Terms Of Service

4. Payment

4.1 Fees. Your use of the Platform is subject to the timely payment of all Fees. Fees may change from time to time. All Fees are exclusive of Communication Surcharges. You will pay all Communications Surcharges associated with your use of the Platform. Communications Surcharges will be shown as a separate line item on an invoice. All Fees and Communications Surcharges are nonrefundable. Fees will be billed to the credit card we have on file. Fees for subscriptions will be billed in advance of Services. You agree to provide us with accurate and complete billing information (name, address, credit card information, and phone number) and notify us of any changes within 10 days of the change.

4.2 Noncancelable Fees. Some subscriptions for Services require a non-cancellable minimum subscription commitment which cannot be canceled until the commitment is fulfilled. Fees for such non-cancellable minimum subscription commitments will continue to be automatically applied to your bill until the minimum commitment has been achieved.

4.3 No Mark Ups. You may not mark-up or increase any Upsurge CRM Pros Fees that you pass through to Your customers or third parties. You are solely responsible for all pass-through Fees and related expenses, including but not limited to refunds and charge backs of such pass-through Fees. Upsurge CRM Pros is not responsible for resolving issues or disputes between You and Your customers regarding pass-through Fees.

4.4 Taxes. You are exclusively responsible for taxes and other governmental assessments (“Taxes”) associated with your use of the Platform, including all Taxes associated with transactions you conduct with your customers. Upsurge CRM Pros may collect Taxes from you as part of the Fees as legally required or as Upsurge CRM Pros deems appropriate, and all Upsurge CRM Pros determinations regarding what Taxes to collect are final. Upsurge CRM Pros may recalculate and collect additional Taxes from you if it determines at any point that they are due. You will indemnify Upsurge CRM Pros for all Claims related to Taxes that are associated with your activities on the Platform, including any Taxes related to your transactions with your customers as further described below. Taxes are nonrefundable.

4.5 Overdue Amounts. If, for any reason, your credit card company declines or otherwise refuses to pay the amount owed for the Services you have purchased, you agree that we may suspend or terminate your use of the Platform and/or delivery of Services and may require you to pay any overdue Fees and other amounts incurred (including any third-party chargeback fees or penalties) by other means acceptable to us. In the event legal action is necessary to collect on balances due, you agree to reimburse us for all expenses incurred to recover sums due, including attorney fees and other legal expenses.

4.6 Payment Disputes. You will notify us in writing within sixty (60) days of the date we bill you for any invoiced Fees or charges that you wish to dispute. You must pay all invoiced Fees and charges while the dispute is pending or you waive the right to pursue the dispute. Where you are disputing any Fees or charges, you must act reasonably and in good faith and cooperate diligently with us to resolve the dispute. All Upsurge CRM Pros determinations regarding your obligation to pay invoiced Fees and charges are final.

4.7 No Refunds or Credits. Except as described belo, all Fees assessed by Upsurge CRM Pros are non-refundable. You are solely responsible for any excess Fees incurred by You as a result of an error or omission made by You or a third party. Upsurge CRM Pros does not provide Fee refunds or credits for such errors or omissions, or for partially used or unused Platform or Services subscriptions. If you sign up for a subscription but do not access the Service or Platform, you are still responsible for all Fees during the term of your subscription. Except as may be required by law, Upsurge CRM Pros reserves the right to issue or deny a refund or credit in its sole and absolute discretion, at any time, for any reason, and Upsurge CRM Pros' determination of if and when to issue or deny a refund or credit is final.

4.8 Cancellations. You are solely responsible for the cancellation of Services associated with your account, and you will be responsible for all Fees incurred until such cancellation occurs. No refunds will be provided for your failure to properly cancel the Services associated with your account.

4.9 Your Responsibility For Financial Transactions. You are solely responsible for all financial transactions you and your customers engage in on the Platform or using the Services, including transactions conducted using billing tools enabled by the Services. You are exclusively responsible for all chargebacks related to activities of you and your customers, regardless of the reason for the chargeback.

5. Affiliate Program

   Upsurge CRM Pros offers an Affiliate Program under which customers may receive commissions for referring new accounts to Upsurge CRM Pros. Your participation in the Affiliate Program is subject to Upsurge CRM Pros' approval and your acceptance of the Affiliate Agreement, a copy of which is available here and is incorporated herein by reference. You must establish a payment account linked to your Upsurge CRM Pros account in order to earn and receive commission payouts. Commissions may be forfeited if Upsurge CRM Pros is unable to submit payment to your payment account for any reason.

6. Intellectual Property

By using the Platform you are agreeing to the Highlevel Intellectual Property Provisions in their Terms of Service.

7. Disclaimers

THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. YOUR USE OF THE PLATFORM IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. YOU AGREE THAT UPSURGE CRM PROS HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY INFROMATION OR CONTENT MAINTAINED OR TRANSMITTED ON OR THROUGH THE PLATFORM.

WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (B) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF THE PLATFORM WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.

YOU ACKNOWLEDGE THAT THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, YOU AGREE THAT UPSURGE CRM PROS IS NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF YOUR DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK.

UPSURGE CRM PROS MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH A THIRD PARTY OR THIRD PARTY SERVICES, OR IN CONNECTION WITH THE PLATFORM, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY SERVICES OR CONTENT AVAILABLE ON OR THROUGH THE PLATFORM FROM A THIRD PARTY OR THROUGH THIRD PARTY SERVICES IS PROVIDED SOLELY BY SUCH THIRD PARTY.

WE RESERVE THE SOLE RIGHT TO EITHER MODIFY OR DISCONTINUE THE PLATFORM, INCLUDING ANY SERVICES OR FEATURES THEREIN, AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD WE EXERCISE SUCH RIGHT. MODIFICATIONS MAY INCLUDE, BUT ARE NOT LIMITED TO, CHANGES IN THE PRICING STRUCTURE AND THE ADDITION OF FREE OR FEE-BASED SERVICES. ANY NEW FEATURES THAT AUGMENT OR ENHANCE THE THEN-CURRENT SERVICES ON THIS PLATFORM SHALL ALSO BE SUBJECT TO THESE TERMS OF SERVICE.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. PLEASE CONSULT THE LAWS IN YOUR JURISDICTION

8. Limitation of Liability, Indemnification, and Mitigation

   
   Your exclusive remedy and our entire liability, if any, for any claims arising out of these Terms and your use of the Platform or the Services shall be limited to the amount you paid us for Services purchased on the Platform during the three (3) month period before the act giving rise to the liability.

   IN NO EVENT SHALL UPSURGE CRM PROS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM MALICIOUS CODE, LOSS OF USE, DATA OR PROFIT LOSS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PLATFORM OR THIRD PARTY SERVICES OR OF ANY WEBSITE REFERENCED OR LINKED TO FROM THE PLATFORM.

   FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY SERVICES OR DISRUPTIONS THEREOF, OR THIRD PARTY PROMISES AND/OR STATEMENTS REGARDING OUR PLATFORM SERVICES OR CONTENT OR FOR TRANSACTIONS WITH THE THIRD PARTY THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.

   SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. PLEASE CONSULT THE LAWS IN YOUR JURISDICTION.

   
   You agree to defend, indemnify, and hold Upsurge CRM Pros harmless against all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with your use of the Platform (“Claims”), including, but not limited to: (a) our use of or reliance on information or data supplied or to be supplied by you, your employees, agents, or customers; (b) any breach of or default under these Terms by you, your employees, agents, or customers; (c) the wrongful use or possession of any Upsurge CRM Pros property by you, your employees, agents, or customers; (d) any negligence, gross negligence or willful misconduct by you or your employees, agents, or customers; (e) misrepresentations by you, your employees, agents, or customers (f) violation(s) of applicable law by you, your employees, agents, or customers, (g) your actions and the actions of your employees, agents, or customers; (h) the acts or omissions of you, your employees, agents, or customers in connection with providing notice and obtaining consents regarding the origination or content of the SMS or MMS messages, email or other communications using the Services, (i) Taxes and other Fees and/or (j) any disputes between (1) you and other users (2) you and your client(s) and/or (3) your customers.

   If the Platform is found to violate any third-party intellectual property right, at our option we may: (a) obtain the right for you to continue to use the Platform as contemplated by these Terms; (b) modify or replace the Platform, in whole or in part, to seek to make the Platform non-infringing; or (c) require you to immediately cease any use of the Platform.

9. Limitation On Time To File Claims

   ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE PLATFORM MUST BE COMMENCED WITHIN THREE (3) MONTHS AFTER THE EVENT GIVING RISE TO THE ACTION OR CLAIM OCCURRED, REGARDLESS OF WHEN YOU KNEW OR SHOULDHAVE KNOWN ABOUT IT; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

10. Injunctive Relief

    You agree that a breach of these Terms will cause irreparable injury to Upsurge CRM Pros for which monetary damages would not be an adequate remedy, and Upsurge CRM Pros shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security.

11. Waiver And Severability

    You agree that a breach of these Terms will cause irreparable injury to Upsurge CRM Pros for which monetary damages would not be an adequate remedy, and Upsurge CRM Pros shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security.

    No waiver by Upsurge CRM Pros of a term or condition set forth in these Terms shall be deemed a continuing waiver of such term or condition or a waiver of any other term or condition. Any failure of Upsurge CRM Pros to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

    If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.

12. Change of Control

    Upsurge CRM Pros may assign its rights under these Terms at any time, without notice to you. You may not assign your rights under these Terms without Upsurge CRM Pros' prior written consent which may be withheld at Upsurge CRM Pros' sole discretion.

13. Entire Agreement

    Except as noted below, these Terms constitute the sole and entire agreement between you and Upsurge CRM Pros with respect to the Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platform.
    These Terms may not be altered, supplemented, or amended by the use of any other document(s) unless such document is signed by an authorized representative of Upsurge CRM Pros.

    Upsurge CRM Pros may enter into a separate agreement with you. The terms of any separate agreement between you and Upsurge CRM Pros will be considered a part of your entire agreement with Upsurge CRM Pros. To the extent there is a conflict between these Terms and the terms of your separate agreement with Upsurge CRM Pros, your separate agreement with Upsurge CRM Pros will control.

14. Term and Termination

    
    These Terms will remain in full force and effect so long as you maintain a Platform Account. The sections of these Terms that are intended to survive termination of your Platform Account will remain binding even after you are no longer a Platform user.

    a. Grounds for Termination.

    You agree that Upsurge CRM Pros, in its sole discretion, may suspend or terminate your access to the Platform (or any part thereof) for any reason, with or without notice, and without any liability to you or to any third party for any claims, damages, costs or losses resulting therefrom.
    Any suspected fraudulent, abusive or illegal activity may be grounds for barring your access to this Platform, and reporting you to the proper authorities, if necessary. Upsurge CRM Pros reserves the right to delete Platform Accounts that have remained inactive for at least one (1) year.

    b. No Right to Services Upon Termination.

    Upon termination and regardless of the reason(s) motivating such termination, your right to use the Platform will immediately cease. Upsurge CRM Pros is not liable to you or any third party for any claims for damages arising out of any termination or suspension or any other actions taken by us with regards to your Platform access.

    c. How to Terminate or Make Adjustments.

    If you, for any reason, would like to terminate your access to the Platform or make adjustments, Upsurge CRM Pros requires written notice at least 30 days before your next billing date.

    d. No Termination by Third Party Users.

    Upsurge CRM Pros has limited access to subscriptions not directly purchased from us. Any user who has been given access to the Platform by any party other than Upsurge CRM Pros must contact the party who originally provided access to the Platform for any inquiries related to termination.

    e. Force Majeure.
    In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Platform or any associated product or service through the Platform arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

15. Applicable Law, Binding Arbitration, and Class Action Waiver

    
    PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.

    The laws of the State of Utah will govern these Terms of Service and any disputes under them, without giving effect to any principles of conflicts of laws.

    Any controversy or claim arising out of or relating to these Terms shall be exclusively settled by arbitration administered by the American Arbitration Association in accordance with Commercial Arbitration Rules, then in effect. This arbitration provision is governed by the Federal Arbitration Act. The arbitration proceedings shall be held in Dallas, Texas. Any arbitration award may be entered in a court of competent jurisdiction.

    All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.

16. Communications and Contact Information

    All notices to a party shall be in writing and shall be made via email. Notices to Upsurge CRM Pros must be sent to cs@upsurgecrmpros.com. You agree to allow us to submit notices to you either through the email address you provided when registering, or to any address we have on record.
    Notices are effective on receipt.

    Upsurge CRM Pros may contact you regarding these Terms using any information you provide, or by any other means if you do not provide contact Information. If you no longer wish to receive communications from Upsurge CRM Pros, you can click on the “unsubscribe link” provided in such communications or contact us at cs@upsurgecrmpros.com

    When you create a Platform account, you must designate a primary email address that will be used for receiving electronic communication related to these Terms. Upsurge CRM Pros will never send you an email requesting confidential information such as account numbers, usernames, or passwords, and you should never respond to any email requesting such information. If you receive such an email purportedly from Upsurge CRM Pros, do not respond to the email and notify Upsurge CRM Pros by emailing us at cs@upsurgecrmpros.com.

    For all other feedback, comments, requests for technical support, and other communications relating to the Platform or the Terms, please contact us at
    or by mail at:

    A9 Consulting LLC.

    ATTN: Legal Department

    4925 E Hidden Steppe Bend

    Eagle Mountain, Utah 84005

17. Definitions

    
    17.1. “Communication Surcharges” means any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges related to your use of the Platform.

    17.2. "Feedback” means ideas You provide to Upsurge CRM Pros regarding improvements, enhancements, new features, new products, or other concepts related to the Platform, Services, or other matters related to Upsurge CRM Pros' business.

    17.3. “Fees” means any fees associated with the Platform, including but not limited to the monthly subscription services fee and any fees associated with add-in Services that you may purchase.

    17.4. "Upsurge CRM Pros Marks” means the Upsurge CRM Pros name and related logos and service marks of Upsurge CRM Pros.

    17.5. “Information” means data about You and Your customers that Upsurge CRM Pros collects on the Platform, including but not limited to information required to create a Platform Account and use the Platform for the intended purpose.

    17.6. “Login Credentials” means the username and password used to access your Platform Account.

    17.7. “Platform” means any Services, Training, content, functionality, communication channels, and software or other services or features offered to customers on or through Upsurge CRM Pros' website or mobile application.

    17.8. “Platform Account” means the account you created in order to access and use the Platform.

    17.9. “Platform Content” means content, data, features, and functionality, including but not limited to text, graphics, videos, logos, button icons, databases, music, sounds, images, or other material that can be viewed on the Platform. Platform Content does not include User Contributions.

    17.10. “Prohibited Conduct” means the behaviors described in Section 3.

    17.11. “Services” means the variety of product integrations and services that Upsurge CRM Pros makes available on the Platform. Services may include Third Party Services.

    17.12. “Sub-Account” means a subscription for one business under a Platform Account.

    17.13. “Third Party Content” means content, promotions or offers provided by third parties or links to external third-party websites that may be accessible on the Platform.

    17.14. “Third Party Services” means any Services or other services owned and provided by a third party vendor that Upsurge CRM Pros makes available to You as a Service on or through the Platform.

    17.15. “Training” means any training, information or suggested usages conveyed by Upsurge CRM Pros about the Platform.

    17.16. “User Contributions” means content or materials that you post, submit, upload, publish, display, or transmit on or through the Platform or to Upsurge CRM Pros directly.

    17.17. “You” or “you” or any derivatives thereof means the individual who accepted the Terms or the business entity that the individual represents. “You” also includes any and all agents, employees, or third parties that are authorized to act on your behalf.