Terms of Service
Upper Echelon will provide access to certain products, services and/or programs (collectively, hereinafter referred to as “Services”) subject to Client’s acceptance of and compliance with these Terms and Conditions (hereinafter referred to as “Terms and Conditions”) and enrolling through submission of a signed Service Level Assurance Agreement (referred to as “Agreement”) and adhering to the parameters outlined in said Agreement.
Description of Service
Upper Echelon may provide Client with one or more of the following Services or programs depending on the package that Client selects: web site / web page development, search engine marketing, search engine optimization, third party content assistance, email marketing, demographics research, domain name management, web site hosting, maintenance and support, analytics and reporting, social media, brand management, online press release optimization, pay-per-click ad management. Unless explicitly stated otherwise, any new feature that augments or enhances the services shall be considered to be part of the services. Upper Echelon reserves the right to modify, suspend or cancel services offered (or any part thereof), at any time, without notice. Client expressly agrees that Client, or any related third party, shall not hold Upper Echelon or its suppliers liable for any losses, damages or consequences whatsoever from such modification, suspension or discontinuation of the Services.
For purposes of the Agreement, all web pages that are owned, operated or hosted by, or on behalf of, or for Upper Echelon, are referred to herein as the “Upper Echelon Web Sites.” During the Term, Client is authorized to access and use the Upper Echelon Services and Upper Echelon Web Sites and the content therein and data obtained there from solely for internal use to manage Client’s Upper Echelon account(s) for which such content or data directly relates and will not disseminate any of this information to third parties. Client shall not disclose or make available passwords or access codes related to Client’s Upper Echelon accounts. Client agrees that Client will not use any automated means, including agents, robots, scripts, or spiders, to access or manage Client’s account with Upper Echelon or to monitor or copy the Upper Echelon Web Sites or the content contained therein except those automated means expressly made available by Upper Echelon, if any, or authorized in advance and in writing by Upper Echelon.
To access the Upper Echelon Services or Upper Echelon Web Sites Client may be asked to provide certain registration details or other information. It is a condition of Client’s use of the Services or access to the Upper Echelon’ web sites that all the information Client provide on this site will be correct, current, and complete. If Upper Echelon believes the information Client provide is not correct, current, or complete, Upper Echelon has the right to refuse Client access to any Upper Echelon Web Sites or Services or any of its resources, and to terminate or suspend Client’s account at any time.
Client agrees to pay Upper Echelon the service fee, for any Service Client enrolls in, pursuant to the terms of the Agreement, including, without limitation, all applicable taxes, if any, in accordance with the billing terms in effect at the time the service fee becomes payable. Client expressly understands, acknowledges and hereby authorizes Upper Echelon to automatically charge Client’s credit card or debit Client’s bank account once a month.
If Upper Echelon is unable to process service fees to Client’s credit card, successfully complete a bank draft, or transfer said fees in acceptable alternative manner, Upper Echelon may in its discretion charge a late fee of 1.5% of the amount due, plus incurring interest at the rate of 20% per month (or the maximum amount permitted by law, whichever is less) from the date such payments were originally due. Upper Echelon also reserves the right to pursue alternative means of payment up to and including debt collection services and customer shall be liable for all collection costs, including without limitation, attorneys’ fees. Upper Echelon reserves the right to charge a service fee per account up to but not limited to $250 for non-payment or charge backs, and up to and $100 per incident for insufficient funds.
If for any reason, Client is not entirely satisfied with the Program(s), Client may cancel the Services at any time, by forfeiting the entire amount due on the remaining term of the Agreement. Written cancel requests must be submitted to Upper Echelon, 7322 Southwest Freeway, Suite 1900 – Houston, TX 77074 via certified mail, on company letterhead and signed by the original authorizing party. Cancellation requests will only be processed with submission of an appropriate billing method for the full amount due. Depending on the prevailing laws, on a state by state basis, Agreements will automatically renew for subsequent equal time commitments to the previously defined Agreement authorized by Client if Client has not mailed a written request to cancel thirty (30) prior to scheduled expiration of Agreement. Upon processing of final payment and termination of Agreement, no further charges will be assessed to Client’s account from the verified date of cancellation forward. No refunds shall be made for any reason; it is Client’s responsibility to proactively cancel the Services if, at any time, Client wishes to discontinue service. All amounts owed for services rendered prior to the verified cancellation date must be paid in full. There will be no prorating for partial months throughout the Agreement. Due to account security and privacy concerns, all billing related questions and cancellation requests MUST be made in writing or via email by the original authorizing party. For security and training purposes, all calls inbound and outbound through Upper Echelon corporate offices are digitally recorded.
Payment Collection Policy
As Upper Echelon provides a bill-through service for sponsored listings, the company takes a significant credit risk for each and every Client. Therefore, Client is responsible to maintain an active and valid payment method on file at all times. If for any reason, Client’s payment method is not available, Upper Echelon reserves the right to immediately and temporarily turn off the web site, pay-per-click ads, sponsored listings and ongoing or then current production, reporting, or support Services being provided to Client account. If the payment is not received, Upper Echelon reserves the right to terminate the Agreement in full and retain ownership of the web site, or other Services rendered or provided, until such time the account has been paid in full. All terminations will result in an escalation of all fees owed under the Agreement, including if Client Services are terminated for failing to maintain payments in accordance with the terms of the Agreement. It is strongly recommended that Clients maintain multiple forms of payment on file to prevent problems with payment receipt.
Representations and Warranties
Client represents, warrants and covenants that (i) Client has sufficient authority to enter into the Agreement; (ii) Client is a business, not a consumer, and that Client’s use of Upper Echelon’ Services is solely for lawful commercial and business purposes; (iii) Client has the necessary rights to provide all information provided under the Agreement for use as described in the Agreement, and that all such information and all claims, statements, products and services contained or referenced therein and any web site to which it links: (a) do not violate any law, statute, ordinance, treaty or regulation or Pop Lab’s policy or guideline; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information; and (g) comply with the applicable Agreement and Terms and Conditions; and (iv) comply with all laws regarding unsolicited electronic messages (including without limitation, the CAN-SPAM Act of 2003 and Client will not engage in any form of spamming or other impermissible marketing activities through any Upper Echelon Services provided.
Electronic Signatures Effective
The Agreement is an electronic contract that sets out the legally binding terms of Client’s use of the Services, including, without limitation, Upper Echelon’ programs, Services and access to Upper Echelon employees or resources. Client indicates Client’s acceptance of the Agreement and all of the terms and conditions contained or referenced in the Agreement and these Terms and Conditions by clicking an “I Accept” button in connection with Client’s enrollment, by signing the digital signature through the online enrollment, or by faxing their signature acceptance. This action creates an electronic signature that has the same legal force and effect as a handwritten signature (“Acceptance”). Acceptance indicates the Client accepts the Agreement, including without limitation the Services being offered, agrees to the Terms and Conditions, and agrees that all other verbal discussions or agreements are void and unenforceable. Acceptance indicates the Client also consents to have the Agreement provided and stored in electronic form. Client may request a non-electronic copy of the Agreement either before or after Acceptance. To receive a non-electronic copy of the Agreement, please send a letter and self-addressed stamped envelope to: Chief Privacy Officer, Upper Echelon, 7322 Southwest Freeway, Suite 1900 – Houston, TX 77074
Client will indemnify and hold Upper Echelon, its subsidiaries, affiliates, content providers, service providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) harmless from any breach of these Terms and Conditions or the applicable Agreement by Client, including any use of content and third-party content developed by Upper Echelon other than as expressly authorized in these Terms and Conditions. Client agrees that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and Client agrees to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Indemnified Parties in connection therewith. Client will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of Client’s use of the information accessed through Upper Echelon Services.
Trademarks, service marks, and logos appearing in this site are the property of Upper Echelon or the party that provided the trademarks, service marks, and logos to Upper Echelon. Upper Echelon and any party that provided trademarks, service marks, and logos to Upper Echelon retain all rights with respect to any of their respective trademarks, service marks, and logos appearing in this site. Client represents that any service marks, logos, images, or trademarks submitted to Upper Echelon are owned or licensed legally by Client for said use on or with Services provided by Upper Echelon.
Any passwords used for Services provided by Upper Echelon, or for access to a web site owned by Upper Echelon, are for individual use only. Client will be responsible for the security of Client’s password (if assigned). Upper Echelon will be entitled to monitor Client’s password and, at its discretion, require Client to change it. If Client uses a password that Upper Echelon considers insecure, Upper Echelon will be entitled to require the password to be changed and/or terminate Client’s account. Client will notify Upper Echelon immediately if Client believes that the security of Client’s account has been compromised. Upper Echelon AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR LOSSES OR DAMAGES RESULTING FROM ANY SECURITY BREACHES.
Client is prohibited from using any Services provided by Upper Echelon to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If Client becomes involved in any violation of system security, Upper Echelon reserves the right to release Client’s details to system administrators at other sites in order to assist them in resolving security incidents. Upper Echelon reserves the right to investigate detected violations of these Terms and Conditions.
Upper Echelon reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Upper Echelon to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms and Conditions. BY ACCEPTING THIS AGREEMENT CLIENT WAIVES AND HOLD HARMLESS Upper Echelon FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Upper Echelon DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER Upper Echelon OR LAW ENFORCEMENT AUTHORITIES.
The material and content accessible from Client’s web site, this site, and any other web site owned, operated, licensed, or controlled by Upper Echelon (the “Content”) is the proprietary information of Upper Echelon or the party that provided the Content to Upper Echelon, and Upper Echelon or the party that provided the Content to Upper Echelon retains all right, title, and interest in the Content. Accordingly, the Content may not be copied, distributed, republished, uploaded, posted, or transmitted in any way without the prior written consent of Upper Echelon, except that Client may print out a copy of the Content solely for Client’s internal use. In doing so, Client may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content. Modification or use of the Content except as expressly provided in these Terms and Conditions is prohibited. Neither title nor intellectual property rights are transferred to Client by access to the Services or Upper Echelon’ web sites. Client is expressly prohibited, directly or indirectly through any third party, from any of the following: (i) copying, modifying, creating a derivative work of, reverse engineering, reverse assembling or otherwise attempting to discover the source code of any software pertaining to the Services or Upper Echelon’ web sites; (ii) renting, leasing, selling, assigning, transferring, sublicensing, re-licensing, granting a security interest in, or gaining unauthorized access to the Services or Upper Echelon’ web sites; and (iii) accessing the Services or Upper Echelon’ web sites by any means other than through the interface that is provided by Upper Echelon for use in accessing the Services or Upper Echelon’ web sites. Theft of Content from any site owned, operated, licensed, or controlled by Upper Echelon will be pursued through all legal remedies for the full value of the Services, damages, and attorney’s fee where viable by local and state laws. The use of any of the Services provided by Upper Echelon or Upper Echelon’ web sites shall in no way be construed by any user as granting or conferring upon them any intellectual property rights whatsoever.
This site or any site owned, operated, licensed, or controlled by Upper Echelon may be hyper-linked to other external sites that are not maintained by, or related to, Upper Echelon. Hyper-links to such sites are provided as a service to users and are not sponsored by or affiliated with this site or Upper Echelon. Upper Echelon has not reviewed any or all of such sites and is not responsible for the content of those sites. Hyper-links are to be accessed at Client’s own risk, and Upper Echelon makes no representations or warranties about the content, completeness or accuracy of these hyper-links or the sites hyper-linked to this site. Further, the inclusion of any hyper-link to a third-party site does not necessarily imply endorsement by Upper Echelon of that site.
Information Client Provides
Client may not post, send, submit, publish, or transmit in connection with Services provided by Upper Echelon any material that:
Client does not have the right to post, including proprietary material of any third party;
advocates illegal activity or discusses an intent to commit an illegal act;
is vulgar, obscene, pornographic, or indecent;
does not pertain directly to the Services provided by Upper Echelon;
threatens or abuses others, libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive;
seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
violates any law or may be considered to violate any law;
impersonates or misrepresents Client’s connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
includes programs which contain viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via this site;
amounts to a ‘pyramid’ or similar scheme;
disobeys any policy or regulations established from time to time regarding use of Services or any site owned, operated, licensed, or controlled by Upper Echelon; or
Contains hyper-links to other sites that contain content that falls within the descriptions set forth above.
Upper Echelon reserves the right to monitor use of this site or Services provided by Upper Echelon to determine compliance with these Terms and Conditions, as well the right to remove or refuse any Submission for any reason. Notwithstanding these rights, Client remains solely responsible for the content of Client’s submissions. Client acknowledges and agrees that Upper Echelon will not assume or have any liability for any action or inaction with respect to any Submission.
Communications from Upper Echelon
Client agrees to receive all communications from Upper Echelon, whether via telephone, facsimile, or e-mail, and expressly agree not to consider any such communication(s) as unsolicited. Refusal to receive such communications from Upper Echelon will constitute grounds for termination of the Agreement and deactivation of Client’s Services.
Termination for Cause
Upper Echelon and its suppliers reserve the right to immediately terminate the Agreement and deactivate Client’s account, web site, access to Services, Services or access to Upper Echelon’ web sites if they believe, in their sole and absolute discretion, that Client has: (i) violated, or threaten to violate, the terms of the Agreement; or (ii) created, or are creating, web sites as a nuisance or in a deliberate attempt to degrade or otherwise interfere with the Services, Upper Echelon brand name, trademark, copyright, or Upper Echelon’ web sites. Any Client or user who is terminated for cause under this section hereby agrees to forfeit any and all rights, claims and/or causes of action against Upper Echelon and its suppliers, including without limitation Client’s rights to any refunds or for any losses, expenses, damages or costs incurred as a result of such termination and deactivation.
Copyright, code structure, processes, and imagery related to the finished web site or Services produced by Upper Echelon will be owned by Client. Failure to pay for Services rendered, in full along with any additional fees or charges, failure to adhere to the terms of the Agreement or these Terms and Conditions, will negate the Client ownership of the web site or Services provided by Upper Echelon. Upper Echelon reserves the right to temporarily or permanently terminate Client access to Services or web site, and to create a landing page or place holder, or to resell or repossess web site or other Services rendered or provided, for failure to pay for Services as per the terms of the Agreement and these Terms and Conditions. Domain transfer requests must be initiated by the Client to Upper Echelon in writing. At end of Agreement and upon cancellation, if Client wishes to transfer web site or Services, they must notify Upper Echelon in writing, must pay for all Services in full, and must handle the transfer themselves or through a third party provider. Any assistance in the transfer or site modifications will be billed at the then applicable rates and must be pre-paid for the estimated time frame of completion. Client requests to cancel web site or Services will automatically be treated as authorization to bill for said web site or Services, and full for the total amount of the Agreement, unless otherwise agreed upon writing by both parties. Please note that site design and editing, as well as hosting and site features are dependent on the skill set of the designer, the licensed tools and software they have access to, and their individual capabilities; Upper Echelon does not warranty the Services or web site will work post termination or cancellation, or even on install on a newly assigned hosting provider’s server or internal network. Rights to photos, graphics, source code, processes, intellectual property, licenses, inventions, work-up files, and computer programs are specifically not transferred to the Client, and remain the property of Upper Echelon, even if they are derivative of work being performed in conjunction with Services being rendered by Upper Echelon to the Client. Upper Echelon retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios. The web site or Services may contain a copyright/legal statement with a link to Upper Echelon services and corporate web site. Client assumes all liability for licensing the proper technology, and imagery, for the site to operate properly outside of Upper Echelon designated hosting environment; and Upper Echelon will not be responsible for any intellectual property claims by or form a third party at anytime.
Client and Upper Echelon mutually agree that they will not directly, or indirectly, knowingly solicit an employee, sales agent, customer, affiliate, or investor of the other parties involved in the provision of web site or Services and/or contracted to work by either party in any capacity (whether that be as a 1099 contractor, a W2 earning employee, or any other vendor or resource). Both Upper Echelon and the Client agree that any recruitment (or discussions to enter into an employment, investment, or client / provider relationship), of said contractor, affiliate, agent, employee or resource, by Client, will immediately be cause for full escalation of all fees and monies due for Services due under the Agreement, for the full term of the Agreement. Additionally Client agrees ANY attempted recruitment of an agent, resource, employee, vendor, contractor, or affiliate of Upper Echelon will result in a fee of twenty-five percent (25%) of that resource’s annualized income, due to the costs of training, recruiting, and replacement of said resource. This Non-Circumvention portion of the Terms and Conditions shall survive for a period of two (2) years past the expiration of the Agreement, Terms and Conditions, or final rendering of any and all Services.
Upper Echelon shall not be liable or deemed to be in default under this Agreement for any delay or failure to perform resulting from (a) accidents, fire, labor disputes, epidemics, war, terrorist acts, riots, insurrections, power blackouts, acts of nature or causes beyond its reasonable control without its fault or negligence, (b) acts or omissions of the other Party or of a third Party (other than the non-performing Party’s own agents or contractors), or (c) compliance with any law, regulation, ruling, order or requirement of any federal, state or municipal government or agency or court of competent jurisdiction (a ‘Force Majeure Condition’).
Upper Echelon will impose the following data limitations on email and bandwidth provided by Upper Echelon through its products and services offering.
No unauthorized streaming of audio or video services
10 GB monthly bandwidth
25 GB monthly bandwidth at $999 and above
Limitations of Liability
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT Upper Echelon AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO CLIENT 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 (EVEN IF Upper Echelon HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.