Updated February 1st 2023
ARBITRATION AND WAIVER OF CLASS ACTION NOTICE. THESE TERMS CONTAIN IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES ALL DISPUTES TO BE RESOLVED BY BINDING ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND A WAIVER OF RIGHTS TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE SEE SECTION 22 - DISPUTE RESOLUTION AND ARBITRATION AND SECTION 23 - WAIVER OF CLASS ARBITRATION OR ACTIONS BELOW.
By agreeing to these Terms, You represent and warrant to Us that if You are an individual: (a) You are at least 18 years old; (b) You are not currently and have not previously been suspended or otherwise removed from the Service; and (c) Your registration and Your use of the Service is and will remain in compliance with any and all applicable laws and regulations at all times. If You are an entity, organization, or company, the individual accepting these Terms on Your behalf represents and warrants that they have authority to agree and bind You to these Terms.
3.1 "Affiliates" means an entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party of this Agreement, by way of majority voting equity ownership.
3.2 "Merchant Data" means all electronic data or information submitted by the Merchant and stored by the Service.
3.3 "Documentation" means the reference, administrative, and user manuals which are published by UPSELL WIZARD and provided by UPSELL WIZARD to Merchant with the Service, which may be updated from time-to-time, but excluding any sales or marketing materials.
3.4 "Electronic Communications" means any transfer of signs, signals, text, images, sounds, data, or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
3.5 "Initial Term" means the first month, excluding any renewal terms.
3.6 "Registration Process" means the process in which the Merchant creates an account by providing the Merchant's information and login information on the UPSELL WIZARD website and clicking the "Create my account" button at the bottom of the page.
3.7 "Plan" means the specific details of the Service chosen at the stated price through the Registration Process.
3.8 "Term" means the Initial Term of one month that begins after the trial period of 7 days and any renewal terms.
3.9 "3rd Party Applications" means online, Web-based applications or services and offline software products that are provided by 3rd parties, and interoperate with the Service.
3.10 "Customer" means any individual, person, persons, or business entity that purchases products or services from the Merchant and utilizes the Service to facilitate payment to the Merchant.
3.11 "Monthly Fees" means the set fee that the Merchant agreed to pay each month by completing the Registration Process.
3.12 "Upgrade" means the Merchant changes the Merchant's existing Plan to a new Plan that provides for additional Views at an increased price.
3.13 "View" A Customer receives a pop-up, full-screen visual, or any other prompt to purchase additional products from any custom upsell created by the Merchant.
4. General Terms of Access to the Service.
4.1 UPSELL WIZARD Service Overview.
UPSELL WIZARD provides You, as a Merchant, with certain hosted software to create upsell and cross-sell funnels to present offers to Customers based on the products or variants they view or select. You are solely responsible for all of the terms and conditions of the transactions conducted with Customers, including, without limitation, terms regarding payment, subscriptions, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, text messaging (if applicable), title and licenses, all of which must be in accordance with applicable law.
4.2 The Plan.
UPSELL WIZARD offers several Plan options that the Merchant can choose from during the Registration Process. Each Plan provides a limit on the maximum Views the combined Customers of the Merchant can receive. As the Views begin to approach the upper limit of the Plan, the Merchant will receive notifications that the maximum number of Views is approaching. When the maximum number of Views are reached for the Plan, additional Views will be disabled unless the Merchant chooses to Upgrade. If the Merchant does not Upgrade the Plan, the views will be reenabled at the commencement of the new Term.
4.3 Referral Program.
As compensation for the successful referral of new Merchants who complete the Registration Process for a paid Plan, the referring Merchants who make said successful referrals will receive a 20% payment of the net payment received by UPSELL WIZARD from the new Merchant after UPSELL WIZARD has deducted any fees incurred in providing the Service. Said payments will be ongoing for as long as the new Merchant maintains a paid account with UPSELL WIZARD. Any such payments will be transferred to the Merchant via Paypal.
4.4 Limited License.
License. Subject to the terms of this Agreement and payment of the applicable fees, you are granted a limited, non-exclusive, non-transferable, non- sublicensable, revocable license during the Term (as defined in Section 3.8 - Term) to use the Service subject to the terms, conditions and restrictions set forth in these Terms and any other restrictions stipulated to you in the Agreement or by us in writing. Except and solely to the extent such a restriction is impermissible under applicable law, You may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service, except as expressly permitted or directed by UPSELL WIZARD; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. For the avoidance of doubt, if You are prohibited under applicable law from using the Service, You may not use it.
4.5 Commencement of Term and Registration.
Registration. The Term of this Agreement shall commence as of the date you first register for, access or use the Service, and shall continue until terminated as set forth in Section 14 - Termination With or Without Cause, Expiration. When You register for an account, You will be required to provide Us with information about Yourself, such as Your name, email address, store URL, or other contact information. You agree that the information You provide to us is accurate, current, and complete and that You will keep it accurate, current, and complete at all times. When You register, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password, and You accept responsibility for all activities that occur under Your account. If You believe that Your account is no longer secure, then You must immediately contact us.
4.6 Merchant Must Have Internet Access.
Access. DSL, cable, or another high-speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect your network to the Service, including, but not limited to, "browser" software that supports protocols utilized by the Service. UPSELL WIZARD assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by UPSELL WIZARD.
4.7 Accuracy of Merchant's Contact Information
Information. You shall provide UPSELL WIZARD with accurate, current and complete information on your legal business name, address, email address, and phone number, and, throughout your subscription, you shall maintain and promptly update this information if it should change. The Merchant shall provide verification of the information provided, both initially and with any update to that information. The Merchant's failure to provide accurate and updated contact information and to verify that information may result in a freeze placed on the Merchant's account by UPSELL WIZARD. In the event that UPSELL WIZARD must impose a freeze on the Merchant's account under the circumstances stated in this provision, UPSELL WIZARD shall not be held liable for any resulting damages to the Merchant or any of its Customers resulting from the Merchant's account being frozen.
4.8 Merchants: Passwords, Access, and Notifications.
Your login information may be reassigned between employees of the Merchant as needed. The Merchant shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and any loss, theft, or unauthorized use of any Merchant password or name and/or the Service account numbers. UPSELL WIZARD is not liable for any harm caused by or related to the theft of Your IDs, Your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Also, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify UPSELL WIZARD of any unauthorized use of your account or any breach of security known to You. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
4.9 Use of the Service.
The Merchant is responsible for all activities conducted by its employees, its employees' Electronic Communications and for its employees' compliance with this Agreement, including the content of all Merchant Data.
4.11 Agreement to Pay Fees.
You agree to pay for the Service in accordance with Our service fees, as further set forth below in Section 8 - Payment Terms; Taxes, and Your Plan.
4.12 Billing Data Retention.
Following any termination or expiration of this Agreement or your UPSELL WIZARD account, UPSELL WIZARD will retain a copy of your billing data for a minimum period of thirty (30) days. You acknowledge and agree that (i) You are solely responsible for exporting a copy of Your billing data prior to any such termination or expiration and (ii) if You require access to such data following any such termination or expiration, You may be required to pay professional service fees to UPSELL WIZARD to retrieve such data.
5.1 Confidential Information
Information. For purposes of this Agreement, "Confidential Information" shall include Merchant Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a 3rd party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party's Confidential Information; or (6) is aggregate data regarding use of UPSELL WIZARD's services that do not contain any personally identifiable, Merchant-specific information.
5.2 Non-Disclosure Obligations.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a "need-to-know" basis. Either party may disclose Confidential Information on a "need-to-know" basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
6. Ownership of Business
7. Payment Terms; Taxes.
7.1 Payment Terms.
If you subscribe to the Service, for all charges associated with the Service, Shopify or the relevant e-commerce platform hosting Your store(s) will bill the credit card or bank account that you provided for such purpose. You agree to provide Shopify or the relevant e-commerce platform hosting Your store(s) with accurate and complete billing information, including valid credit card or bank account information, Your name, address and telephone number, and to provide Shopify or the relevant e- commerce platform hosting Your store(s) with any changes in such information within 30 days of said change taking effect. Shopify or the relevant e-commerce platform hosting Your store(s) will charge you a fee based on Your selected UPSELL WIZARD Plan. Monthly charges for the Service will be at the rates set forth by the Service type and agreed upon by you in the Registration Process when you select your preferred Plan. UPSELL WIZARD reserves the right to adjust the price of each Plan at any time We so choose. Merchants who completed the Registration Process prior to any price change and who have continued an active account for the Service will continue to receive the Service at the price charged at the time of Their completion of the Registration Process regardless of any change in pricing policy. If the Merchant completes the Registration Process and discontinues Their subscription to the Service at any time, the Merchant will be charged the listed price at the time the Merchant completes a new Registration Process.
Prices established in the Agreement, and in any schedule, exhibit, or related agreement hereto, are exclusive of taxes and other fees which may be imposed on UPSELL WIZARD or You for the provision or use of the Service. You agree that until Your subscription to the Service is terminated, You will continue to accrue charges for which You remain responsible, even if You do not use the Service.
7.2 Timing of Charges.
Charges. Your credit card or bank account will be charged automatically on a recurring monthly basis as payment for the use of the Service. Said charges will be processed on the day that the Merchant typically pays recurring charges to Shopify in accordance with Shopify's Terms of Service and will be included in Shopify's total billing. Such fees will continue to be charged until the Merchant removes the application from the Merchant's Shopify account. UPSELL WIZARD provides the option for a free Plan. If the Merchant selects the free Plan during the Registration Process or at any time subsequent to the Registration Process, the Merchant will not be billed at any time for the use of the Service until such point that the Merchant selects a paid Plan. Upon the Merchant's selection of a paid Plan, the Merchant will receive recurring monthly charges in the amount specified under the specific Plan chosen by the Merchant in accordance with this Section.
7.3 Credit Card Company/Banking Institution Refusal to Pay.
If, for any reason, your credit card company or banking institution refuses to pay the amount billed for the Service, You agree that We may, at our option, suspend or terminate your subscription to the Service. It will be the responsibility of the Merchant to make a successful payment in order for the Merchant's use of the Service to be reinstated.
7.4 Liability for Fraudulent Actions.
UPSELL WIZARD is not liable for any losses relating to fraudulent charges by You or Your Subscribers that are deceptive or fraudulent ("Fraudulent Actions"). By using the Service, you hereby release UPSELL WIZARD from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify UPSELL WIZARD of any Fraudulent Actions which may affect the Service. UPSELL WIZARD reserves the right, in its sole discretion, to terminate Your account if you engage in, or permit any of the Merchant's Subscribers to engage in, Fraudulent Actions.
7.5 Liability for Chargebacks Not Resulting from Fraudulent Actions.
UPSELL WIZARD is not liable for any losses relating to chargebacks or otherwise invalid transactions. By using the Service, you hereby release UPSELL WIZARD from any liability arising from chargebacks or otherwise invalid transactions. You will also use best efforts to promptly notify UPSELL WIZARD of any chargebacks or otherwise invalid transactions which may affect the Service.
All fees payable under the applicable Plan are exclusive of and do not include taxes or duties of any kind. You will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or your receipt or use of the Service, excluding taxes based on UPSELL WIZARD's gross or net income. If the Merchant is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, the Merchant will provide UPSELL WIZARD with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
8. Service Use and Limitations.
8.1 Continuation of Service.
We will make reasonable efforts to keep the Service operational 24 hours a day for 7 days a week, except for planned downtime (of which We will use reasonable efforts to provide at least 72 hours prior notice).
8.2 Affirmation of Legal Use of the Service.
You represent, warrant, and agree that You will only use the Service in compliance with all applicable laws and regulations, and that You will not use the Service to violate, infringe, or misappropriate any intellectual property or other proprietary right of any 3rd party (including, without limitation, any rights of privacy or publicity).
9. 3rd Party Products & Services.
The Service may provide You with access to, be integrated with, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by 3rd parties (collectively, "3rd Party Products or Services"). 3rd Party Products or Services are not under UPSELL WIZARD's control, and You acknowledge that UPSELL WIZARD is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such 3rd Party Products or Services. You shall comply with all 3rd party terms, and shall indemnify and hold UPSELL WIZARD harmless from all damages, costs, settlements, attorneys' fees and expenses arising from or related to your breach of any 3rd party terms. Any provision by UPSELL WIZARD of 3rd Party Products or Services, and any exchange of data between You and any 3rd party provider of 3rd Party Products or Services, is solely between You and the applicable 3rd party provider. If You install or enable 3rd Party Products or Services for use with the Service, You agree that UPSELL WIZARD may allow such 3rd Party Products or Services to access Merchant Data as required for the interoperation of such 3rd Party Products or Services with the Service, and any exchange of data or other interaction between You and a 3rd party provider is between you and such 3rd party provider. The continued availability of the 3rd Party Products or Services is subject to the continued effectiveness and terms of the contract between UPSELL WIZARD and the 3rd party provider.
10. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. UPSELL WIZARD AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
UPSELL WIZARD MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH 3rd PARTY INFRASTRUCTURES WHICH ARE NOT UNDER UPSELL WIZARD'S CONTROL (SUCH AS A 3rd PARTY'S SERVERS). UPSELL WIZARD MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH 3rd PARTY INFRASTRUCTURES.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UPSELL WIZARD OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11. Limitation of Liability.
Your exclusive remedy and our entire liability, if any, for any claims arising out of the Agreement and Your use of the Service shall be limited to the amount you paid Us in Monthly Fees for the Service during the ONE-MONTH PERIOD concurrent with the act giving rise to the liability. Under no circumstances will our liability be greater than the Monthly Fees associated with that SINGLE MONTH.
EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. Modification and/or Amendment and Suspension of Service.
12.1 Modification/Amendment of Service
Service.We reserve the right to either modify or amend the Service, including any features therein, at any time WITHOUT NOTICE to You. We shall not be liable to You or any 3rd party should We exercise such rights. If You don't agree with the modified and/or amended Agreement, You have the right to reject it; however, such a rejection shall constitute an immediate termination of the Agreement as well as Your right to continued use of the Service. If You use the Service in any way subsequent to a modification and/or amendment to this Agreement having become effective, such use constitutes Your agreement to all modifications and/or amendments. Except for modifications or amendments to this Agreement made by UPSELL WIZARD in accordance with this Section, no other modification or amendment of this Agreement shall be effective unless in writing and signed by both you and UPSELL WIZARD.
12.2 Suspension of Service.
UPSELL WIZARD may suspend all or any part of the Service at any time, with or without reason, including, without limitation, for failure to make a timely payment for the Service in accordance with this Agreement. You acknowledge that the operation of the Service may encounter technical or other problems on occasion and may not necessarily continue uninterrupted or without technical or other errors. UPSELL WIZARD shall not be liable to You or others for any such interruptions, errors, or problems or an outright discontinuance of the Service. UPSELL WIZARD has no obligation to continue producing or releasing new versions of the Service. You agree to use the Service only through Your website or software application that You own and control (the "Site") and We reserve approval authority as to the implementation and use of the Service on the Site. We may suspend or rate limit the Service in the event We find any implementation issues with the Site. Such suspension or limitation shall remain in effect until you correct any issues specified by UPSELL WIZARD and a suspension or rate limitation shall not relieve You of Your payment obligations under the Agreement.
13. Termination With or Without Cause, Expiration.
UPSELL WIZARD may terminate this Agreement at any time, in whole or in part, for any reason (including, without limitation, for your breach of this Agreement, violation of applicable law, violation of card association rules or regulations, or the threatening or filing of a lawsuit against UPSELL WIZARD) upon notice to the Merchant. The Merchant may terminate this Agreement at any time, in whole or in part, for any reason by uninstalling the application from Your Shopify store. Upon termination or expiration of this Agreement for any reason, the Merchant shall have no rights to continue use of the Service. If this Agreement is terminated as a result of the Merchant's material breach of this Agreement, UPSELL WIZARD shall be entitled to all of the Fees due under this Agreement for the entire Term.
14. Merchant Responsibilities.
The Merchant will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including, without limitation, those related to privacy, electronic communications, and anti-spam legislation. The Merchant will not: (a) Sell, lease, license or sublicense the Service; (b) introduce into or transmit through the Service any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs; (c) transmit or store infringing material in the Service; (d) send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted, or transmitted in any form or by any means. The Merchant agrees not to access the Service by any means other than through the interfaces that are provided by UPSELL WIZARD. The Merchant shall not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies.
15. Transmission of Data.
The Service allows the Merchant to send Electronic Communications directly to UPSELL WIZARD and to 3rd parties. The Merchant understands that the technical processing and transmission of the Merchant's Electronic Communications is fundamentally necessary to use of the Service. The Merchant expressly consents to UPSELL WIZARD's receipt and storage of Electronic Communications and/or Merchant Data, and the Merchant acknowledges and understands that the Merchant's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by UPSELL WIZARD. The Merchant further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. UPSELL WIZARD uses encryption in various locations and methodologies within the Service and the infrastructure working behind it. Merchant Data is encrypted while in transit to and from the Service; however, UPSELL WIZARD is not responsible for any Electronic Communications and/or Merchant Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by UPSELL WIZARD, including, but not limited to, the Internet and the Merchant's local network.
16. Support Services.
Support services used by the Merchant will be performed in accordance with UPSELL WIZARD's customary practices for the level of services purchased. You agree that UPSELL WIZARD does not require express permission to access your account for the purpose of administering support services. Typically, UPSELL WIZARD's support team will ask to access your account; however, by entering into this Agreement, UPSELL WIZARD is not legally required to do so and may access Your account at any time in order to facilitate implementation. UPSELL WIZARD is not responsible, and will not be liable, for the Merchant's configuration decisions or the Service's ability to allow the Merchant to comply with all laws and regulations in the Merchant's unique circumstances.
17. Intellectual Property Rights.
17.1 UPSELL WIZARD's and 3rd Party Providers' Intellectual Property.
You agree that all rights, title, and interest in and to all intellectual property rights in the Service and Documentation (including all updates, enhancements and derivative works thereof and thereto) are owned exclusively by UPSELL WIZARD or its licensors. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to You does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. As between the parties, UPSELL WIZARD owns all intellectual property and other proprietary rights to the Service, including, but not limited to, the design, artwork, logos, functionality, and documentation relating thereto (collectively, the "UPSELL WIZARD Property"). In addition, UPSELL WIZARD shall have a royalty-free, worldwide, transferable, sub- licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by You relating to the operation of the Service. Any rights not expressly granted herein are reserved by UPSELL WIZARD. UPSELL WIZARD service marks and trademarks, logos, and product and service names are marks of UPSELL WIZARD (the "UPSELL WIZARD Marks"). You agree not to display or use the UPSELL WIZARD Marks in any manner without UPSELL WIZARD's express prior written permission. The trademarks, logos and service marks of 3rd Party Providers ("Marks") are the property of such 3rd parties. You are not permitted to use these Marks without prior written consent of such 3rd party who may own the Marks.
17.2 UPSELL WIZARD Marketing and Merchant's Intellectual Property Rights
By completing the Registration Process to use the Service, the Merchant agrees that UPSELL WIZARD has the right to use the Merchant's name, trademarks, logos, and service marks for any marketing purposes, including, but not limited to, informing the general public of the Merchant's use of the Service.
17.3 Copyright Infringement
UPSELL WIZARD respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Merchants who repeatedly infringe others' rights. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide the following information to UPSELL WIZARD's copyright agent:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Information reasonably sufficient to permit Us to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
- Identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit Us to locate the materials;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C.A. § 512(c), Our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of Merchants about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
9452 Telephone Rd. #140
Ventura, CA 93004
17.4 Termination for Copyright Infringement
You acknowledge and agree that, upon receipt of a notice of a claim of copyright infringement, We may immediately cancel your UPSELL WIZARD account without liability to You or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
18.1 Merchant's Indemnity.
You agree, at your own expense, to indemnify, defend, and hold harmless UPSELL WIZARD, its licensors and their respective directors, officers, employees, and agents from and against all demands, liabilities, losses, claims, and expenses, including, but not limited to, attorneys' fees and disbursements, arising out of (i) Your or any authorized or unauthorized 3rd party's use of the Service, (ii) 3rd party claims, actions, or allegations of infringement based on information, data, or content You submitted in connection with the Service, (iii) any fraud or manipulation, or other breach of this Agreement by You, (iv) 3rd party claims, actions, or allegations brought against UPSELL WIZARD arising out of Your use of the Service, or (v) for any claim whatsoever resulting from You or Your Affiliates', employees', contractors', or agents' breach of the Children's Online Privacy Protection Act (COPPA) or the Health Insurance Portability and Accountability Act (HIPAA) or any other state or federal medical privacy or electronic privacy laws. UPSELL WIZARD reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.
18.2 Indemnification Procedures and Survival.
In the event of a potential indemnity obligation under this Section, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party's compliance with this Section. The indemnification obligations contained in this Section shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.
19. Suspension; Discontinuation of Service.
19.1 Suspension for Delinquent Account.
UPSELL WIZARD reserves the right to suspend Your, and any of Your Affiliates', access to and/or use of the Service for any accounts for which payment is due but unpaid without notice. You agree that UPSELL WIZARD shall not be liable to You or to any of Your Affiliates or other 3 rd party for any suspension of the Service pursuant to this section.
19.2 Suspension for Ongoing Harm.
You agree that UPSELL WIZARD may suspend access to the Service at any time and WITHOUT NOTICE if UPSELL WIZARD reasonably concludes that Your use of the Service: (i) is being used to engage in denial of service attacks, spamming, or illegal activity; or (ii) is causing immediate, material and ongoing harm to UPSELL WIZARD or others. In the extraordinary event that UPSELL WIZARD suspends Your access to the Service, UPSELL WIZARD will use commercially reasonable efforts to resolve the issues causing the suspension of Service. You further agree that UPSELL WIZARD will not be liable to you or any 3 rd party for any suspension of the Service under such circumstances as described in this Section.
UPSELL WIZARD reserves the right, IN IT'S SOLE DISCRETION, to tender a refund to the Merchant. UPSELL WIZARD will not be obligated to provide a refund under any circumstances. Furthermore, under no circumstances will any refund amount provided by UPSELL WIZARD be in excess of the amount of a SINGLE MONTHLY FEE for the month for which the refund is tendered. UPSELL WIZARD does not provide refunds on annual fees that are paid in its entirety at the beginning of the Term as the aforesaid fees are discounted from the original fee.
21. Dispute Resolution.
In the event of any controversy or claim arising out of or relating to these Terms, or any breach thereof, such controversy or claim shall be determined and finally settled by confidential, binding arbitration, conducted in English, held in Los Angeles County, California, administered by the American Arbitration Association ("AAA") before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Any claimants must file an individual request for arbitration, specifying such claimant's identity, such claimant's counsel, and a detailed description of the legal claims being asserted and the requested relief, including a good-faith calculation of the specific amount in dispute. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
22. Waiver of Class Arbitration or Actions.
Any claims that You or UPSELL WIZARD assert under these Terms will be brought on an individual basis only and not on a class, consolidated, representative, or collective basis. Only individual relief is available for controversies and claims arising out of or relating to these Terms, or any breach thereof, and You and UPSELL WIZARD agree that class arbitrations and class actions are not permitted under any circumstances. You understand that, by agreeing to these Terms, You and UPSELL WIZARD are waiving the right to participate in any form of class arbitration and/or class action.
23. Export Controls.
Services available on or through the Service are subject to United States Export Controls. The Service may not be used (a) in (or by a resident of) Cuba, Iran, North Korea, Syria, or any other country which the United States has embargoed goods; or (b) by anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
24. International Use.
Although the Service may be accessible worldwide, UPSELL WIZARD makes no representation that materials on the Service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to use the Service from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any service and/or information made in connection with the Service is void where prohibited.
25. General Provisions.
All notices to a party shall be in writing and shall be made either via email, conventional mail, or by posting the notice on the Service. Notices to us must be sent to [email protected], if by email, or to Upsell Wizard, Inc., 9452 Telephone Rd. #140, Ventura, CA 93004, if by conventional mail. Notices to You may be sent either to the email address supplied for Your account or to the address supplied by You as part of Your Registration Data. In addition, We may broadcast notices or messages through the Service to inform You of any changes to the Service or other matters of importance, and such broadcasts shall constitute notice to You.
Any notices or communication under these Terms will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed email. Either party may update its address or email address for notice purposes via a notice delivered in accordance with this paragraph.
25.2 Costs and Attorney's Fees.
In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys' fees.
Any cause of action brought by You against Us must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
If any part of these Terms is held invalid or unenforceable, the parties agree that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
The headings in this Agreement are for your convenience of reference only and have no legal effect.
25.6 No 3rd Party Beneficiaries.
This Agreement is intended for the sole and exclusive benefit of You and UPSELL WIZARD, and is not intended to benefit any 3rd party. Only the parties to this Agreement may enforce it.
You may not assign, transfer, or delegate any rights and obligations under this Agreement to any other party without the prior written consent of an authorized representative of UPSELL WIZARD, except You may assign or transfer all or any portion of Your rights or responsibilities under this Agreement by operation of law or otherwise to any other party in connection with a merger, acquisition, reorganization, or a sale of substantially all of Your assets without prior notice to UPSELL WIZARD. Any assignment in violation of this Agreement shall be void and of no force and effect. UPSELL WIZARD may freely assign its rights and obligations under these Terms. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors, and permitted assigns.
UPSELL WIZARD may subcontract its obligations hereunder (provided that UPSELL WIZARD shall at all times remain fully responsible for the performance of any subcontractor).
Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other. This Agreement sets forth the parties' entire liability and exclusive remedies relating to this Agreement and the Service provided to you under this Agreement.
25.10 Force Majeure.
In addition to any excuse provided by applicable law, both parties shall be excused from liability for failure or delay in performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control, whether or not foreseeable by either party, including, but not limited to, labor disturbance, war, fire, riot, flood, accident, adverse weather, natural disaster, governmental act or regulation, internet or telecommunication failures, terrorist acts, or other causes or events beyond such party's reasonable control, whether or not similar to those enumerated above, provided that the nonperforming party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible
25.11 Assent to Agreement.
The Merchant's completion of the Registration Process shall constitute assent to the provisions of the Terms and any additional terms provided in the specific Plan that the Merchant selects during the Registration Process.
25.12 Entire Agreement.
25.13 The Applicable Terms.
If UPSELL WIZARD makes a material change to any applicable contract terms contained in a URL, UPSELL WIZARD will notify You by either sending an email to the notification email address, sending conventional mail to the physical address that You provided Us with, or by posting a notice on the Service. If the change has a material adverse impact on You and You do not agree to the change, You must so notify. If You notify UPSELL WIZARD as required, then Your subscription to the Service will be terminated immediately upon receipt of the notice from You.
25.14 Governing Law.
The Service is controlled by Us from our offices within the State of California, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places may have laws that may differ from those of California, by using the Service, You and UPSELL WIZARD agree that the statutes and laws of the State of California, without regard to the conflicts of laws principals thereof, will apply to all matters relating to the use of the Service.
25.15 Jurisdiction and Venue.
Each of us agrees and hereby submits to the personal jurisdiction and venue of the Superior Court of Los Angeles County and the United States District Court for the Central District of California with respect to such matters. The parties waive their right to have an action under this Agreement brought or tried elsewhere.
25.16 No Waiver of Rights or Provisions.
Any failure of UPSELL WIZARD to enforce or exercise any provision of the Agreement shall not constitute a waiver of that right or provision.