Last Updated AUGUST 2023
This Affiliate Agreement and the Upsurge CRM Terms of Service incorporated herein by reference (collectively the “Agreement”) govern your activity, application to join, and any subsequent participation in, Upsurge CRM’s Affiliate program (the “Program”). By accepting the Terms of Service, or by participating in the Program, you also agree to be bound by the terms herein. This Agreement is a binding legal agreement between the individual who accepted its terms or the business entity that the individual represents (“Affiliate,” “You” or “you”) and Upsurge CRM Inc (“Upsurge CRM,” “we” or “us”). If You represent a business entity, you represent and warrant that you have the authority to bind that entity to this Agreement. Upsurge CRM reserves the right to modify the Agreement at any time. Your continued participation in the Program shall be deemed acceptance of any new versions of the Agreement.
SECTION 1. PROGRAM APPLICATION
You agree to provide all information reasonably requested by Upsurge CRM in connection with Your Program application, and You represent and warrant that all information that You provide is truthful and accurate. You understand and agree that Upsurge CRM retains sole and exclusive discretion to determine whether You qualify for participation in the Program. Upsurge CRM reserves the right to change its criteria for the Program at any time, for any reason. You expressly consent to be contacted about your application and the Program via the email address and the phone number You provide in Your application. Such forms of contact may include but are not limited to automated dialing systems, texts and artificial or pre-recorded messages. You may revoke this consent at any time by submitting such revocation in writing to firstname.lastname@example.org.
SECTION 2. PROGRAM RULES (THE “RULES”)
To participate in the Program, you must comply with the following Rules. If Upsurge CRM determines, in its sole discretion, that you are not in compliance with these Rules, you will be considered in material breach of this Agreement, and Upsurge CRM may terminate this Agreement and Your participation in the Program immediately (including forfeiture of Earned Commissions), without liability, in addition to seeking any other available remedies in law and equity.
a. Compliance with the Laws. You are responsible for compliance with all applicable laws and regulations. In particular, Affiliate may only publish or otherwise distribute advertisements in strict compliance with all applicable laws and regulations, including without limitation, laws prohibiting deceptive and misleading advertising and marketing, email marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), laws governing testimonials (including the FTC’s Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations)), and all guidelines issued by the FTC. Upsurge CRM retains the sole and exclusive discretion to determine whether Affiliate’s advertising and conduct is in compliance with all laws.
b. Disclosure Requirement. On any website that Affiliate advertises any Upsurge CRM Service or product, Affiliate must plainly display (i.e., not in a link, or in small font) disclaimer language, such as: “Disclosure: I am an independent entity from Upsurge CRM. I am not an agent or employee of Upsurge CRM and have no authority to make binding contract or represent Upsurge CRM. I receive referral payments from Upsurge CRM. The opinions expressed here are my own and shall NOT be interpreted or considered as representations, guarantees, or statements made by Upsurge CRM Inc or any of its subsidiaries, agents, or assigns.
c. Non-Disparagement. Affiliate agrees that Affiliate shall not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning Upsurge CRM or any employees or officers now or in the future. Affiliate may not make any negative comment about a competitor for the purpose of promoting Upsurge CRM products or services.
d. Social Media Requirements. If Affiliate advertises on any social media platform, Affiliate must comply with all rules imposed by each social media platform (for example, this includes but is not limited to the following: (i) Each Instagram post must use Instagram’s “Paid Partnership” tool, and (ii) Each YouTube post must contain the word “Ad,” “Advertisement,” “Promotion,” or “Paid Partnership” within the video itself in a font size that is clearly recognizable to the viewer and which appears persistently throughout the length of the video in the top right hand portion of the video). You are responsible for ensuring Your compliance with the applicable social media platform rules. In addition, each post must comply with all of the following:
e. Marketing Claims. Affiliates are strictly prohibited from making claims concerning the products and services offered by Upsurge CRM that are inconsistent with, or beyond the scope of marketing materials produced and made available by Upsurge CRM on Upsurge CRM’s website, www.upsurgecrm.com (“Upsurge CRM Website”). Affiliate is also expressly prohibited from making any express or implied claims that Upsurge CRM is or provides a business opportunity, franchise opportunity, a “business-in-a-box,” or an assisted marketing plan. Affiliates may not make, publish or communicate any claims or statements that expressly or impliedly guarantee that a potential new user (“Prospect”) will make money by using Upsurge CRM or by becoming an Affiliate. In addition, all marketing collateral made, published and communicated by Affiliate must be:
f. General Advertising Rules. You represent and warrant that Your affiliate website(s) (“Website”), social media posts, and any other advertising materials will not:
Infringe Upsurge CRM’s or anyone else’s intellectual property, publicity, privacy or other rights.
g. Pay-Per-Click (“PPC”) Guidelines: Affiliates may run paid advertising campaigns as long as they are otherwise in compliance with the terms of this Agreement, Google’s terms and conditions related to PPC, and any applicable laws and regulations.
h. Other Rules: You represent, warrant and agree to comply with the following:
SECTION 3. COMPENSATION
Upon acceptance into the Program, You will receive a unique Affiliate ID. This Affiliate ID will be incorporated in the URL that You use to advertise Upsurge CRM. You may earn Commissions (as further described below) for each sale (“Sale”) that is registered using Your Affiliate ID.
In the event that a Prospect has multiple Affiliate cookies (“Cookies”), the most recently acquired Cookie will generally determine which Affiliate is credited with a Sale except in instances of (i) recently canceled Prospects who attempt to re-subscribe under a different affiliate within 90 days of cancellation, (ii) cases of self-referral, or (iii) other scenarios at Upsurge CRM’s sole discretion. If a Prospect signs up for Upsurge CRM without connection to any Affiliate, that Prospect is considered unaffiliated, and no Commissions will be earned by any Affiliates for that Prospect unless otherwise agreed to by Upsurge CRM in writing.
A Commission is “earned” only if (i) Affiliate has registered and maintained a usable account with a third party payment provider to receive Commission payments and provided complete and accurate information to Upsurge CRM to facilitate payment and (ii) a Prospect’s account has remained in good status for at least forty-five (45) days after the Sale. No Commission is earned for a Sale if, at the time of attempted payout, Affiliate has not maintained a usable account with a third party payment provider or Upsurge CRM is unable to payout Commissions due to incomplete or inaccurate information provided by the Affiliate. Commission payout amounts will be determined by Upsurge CRM in its sole discretion. Commission rates may change from time to time at Upsurge CRM’s sole discretion. Except as otherwise provided herein, Commission payouts will be paid on the 15th of each month following Upsurge CRM’s receipt of payment for a Sale, subject to the other terms of this Agreement. In the event the 15th of each month falls on a holiday or weekend, Commission payouts will typically occur on the following business day, although exceptions may apply. All Commission payouts are calculated based on the amount of fees received by Upsurge CRM, less sales taxes.
The Commission Rates are as follows:
a. Premium Account Signup: $50 monthly recurring payments (applicable to all Upsurge CRM Users)
b. Starter Account Signup: $30 monthly recurring payments (applicable to all Upsurge CRM Users)
In instances where a Prospect is affiliated under different Affiliates for different services (such as cases where one Affiliate makes the Sale, but another affiliate makes an upgrade for the same Prospect), Upsurge CRM will allocate Commissions as deemed appropriate in Upsurge CRM’s sole and absolute discretion.
All Commissions are paid in U.S. Dollars (USD) or otherwise in currencies offered by the payment provider. Some payment methods may incur processing fees that may be deducted from Your Commissions. Your combined Commission must be equal to or exceed Fifty and 00/100 Dollars ($50.00) (USD) before You receive a payment from Upsurge CRM. If Your combined Commissions in a 120-day period do not exceed $50.00 (USD), Your Commissions will not be paid and will be forfeited.
Affiliates must register with a third party payment (i.e. PayPal) provider to receive Commissions payouts. Upsurge CRM or the third party payment provider may require You to submit a completed W-8 or W-9 tax form or any ancillary supporting documentation or tax other documents (the “Required Documents”) before processing Commissions payouts. If You fail to submit the Required Documents in a timely manner, Upsurge CRM or the third party payment provider may refuse to payout Commissions that were earned more than 120 days prior to receiving your Required Documents. If You are not a resident of the United States, Upsurge CRM may withhold tax (including, not limited to, VAT) where required by applicable law. You are solely responsible for complying with all tax laws in Your respective jurisdiction(s) including, but not limited to, the payment of all required taxes, and filing of all returns and other required documents with, the applicable governing body(ies).
If Upsurge CRM determines, in its sole and exclusive discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement or applicable law, no Commission will be considered earned for such Sale. If a Commission has already been paid out for a Sale that is later deemed by Upsurge CRM to be fraudulent or in violation of this Agreement or the law, the Commission amount will automatically be withheld against any future Commissions or refunded back to Upsurge CRM at its option. Upsurge CRM may also terminate this Agreement and Your participation in the Program immediately without any further liability to you.
If a refund or charge-back occurs for a Sale, and if a Commission was already paid to You for that Sale, such Commission is considered unearned, and the Commission will be deducted from Your future Commission payouts.
Upsurge CRM will make reasonable efforts to payout all Earned Commissions. In the event that Upsurge CRM is unable to payout a Commission for any reason outside of Upsurge CRM’s control, those Commissions may be forfeited at Upsurge CRM’s sole discretion.
SECTION 4. INTELLECTUAL PROPERTY RIGHTS
Upsurge CRM may provide you with certain resources and materials (such as white labeled courses, powerpoints, pitch decks, website templates, images, social media posts, etc) to be used in connection with your participation in the Program (collectively, “Upsurge CRM Materials”). You acknowledge our ownership of our Upsurge CRM Materials, agree that you will not do anything inconsistent with our ownership, and agree that all of your use of the Upsurge CRM Materials (including all associated goodwill) will insure to the benefit of, and on behalf of the Upsurge CRM. If requested, you agree to assist us in recording this Agreement with appropriate government authorities. You agree that nothing in this Agreement gives you any right, title, or interest in the Upsurge CRM Materials other than the right to use the Upsurge CRM Materials in accordance with this Agreement. You also agree that you will not attack our rights in or title to the Upsurge CRM Materials or the validity of the Upsurge CRM Materials or this Agreement.
All rights with respect to the Services and Upsurge CRM’s name and trademarks, whether now existing or which may hereafter come into existence, which are not expressly granted to Affiliate herein are reserved to Upsurge CRM. Any goodwill generated through Affiliate’s use of Upsurge CRM’s name and trademarks shall inure solely to the benefit of Upsurge CRM. Except as set forth in this Agreement, Affiliate may not use Upsurge CRM’s name or trademarks without Upsurge CRM’s prior written consent. Affiliate will promptly notify Upsurge CRM of any infringement or threatened infringement of any rights of Upsurge CRM of which Affiliate becomes aware and will provide reasonable assistance to Upsurge CRM, at Upsurge CRM’s expense, in connection therewith. Affiliate shall not promote or provide services to any other business or person that is infringing any of Upsurge CRM’s intellectual property. Affiliate will use commercially reasonable means to protect the security of the Services on Affiliate’s system and network, including internal and public websites, from hacking or other unauthorized access, modification or redistribution. Upon becoming aware of any breach in security, Affiliate shall notify Upsurge CRM and take prompt action to remedy such breach.
SECTION 5. TERM AND TERMINATION
If this Agreement is terminated or canceled, then all provisions that, by their nature, should survive, will survive, including, but not necessarily limited to, all limitations of liability, disclaimers of warranties, indemnity obligations, mandatory arbitration and class action waiver provisions, and exceptions to arbitration. All representations and warranties undertaken by You shall also survive termination or cancellation of this Agreement and/or Your Upsurge CRM account.
SECTION 6. ADDITIONAL REPRESENTATIONS AND WARRANTIES
In addition to Your other representations and warranties herein, You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against You by the Federal Trade Commission (“FTC”), any other federal or state governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against You which relate to alleged intentional torts or alleged violation of any consumer protection or advertising laws. If You become the subject of such an investigation, inquiry, prosecution, or lawsuit any time after this Agreement is executed, You are required to notify Upsurge CRM of the same within 24 hours. Upsurge CRM, in its sole and exclusive discretion, may immediately terminate Your participation in the Program, as well as immediately terminate this Agreement, based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph.
SECTION 7. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Parties with regards to the Program and supersedes any other written or oral agreement between the parties. In event that you have executed a separate written agreement related to the Program, that separate agreement shall prevail in the event of a conflict between it and this Agreement.
SECTION 8. INDEPENDENT CONTRACTOR
Affiliates are independent contractors of Upsurge CRM. It is the express understanding and intention of the Parties that no relationship of employee/employer nor principal and agent shall exist between Upsurge CRM and You by virtue of this Agreement. You have no right to act on behalf of or bind Upsurge CRM in any way, nor share in the profits or losses of Upsurge CRM. The only compensation available to You is set forth in this Agreement. You are solely and exclusively responsible and liable for all of Your acts or omissions.
SECTION 9. DISCLAIMER
Upsurge CRM does not promise, guarantee, or warrant Your business success, income, or sales. You understand, acknowledge, and agree that Upsurge CRM will not at any time provide sales leads or referrals to You. You understand and agree further that this is not a business opportunity, a franchise opportunity, a “business-in-a-box,” or an assisted marketing plan.
SECTION 10. LIMITATION OF LIABILITY
SECTION 11. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION, CLASS ACTION WAIVER, & GOVERNING LAW
Any dispute arising hereunder shall be settled by arbitration administered by the American Arbitration Association pursuant to its then-current rules. The arbitration shall be conducted before a panel of one arbitrator in Los Angeles, California. The arbitration shall be conducted in the English language. The arbitrators will be bound to apply the laws of the State of California. The decision of the arbitrator(s) will be made in writing and shall be final and binding on the parties. Each party shall be responsible for its own costs with respect to the proceedings irrespective of the outcome. This Section provides the sole recourse for the settlement of dispute rising hereunder, except that either party may seek a preliminary injunction or other form of injunctive relief in any court of competent jurisdiction if, in its reasonable, good faith judgment, such action is necessary to prevent or curtail irreparable harm.
Furthermore, the parties agree not to bring any disputes between each other on a collective or class basis; rather, the parties agree to bring such disputes in arbitration on an individual basis only. An arbitrator may not resolve any disputes concerning the enforceability or validity of this class and collective action waiver; only a court with proper jurisdiction may resolve such a dispute. If this class action waiver is held to be illegal for any reason, the parties agree that a court, and not an arbitrator, will hear any class or collective action.
SECTION 12. INDEMNITY
You agree to protect, defend, indemnify and hold harmless Upsurge CRM, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and 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 (1) use of or reliance on information or data supplied or to be supplied by You (2) any breach of this Agreement by You (3) the use or possession of any Upsurge CRM property by You, except to the extent caused by the Upsurge CRM’s gross negligence or willful misconduct (4) any negligence, gross negligence or willful misconduct by or on behalf of You or Your employees or agents.
SECTION 13. SEVERABILITY
In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement and the Terms of Service, as so modified, shall continue in full force and effect.
SECTION 14. JUDICIAL ACTION FOR PROVISIONAL RELIEF
Upsurge CRM shall have the right to seek and obtain from any court of competent jurisdiction any equitable or provisional relief or remedy enforcing any right or interest it may have in connection with this Agreement, including without limitation a temporary restraining order, preliminary injunction, writ of attachment, order compelling an audit, or enforcement of any liens or security interests held by either party in the property of the other. No judicial actions permitted by this paragraph shall waive or limit the claiming party’s rights to adjudicate the merits of the dispute by arbitration.
The parties hereby agree and acknowledge that any breach or threatened breach of this Agreement will result in irreparable harm to Upsurge CRM for which there will be no adequate remedy at law. In addition to other remedies provided by law or at equity, in such event the non-breaching party shall be entitled to seek injunctive relief, without the necessity of posting a bond and without having to establish actual damages resulting from a breach, to prevent any further breach of this Agreement by the other Party.
SECTION 15. COMPLAINT NOTIFICATION
Affiliate must notify Upsurge CRM of any complaint received by Affiliate regarding any advertisements within twenty-four (24) hours of receiving such complaint. Notice should be sent to the Upsurge CRM Support Team. Email: email@example.com.
SECTION 16. FORCE MAJEURE
No party will be liable for nonperformance of any of its obligations under the agreement if its nonperformance was due to a Force Majeure Event as defined in of this Section if reasonable notice and good faith efforts to find a reasonable solution are provided. “Force Majeure Event” shall mean any act of God; war; riot; civil strife; act of terrorism, domestic or foreign; embargo; governmental rule, regulation or decree; flood, fire, hurricane, tornado, or other casualty; earthquake; strike, lockout, or other labor disturbance; the unavailability of labor or materials to the extent beyond the control of the party affected; pandemics, epidemics, local disease outbreaks, public health emergencies, and quarantines; or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing. Upon occurrence of a Force Majeure Event, the non-performing party shall, in a timely manner, notify the other party that a Force Majeure Event has occurred, its anticipated effect on performance.