TERMS AND CONDITIONS, PRIVACY, AND DATA PROCESSING AGREEMENT
Upward Creatives, LLC a Colorado limited liability company
Marketing, Branding, Design, and Web Services
These Terms and Conditions, together with the Data Processing Addendum and Schedules (collectively, the “Agreement”), govern all services provided by Upward Creatives, LLC, a Colorado limited liability company (the “Company”), to the client (“Client”).
By engaging the Company, the Client agrees to be bound by this Agreement.
1. SERVICES
The Company provides marketing, branding, rebranding, design, website design, website hosting, SEO, and related digital services (the “Services”). The scope, deliverables, pricing, and timelines may be set forth in a Statement of Work (“SOW”), which is incorporated by reference.
2. PAYMENT TERMS
All invoices are due within thirty (30) days of receipt unless otherwise stated in writing. Any unpaid balance shall incur a late fee equal to three percent (3%) of the outstanding amount, which may accrue periodically until paid. Failure to make timely payment may result in suspension or termination of Services, including removal of access to deliverables and hosting environments. A reconnection fee of fifty dollars ($50.00) shall apply to reinstate any recurring or subscription-based services following suspension due to non-payment.
3. INTELLECTUAL PROPERTY RIGHTS
All work product, including designs, branding, websites, code, and related materials, shall remain the sole property of the Company until full payment has been received. Upon full payment, the Client is granted a limited, non-exclusive, non-transferable license to use the final approved deliverables for business purposes, unless otherwise agreed in writing. Any rights granted prior to payment are temporary and revocable, and shall automatically terminate upon non-payment, at which point the Client must cease all use of the work product. The Company retains the right to use work product for portfolio and marketing purposes.
4. WEBSITE HOSTING AND DIGITAL SERVICES
Hosting and related services, if provided, are billed on a recurring basis. Non-payment may result in termination of hosting services and loss of website access. The Company shall not be responsible for data loss resulting from non-payment, suspension, or the Client’s failure to maintain backups.
5. CLIENT RESPONSIBILITIES
The Client agrees to provide timely content, approvals, and access required for performance of Services and represents that all materials provided are lawful and do not infringe third-party rights.
6. TERMINATION
Either party may terminate Services upon 30 day written notice. The Client shall remain responsible for all amounts due for Services performed prior to termination. The Company may terminate immediately for non-payment or breach. Upon termination, all outstanding balances become immediately due, and any licenses granted shall terminate if payment has not been made.
7. WARRANTIES AND DISCLAIMERS
All Services are provided on an “as is” basis. The Company makes no guarantees regarding performance, including marketing results, SEO rankings, or business outcomes.
8. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the Company’s total liability shall not exceed the total fees paid by the Client. The Company shall not be liable for indirect or consequential damages.
9. INDEMNIFICATION
The Client agrees to indemnify and hold harmless the Company from any claims arising from Client content, misuse of Services, or violation of law.
10. FORCE MAJEURE
The Company shall not be liable for delays or failures caused by events beyond its reasonable control, including natural disasters, outages, cyber incidents, or government actions.
11. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Colorado. All disputes shall be resolved in courts located in Colorado.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements.
13. AMENDMENTS
The Company may update these Terms from time to time. Continued use of Services constitutes acceptance.
14. SEO SERVICES
The Company may provide SEO services, including optimization, content recommendations, and analytics. The Client acknowledges that SEO outcomes are not guaranteed and depend on external factors such as search engine algorithms and competition. The Client agrees to provide necessary access and materials. The Company is not responsible for performance changes caused by third parties, algorithm updates, or prior SEO work. SEO deliverables remain the property of the Company until paid. Upon termination or non-payment, services may cease and access to tools may be removed.
15. PRIVACY AND DATA PROTECTION (GDPR AND CCPA)
Each party agrees to comply with applicable data protection laws, including GDPR and CCPA. The Client is responsible for obtaining all necessary rights and consents to provide Personal Data to the Company. The Company processes Personal Data solely to provide Services and implements commercially reasonable safeguards. The Company does not sell Personal Information. The Client acknowledges that third-party providers may process data as part of the Services, and the Company is not responsible for their independent practices.
DATA PROCESSING ADDENDUM (DPA)
16. ROLES OF THE PARTIES
The Client acts as Controller or Business, and the Company acts as Processor or Service Provider.
17. PROCESSING DETAILS
The Company processes Personal Data solely to perform Services, which may include collection, storage, use, and transmission of data such as contact information and online identifiers relating to customers, users, or employees.
18. PROCESSOR OBLIGATIONS
The Company shall process Personal Data in accordance with Client instructions and applicable law and maintain reasonable security safeguards and confidentiality obligations.
19. SUBPROCESSORS
The Company may engage subprocessors and shall use commercially reasonable efforts to ensure appropriate protections are in place.
20. DATA SUBJECT REQUESTS
The Company shall provide reasonable assistance with data subject requests at the Client’s expense where permitted by law.
21. DATA BREACH
The Company shall notify the Client without undue delay following confirmation of a data breach and take reasonable mitigation steps.
22. DATA RETENTION
The Company may delete or retain Personal Data in accordance with standard practices unless otherwise required by law.
23. INTERNATIONAL TRANSFERS
The parties shall implement lawful transfer mechanisms, including Standard Contractual Clauses where applicable.
24. AUDITS
The Company shall provide reasonable information to demonstrate compliance upon request, subject to reasonable limitations and cost allocation to the Client.
25. CCPA TERMS
The Company shall act as a Service Provider and shall not sell Personal Information or use it beyond permitted purposes.
26. LIMITATION OF LIABILITY
Liability under this DPA is subject to the limitations set forth in this Agreement.
27. ORDER OF PRECEDENCE
This DPA shall control with respect to data protection matters in the event of conflict.
SCHEDULE 1 – SECURITY MEASURES
The Company maintains commercially reasonable safeguards, including access controls, authentication measures, secure data handling practices, confidentiality obligations, and incident response procedures, which are periodically reviewed and updated.
SCHEDULE 2 – SUBPROCESSORS
The Company may use third-party providers for hosting, analytics, communications, marketing tools, and infrastructure services and shall use commercially reasonable efforts to ensure such providers maintain appropriate data protections.
SCHEDULE 3 – INTERNATIONAL DATA TRANSFERS
Where required, the parties shall implement Standard Contractual Clauses and other lawful safeguards for international transfers, including UK addenda where applicable, and cooperate in maintaining compliance.