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Revised: July 12, 2019
Hello! Please keep reading these important Terms. They apply when you buy a monthly hosting and maintenance plan or use any of our services. Speaking of which, thank you for your interest. We appreciate you (and your apparent love of legal terms).
Who are we? We are Move Up Faster. We might call ourselves “Move Up Faster” (“We”, “Us” or “Our”).
Who are you? You are a customer, or you represent a customer, of our Move Up Faster Services (as defined below). So, you be “You” (or “Your”).
A few things You should know right away:
THESE TERMS OF USE (“TERMS”) APPLY TO ALL SETUP AND MONTHLY MAINTENANCE AND MANAGEMENT FEES FOR MOVE UP FASTER HOSTED WEBSITES AS A SERVICE AND ANY OTHER RELATED SERVICES THAT WE MAY PROVIDE TO YOU WHEN YOU ACCEPT THESE TERMS AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM (AS DEFINED BELOW), AND YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. THESE TERMS ALSO INCLUDE AND INCORPORATE ANY MOVE UP FASTER POLICY POSTED ON WWW.MOVEUPFASTER.COM/LEGAL. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE READ THESE TERMS, YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT ACCEPT THE ORDER FORM AND YOU SHALL NOT BE PERMITTED TO USE THE MOVE UP FASTER SERVICE. YOU MUST BE AT LEAST 18 YEARS OF AGE TO PURCHASE OR USE THE MOVE UP FASTER SERVICE OR PROFESSIONAL SERVICES.
Section 1: Definitions
“Authorized User” means any of Your employees, consultants, contractors or agents authorized to access and use the Move Up Faster Service on behalf of Your business, in each case subject to such person’s agreement to be bound by these Terms.
“Front End Code” means our display and usability of our custom websites we made for you. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“Move Up Faster Materials” means any documentation, user guides, or other similar materials provided by Move Up Faster to You in connection with Your use of the Move Up Faster Service.
“Move Up Faster Service” means any of the Move Up Faster set of solutions that are developed, operated, and maintained by Move Up Faster (and its third party service providers) and that are subscribed to through a Move Up Faster branded or controlled website (or Move Up Faster partner website) that includes a link to or makes reference to these Terms. The definition of Move Up Faster Service does not include any separate Professional Services (as defined below) that may be purchased by You from Move Up Faster.
“Order Form” means any online or written order form or contract for the Move Up Faster Service or for Professional Services submitted by You either during an online subscription process or separately signed by You and submitted to Move Up Faster, and any future purchase order, contract, or order form that makes reference to these Terms.
“Professional Services” means any implementation, training or other professional services provided by Move Up Faster to You pursuant to the terms of an Order Form.
“Subscription Term” means the use term for the Move Up Faster Service set forth on Your Order Form and any additional renewals of such term, which are monthly thereafter the end of your initial contract term.
“Third Party Content” means the content, including website code and website-as-a-service offerings, that a Move Up Faster partner or other third party may bundle with the Move Up Faster Service, for a specific market or niche offering.
“Your Data” means registration information and other information relating to Your Authorized Users, and information relating to Your customers, contacts, business, marketing, and finances, and any similar data that You submit to the Move Up Faster Service.
Section 2: Use Rights and Restrictions
2.1 Use Rights; Restrictions. Subject to these Terms, Move Up Faster grants to You during the Term of your contract the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the Move Up Faster Service (and any Move Up Faster Materials provided to You) to allow You to have a great looking website with Google Analytics, and other related business functions that the Move Up Faster Service is designed to perform, subject to the following restrictions: (i) Your use of the Move Up Faster Service may not be on behalf of third parties unless a separate agreement between You and Move Up Faster permits use of the Move Up Faster Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and Move Up Faster, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Move Up Faster Service or the Move Up Faster Materials available to any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Move Up Faster Service or Move Up Faster Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the Move Up Faster Service or Move Up Faster Materials in order to build a similar or competitive product or service; (iv) Your use of the Move Up Faster Service shall conform with the restrictions set forth in the Order Form for the package purchased by You in terms of bandwidth and disk usage (Move Up Faster may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); (v) Your use of the Move Up Faster Service must not cause undue strain or stress on the Move Up Faster network through excessive API calls or other non-standard use; and (vi) Your use of the Move Up Faster Service must comply with the separate Move Up Faster Acceptable Use Policy posted on the Move Up Faster website (www.moveupfaster.com) as updated by Move Up Faster from time to time.
2.2 Technical Support. During Your contracted Term, You will be entitled at no extra charge to access Move Up Faster’s Customer Service team to make text changes and image replacements for the Move Up Faster Service.
2.3 Intellectual Property Rights. You acknowledge and agree that Move Up Faster retains all proprietary rights in and to the Move Up Faster website (https://Move Up Faster.com) which we may update from time to time. Move Up Faster also retains all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Move Up Faster Service and Move Up Faster Materials (including application development, business and technical methodologies, and implementation and business processes, used by Move Up Faster to develop or provide the Move Up Faster Service or Move Up Faster Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted to You under these Terms, You do not acquire any interest in the Move Up Faster Service or Move Up Faster Materials. You agree that Move Up Faster can use any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Move Up Faster Service or the Move Up Faster Materials without restriction or obligation to You.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the Move Up Faster Service. Any replication or use of any aspect of the Front End Code or other Move Up Faster application or Professional Services for any purpose designed or intended to compete with Move Up Faster’s solutions is strictly prohibited.
Section3: Data Protection
3.1 Ownership of Your Data. As between You and Move Up Faster, Your Data is and will remain Your property. You grant to Move Up Faster a non-exclusive right to use, copy, distribute and display Your Data solely in connection with Move Up Faster’s operation of the Move Up Faster Service on Your behalf. You, not Move Up Faster, have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Move Up Faster will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.
3.2 Notification of Decreased Protection Standards Event. Move Up Faster agrees to promptly notify You if Move Up Faster becomes unable to satisfy its obligations under this Section III on Data Protection or Section V on Confidentiality.
Section 4: Fees
4.1 Fees. The fees for the Move Up Faster Service and any additional Professional Services (“Fees”) are set forth in your Proposal & Contract and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and these Terms. You agree to provide Move Up Faster with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide Move Up Faster with credit card information, You authorize Move Up Faster to bill such credit card (a) at the time that You order the Move Up Faster Service or other Professional Services set forth in the Proposal & Contract, (b) for any billing frequency otherwise established in the Contract, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If Move Up Faster, in its discretion, permits You to make payment using a method other than a credit card, Move Up Faster will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of Move Up Faster’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
4.2 Non-Payment; Other Suspension Rights. Move Up Faster may terminate the Move Up Faster Service if the billing or contact information provided by You is false or fraudulent. Move Up Faster also reserves the right, in its discretion, to suspend or cancel Your access and/or use of the Move Up Faster Service: (i) where any payment is due but unpaid under any Contract or account associated with You and You have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and Move Up Faster is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You acknowledge and agree that if a dispute arises as to management of Your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Move Up Faster may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Move Up Faster may assume that the person or entity that has been making payments on Your account has the authority to manage the account. You agree that Move Up Faster shall not be liable to You nor to any third party for any suspension or cancellation of the Move Up Faster Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.
Section 5: Confidentiality; Use of Names
5.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the Move Up Faster Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) 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 reasonable degree of care in the protection of such Confidential Information). Move Up Faster will restrict its employees’ access to Your Confidential Information to only those employees necessary as determined in Move Up Faster’s sole discretion to successfully provide the Move Up Faster Service. Move Up Faster may disclose Confidential Information on a need-to-know basis to its contractors 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 for Move Up Faster in connection with the performance of this Agreement. Except for personal information within Your Data which is at all times understood to be Confidential Information notwithstanding anything to the contrary in these Terms, Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to 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. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2 Credit Card Information. Move Up Faster agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
5.3 Use of Names in Marketing. You may not use Move Up Faster’s name without prior written consent. Furthermore, Move Up Faster will contact you should they seek to use your name, other than in the event of showing a Client or prospective Client example sites in which we use your company’s beautiful website as the example. If you wish to not allow Move Up Faster to use your website as an example, please email [email protected] and we will make sure to have it unavailable as a direct example of a website we previously made.
Section 6: Term & Termination
6.1 Standard Term. Unless a different Term is specified in a signed Contract between You and Move Up Faster, the Initial Term of Your subscription for a Move Up Faster Service will begin on the submission or execution of Your Contract and shall continue on a month-to-month basis after the initial twelve month term (unless stated otherwise in your contract) until the subscription is terminated as provided for in this Section 6.
6.2 Notice of Non-Renewal. Either party may terminate the Subscription Term to a Move Up Faster Service by providing prior written notice of non-renewal to the other party at least 30 days prior to the end of the then-current Subscription Term. Move Up Faster’s termination rights are in addition to any termination or suspension rights it may have under these Terms or any incorporated policy.
6.3 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to Move Up Faster must be paid in full. Contingent upon its receipt of all such Fees, Move Up Faster will maintain a copy of your website for 30 days after the termination date on its server, but not live on the web. Following this 30-day grace period, Move Up Faster may remove Your Website from its servers. The provisions of these Terms which by their nature are intended to survive expiration or termination, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses, shall survive any termination.
Section 7: Warranties, Limitation of Liability, and Indemnity
7.1 Limited Warranties.
7.2 Move Up Faster Not Responsible for Third Party Content. The Move Up Faster Service may be bundled by third parties (including but not limited to Move Up Faster marketing or content partners) with Third Party Content designed to facilitate use of the Move Up Faster Service in certain market niches or to customize the Move Up Faster Service for use by certain categories of target customers. To the extent that You either purchase the Move Up Faster Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though You may purchase the core Move Up Faster Service directly from Move Up Faster), Move Up Faster does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not Move Up Faster) if and to the extent that You have any complaints or issues relating to the Third Party Content or its interaction with an Move Up Faster Service.
7.3 Payment Processing Services. Move Up Faster uses third party payment processing providers in our Move Up Faster Payments offering. In order for You to use any of these payment processing services through Move Up Faster’s offering, You may be required to register with the applicable processor(s) as a merchant. By accepting these Terms, You agree that You have reviewed the terms of use of the applicable third party payment processor(s) (the “Payment Processor Terms”) and agree to them. You also agree that, notwithstanding any such registration or acceptance of Payment Processor Terms, You are liable for all Fees You owe us under any Order Form, regardless of whether You use Move Up Faster Payments or a different merchant processor. You acknowledge that failure to pay any Fees due under any account You have with us, including accounts associated with Move Up Faster Payments or another payment processor, is a breach of these Terms, and in such event You acknowledge we have the right to cancel or suspend access to the Move Up Faster Service or Professional Services associated with any account we have with You or which is under Your control. We can set off any obligation You owe us, to the extent permitted by law, against any credit in any account we have with You or under Your control, and You will be liable for the costs we incur to pursue collections against You in order to collect any outstanding Fees, including without limitation attorneys’ and collection agency fees and expenses, and interest at the lesser of 1.5% or highest rate permitted by law. Move Up Faster is not a party to any Payment Processor Terms, and we have no obligations or liability to You under the Payment Processor Terms or for any services that any such payment processor provides to You. Move Up Faster’s current third party payment processor(s) include without limitation:
7.4 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT MOVE UP FASTER SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE MOVE UP FASTER SERVICE.
Indemnity. You agree to indemnify and hold Move Up Faster harmless from and defend Move Up Faster against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to Your violation of law or breach of these Terms, including any losses that result from claims You make that are prohibited under any provision of these Terms, such as the Limitation of Liability section below, or any other section.
7.6 Limitation of Liability. IN NO EVENT WILL MOVE UP FASTER BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL MOVE UP FASTER’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO MOVE UP FASTER DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
Section 8 General Provisions
8.1 Notice. Notices to Move Up Faster will only be effective when delivered to [email protected] with a copy to: Move Up Faster, Attn. General Counsel, 170 South William Dillard Drive, Suite 115, Gilbert, AZ 85233 USA, or any subsequent address we may provide the Move Up Faster Service. We may give general notices within the Move Up Faster Service, which will be effective when posted. Alternatively, we may give You notice (a) by email or mail to the last known email or physical address that we have on record for You, which will be effective when we send it; or (b) via telephone, by calling the number we have on record for You, which will be effective when we talk with You. It is Your responsibility to keep all Your contact information current.
8.2 Assignment. You do not have a right to assign these Terms without providing prior notice to and obtaining the consent of Move Up Faster. Any purported assignment in violation of this Section shall be void. We can assign these Terms without Your consent.
8.3 Integration; Modification. These Terms and any amendments thereto, along with the information incorporated into these Terms (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the Move Up Faster Service, the Move Up Faster Materials and the Professional Services, and supersede any prior or contemporaneous, conflicting or additional communications. We may modify all or parts of these Terms at any time. If we revise these Terms, the modified version will not be retroactive and will be effective and binding the day after we post the revised Terms on https://Move Up Faster.com/legal. We will give You notice of material changes to our Terms, most likely via email or within the Move Up Faster Service, though we may instead give You notice by calling to discuss material changes with You. If You object to any changes we make to our Terms, You must give us notice within 10 days after the revised Terms are posted; in this event, Your continued use of the Move Up Faster Service and Professional Services will continue to be governed by the Terms in effect prior to Your notice, provided that those Terms will remain in effect only until the expiration or earlier termination of Your then-current Subscription Term. If Your subscription renews at the end of Your Subscription Term, the Terms posted on https://Move Up Faster.com/legal at the time of Your renewal will apply to You upon such renewal. If You don’t timely object to changes we make to these Terms by giving us notice as described above, Your continued access to or use of the Move Up Faster Service means You have agreed to be bound by the most current version of these Terms which will govern our relationship with You as soon as they become effective. You can always find our most up-to-date Terms at https://Move Up Faster.com/legal (currently, specifically at https://Move Up Faster.com/legal/terms-of-use). Since we might update these Terms from time to time or at any time, we suggest You review them occasionally and check the “Revised” date which will reflect the date the current version was posted.
8.4 Governing Law. These Terms shall be governed exclusively by the laws of the State of Arizona, USA, excluding its conflict of laws rules. We and You agree to the exclusive jurisdiction and venue of the state or federal courts in Maricopa County, AZ, USA for any and all disputes, controversies and claims arising out of or relating to these Terms or concerning the respective rights or obligations of the parties.
8.5 Force Majeure. Except for Your obligation to pay Fees, neither party will be responsible for failure of performance due to causes beyond its control.
8.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Move Up Faster Service, including Move Up Faster technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Move Up Faster Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
8.7 Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.
8.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between Move Up Faster and You as a result of these Terms or use of the Move Up Faster Service.
8.9 Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
