shall Upperside Media be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if Upperside Media has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Upperside Media partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
12. DMCA Notice and Takedown Procedure
12.1) Upperside Media supports the protection of intellectual property and asks Upperside Media customers/clients/users to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our clients/customers/users is infringing their intellectual property rights, they can send a DMCA Notice to Upperside Media designated agent using our email email@example.com. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the customers/clients/users can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the customers/clients/users from engaging in the infringing activity, otherwise we restore the material.
13. General Data Protection Regulation (GDPR)
13.1) The European Union’s General Data Protection Regulation (GDPR) came into effect on May 25, 2018. The GDPR imposes new obligations and responsibilities on controllers and processors of data. As a Upperside Media customer/client, you are the controller of your customers’/visitors’ data. This means that you collect your customers’ data and choose how it is handled. Additionally, though it is a European regulation, the GDPR might apply to your business if you make goods and services available in Europe, even if you or your business are not located in Europe. As a service provider, Upperside Media follows your instructions on how to handle that data. For more information about the roles of data controller and processor, please see our WordPress GDPR page for more information.
While Upperside Media does what it can to set you up for success, there are also steps you will need to take on your own, and ultimately, compliance with the GDPR is the responsibility of each individual Upperside Media customer/client/user. If you have legal questions specific to your obligations under the GDPR, then please consult with a local lawyer who is familiar with data protections laws.
14. Americans with Disabilities Act (ADA) Compliance
14.1) The Department of Justice’s revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 (ADA) were published in the Federal Register on September 15, 2010. These regulations adopted revised, enforceable accessibility standards called the 2010 ADA Standards for Accessible Design, “2010 Standards.” On March 15, 2012, compliance with the 2010 Standards was required for new construction and alterations under Titles II and III. March 15, 2012, is also the compliance date for using the 2010 Standards for program accessibility and barrier removal.
14.2) As a Upperside Media customer/client, you are the controller of your customers’/visitors’ experience and design standards and level of accessibility. As a service provider, Upperside Media follows your instructions on how to handle that experience, design standard, and access level. Ultimately, compliance with the Americans with Disabilities Act of 1990 (ADA) is the responsibility of each individual Upperside Media customer/client/user. If you have legal questions specific to your obligations under the Americans with Disabilities Act of 1990 (ADA), then please consult with an attorney.
15. Supported Website Browsers
15.1) While Upperside Media makes strong efforts to support the latest website browser versions, there is no guarantee that your existing website will always be compatible with the latest versions.
15.2) Upperside Media strives to comply and meet modern web standards. You acknowledge and agree that Upperside Media websites will be compatible with the latest versions of the following browsers, during development and launch of your new website: Google Chrome, Mozilla Firefox, Microsoft Edge, Apple Safari, Google Chrome on Android, Apple Safari on iOS, Google Chrome on iOS.
15.3) Upperside Media does not support any version of the Microsoft Internet Explorer browser. Microsoft Internet Explorer (IE) is an outdated and insecure website browser that is no longer supported by Microsoft, nor Upperside Media. While Internet Explorer 11 may be available on some newer versions of Windows machines, it has reached its end-of-life and has been replaced by the Microsoft Edge browser. Microsoft Edge has been the default browser on Windows 10 machines since 2015. Numerous company websites have stopped supporting IE11, including Google and Microsoft themselves. Due to the lack of support for IE11 — along with its limited market share and increased development time for backward functionality — Upperside Media does not support IE11 during development. It may be the case that your website will still perform and function well in IE11, however Upperside Media does not explicitly test in IE11.
16. Mutual Respect Between Upperside Media and Clients
16.1) Upperside Media is committed to ensuring respectful behavior between you/your organization and Upperside Media team members. Upperside Media is also requiring the same respect and professionalism in return. A respectful, polite, and professional relationship is the expected baseline for all communications. If either party determines a lack of respect or professionalism; this can result in termination of the project and support of your websites.
16.2) Examples of disrespect causing termination:
16.2.1) Use of threatening or abusive language, profanity or language that is intended to be, or is perceived by others to be, demeaning, berating, rude, threatening, intimidating, hostile or offensive;
16.2.2) Using of epithets, slurs or negative stereotyping
16.2.3) Making threats of violence, retribution, litigation, or financial harm; shouting or engaging in other speech, conduct or mannerisms that are reasonably perceived by others to represent intimidation or harassment
16.2.4) Making comments or engaging in behavior that is untruthful or directed as a personal attack on the professional conduct of others
16.2.5) Or other behavior deemed inappropriate, unprofessional, or qualifies as harassment.
16.3) We know you’ll find Upperside Media team members to be supportive of your project and act in a professional manner at all times, we ask for the same in return.