This membership agreement (the “Membership Agreement”) contains the terms and conditions that govern your use of the MyLeadSystemPRO website (the “Website”) and the Services (as defined below). THIS MEMBERSHIP AGREEMENT DESCRIBES YOUR RIGHTS AND RESPONSIBILITIES, AND INCLUDES DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, A CLASS ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS. THESE PROVISIONS FOR AN ESSENTIAL BASIS OF OUR AGREEMENT.
If you do not agree with any of these terms, do not access or otherwise use the Website or Services, or any information or materials contained on the Website.
Upward Enterprises, LLC (“Upward”) owns and operates the Website. This Membership Agreement is between you and Upward. Upward reserves the right to add, delete, and modify any of the terms and conditions contained in this Membership Agreement at any time and in its sole discretion by posting a change notice or a new agreement on the Website. In the event of substantive changes to this Membership Agreement, the new terms will be posted to the Website, you will be required to affirmatively assent to its terms, and you may also be notified by email. If any modification is unacceptable to you, your only recourse is not to use the Website and the Services and to request an immediate termination of your membership. Your express consent or continued use of the Website or the Services following posting of a change notice or new Membership Agreement on the Website will constitute binding acceptance of the changes.
1.1. Upward provides a number of Internet-based services through the Website (all such services, collectively, the “the Services”), including without limitation training and materials for you to develop and promote your business. Upward reserves the right to add, change, and delete content and services from the Website or Services from time to time.
1.2. You agree to pay, and authorize automatic recurring billing of, the membership fee with your credit card, or other payment methods, until subsequently cancelled. Your payment for the initial 30-day period is refundable, provided that you contact us and request that we cancel your membership and refund your fee within the initial 30-day period. You understand and agree that each subsequent automatic recurring billing of the membership fee is not refundable and will not be prorated.
1.3. Upward reserves the right to change the membership fee from time to time.
2.1. Upward will only knowingly provide the Services to parties that can lawfully enter into and form contracts under applicable law. The Website and the Services are not for anyone under the age of 18 and any such use is prohibited.
2.2. You must comply with all of the terms and conditions of this Membership Agreement, the applicable agreements and policies referred to below, and all applicable laws, regulations, and rules when you use the Website and the Services.
2.3. Your License to Use the Website and the Services.
2.3.1. Upward owns or licenses all intellectual property and other rights, title, and interest in and to the Website, Services, and the materials accessible on or through the Website and Services, except as expressly provided for in this Membership Agreement. For example, and without limitation, Upward owns trademarks, copyrights, and certain technology used in providing the Services. You will not acquire any right, title or interest therein under this Membership Agreement or otherwise unless expressly provided for herein.
2.3.2. Upward grants you a limited revocable license to access and use the Website and Services for their intended purposes, subject to your compliance with this Membership Agreement. This license does not include the right to collect or use information contained on the Website for purposes that Upward prohibits or to compete with Upward. If you use the Website or the Services in a manner that exceeds the scope of this license or breaches any relevant agreement, your license shall terminate immediately.
3.1. For the purpose of this Membership Agreement, “Confidential Information” shall be deemed to include all information and materials that: (a) if in written format is marked as confidential, or (b) if disclosed verbally is noted as confidential at time of disclosure, or (c) in the absence of either (a) or (b) is information which a reasonable party would deem to be non-public information and confidential.
3.2. Confidential Information shall include without limitation: all information provided on or through the Website or the Services; trade secrets, inventions, research methods, methods of compiling information, methods of creating the Upward database, procedures, devices, machines, equipment, data processing programs, software, computer models, research projects, and other means used by Upward in the conduct of its business; product formulations, strategies and plans for future business, new business, product or other development, new and innovative product ideas, potential acquisitions or divestitures, and new marketing ideas; information with respect to costs, commissions, fees, profits, sales, markets, sales methods and financial information; mailing lists, the identity of Upward customers, potential customers, distributors, and suppliers and their names and addresses, the names of customer representatives responsible for entering into contracts for Upward's products or services, the amounts paid by Upward customers, specific customer needs and requirements, and leads and referrals to prospective customers; and the structure, sequence, and organization of the Upward database, together with source code and object code; and the identity of Upward employees, their respective salaries, bonuses, benefits, qualifications and abilities.
3.3. You acknowledge and agree that the nature of Upward's confidential, proprietary, and trade secret information to which you have, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive, international industry in which Upward competes. You further acknowledge and agree that, even in complete good faith, it would be impossible for you to work in a similar capacity for a competitor of Upward without drawing upon and utilizing information gained pursuant to this Membership Agreement.
3.4. You acknowledge that you are receiving such Confidential Information in confidence and will not publish, copy, or disclose any Confidential Information without prior written consent from the Company. You further agree that you shall not attempt to reverse engineer, de-compile or try to ascertain the source code to Upward software or any other software supplied hereunder. You acknowledge that you will only use the Confidential Information to the extent necessary to promote your business, and that you will use best efforts to prevent unauthorized disclosure of the Confidential Information to any third party.
3.5. The obligation of confidentiality shall not apply to any particular portion of Confidential Information which: (a) was in the public domain when Upward granted access to you; (b) entered the public domain through no fault of you subsequent to receipt; (c) was in your possession free of any obligation of confidence at the time of the disclosure by Upward; (d) was rightfully communicated by a third party to you free of any obligation of confidence subsequent to the time of the originating party's communication thereof to you; (e) was developed by you independently of and without knowledge or reference to any Confidential Information; (f) is approved for release by written authorization from Upward; or (g) is required to be disclosed pursuant to any statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, but in any case, you will immediately notify Upward before disclosure and given a reasonable opportunity to obtain a protective order or other form of protection.
3.6. You agree not to alone or in association with others use Confidential or trade secret information to (a) solicit, or facilitate any organization with which you are associated in soliciting, any employee or customer of Upward's to alter its relationship with Upward; (b) solicit for employment, hire, or engage as an independent contractor, or facilitate any organization with which Upward is associated in soliciting for employment, hire, or engagement as an independent contractor, any person who was employed by Upward at any time during the term of this Membership Agreement (provided, that this clause (b) shall not apply to any individual whose employment with Upward was terminated for a period of one year or longer); or (c) solicit business from or perform services for any customer, supplier, licensee, or business relation of Upward's, induce or attempt to induce, any such entity to cease doing business with Upward; or in any way interfere with the relationship between any such entity and Upward.
3.7. You agree that you will not make any derogatory statements, either oral or written, or otherwise disparage Upward, Upward's products, employees, services, work or employment, and will take all reasonable steps to prevent others from making derogatory or disparaging statements. You agree that it would be impossible, impractical, or extremely difficult to fix the actual damages suffered by reason of a breach of this paragraph, and accordingly hereby agree that five thousand dollars ($5,000) shall be presumed to be the amount of damages sustained by reason of each such breach, without prejudice to Upward's right to also seek injunctive or other equitable relief.
3.8. Other than as expressly provided for herein, in no event shall you be deemed by virtue hereof to have acquired any right or interest by license or otherwise, in or to the Confidential Information.
3.9. You agree that all originals and any copies of the Confidential Information remain the property of Upward Enterprises, LLC. You shall reproduce all copyright and other proprietary notices, if any, in the same form that they appear on all the materials provided by Upward, on all copies of the Confidential Information made by you. You agree to return all originals and copies of all Confidential Information in your possession or control to Upward at Upward's request.
4.1. Prohibited Use. You may only use the Website and Services to promote your business, as expressly permitted by Upward. You may not cause harm to the Website or Services. Specifically, but not by way of limitation, you may not: (i) interfere with the Website or Services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Website or Services; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website or Services, except in the operation or use of an internet “search engine,” hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Website or Services; (v) impersonate another person or entity; (vi) engage in any activity that interferes with another user's ability to use or enjoy the Website or Services; (vii) assist or encourage any third party in engaging in any activity prohibited by this Membership Agreement; (viii) co-brand the Website or Services; (ix) frame the Website or Services; or (x) hyper-link to the Website or Services, without the express prior written permission of an authorized representative of Upward Enterprises, LLC.
4.3. Ordering Policies. If you purchase any products or services on or through the Website or Service, you agree that your use of the product or service is limited by this Membership Agreement as well.
4.4. Password Restricted Areas of the Website. Most areas of the Website are password restricted to registered users (“Password-Protected Areas”). If you have registered as an authorized user to gain access to these Password-Protected Areas, you agree that you are entirely responsible for maintaining the confidentiality of your password, and agree to notify Upward if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. You agree that you are entirely responsible for any and all activities that occur under your account, including any fees that may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You agree to immediately notify Upward of any unauthorized use of your account or any other breach of security in relation to your password or the Website that is known to you.
4.5. Spam Policy: You may not use the Website or Services to engage in unethical marketing activities, including without limitation spamming. The following are examples of activities that are not permitted, and which may result in an immediate deactivation of your account or termination of your membership: a) disguising the origin of any content transmitted to or through the Website or Services, or using any other means of deceptive addressing; b) relaying email from a third party's mail servers without the permission of that third party; c) transmitting any material that is unlawful or used without adequate permission from the owner of the material; d) harvesting email addresses in a manner that is unlawful or in violation of the rights of a third party; e) sending email that contains inaccurate header information or domain names that are not valid or do not exist; f) sending email that contains false or misleading information in the subject line or body of the message; g) sending email that does not indicate that it is an advertisement, does not include a functioning opt-out mechanism, or does not include your valid physical mailing address; or h) sending email that violates applicable law, including without limitation the CAN-SPAM Act or the applicable laws of the jurisdictions from which you send email or in which the email is received the acceptable use policies of Upward's email service provider.
5.1. Monitoring. Upward reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website and Service. If Upward determines, in its sole and absolute discretion, that you or another user has or will breach a term or condition of this Membership Agreement or that such transaction or communication is inappropriate, Upward may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
5.2. Modification of the Service. Upward may modify the Website or Services at any time with or without notice to you, and will incur no liability for doing so.
6.1. Upward asks that you respect the Website online community. Your conduct when using the Website and Services should be guided by common sense and basic etiquette. To further these common goals, you agree not to:
6.1.1. Disparage the products or services of any company or individual.
6.1.2. Impersonate or represent Upward, Upward staff, or other industry professionals.
6.1.3. Link to or post content not allowed on the Website.
6.1.4. Solicit a user's password or other account information.
6.1.5. Harvest user information for any purpose.
6.1.6. Use racially or ethnically offensive language; discuss or incite illegal activity; use explicit or obscene language; or solicit or post sexually explicit images.
6.1.7. Harass, threaten, or embarrass anyone.
6.1.8. Post anything that you do not have the legal right to post; and
6.1.9. Violate any law, or make any untrue or misleading statement;
7.1. Your Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information (“Submissions”), you grant Upward an unrestricted license to use such Submissions for any purpose, including without limitation marketing and other promotional purposes and the right to sublicense. You agree that Upward will have no obligation to keep any Submissions confidential. You will not bring a claim against Upward based on “moral rights” or the likes arising from Upward's use of a Submission.
7.2. Submissions by Others. Upward does not control the content posted by third parties and does not guarantee the accuracy, integrity, or quality of such content. You understand that by using the Website or Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Upward be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Website or Services by third parties.
8.1. Mutual Representations and Warranties. Each party represents to the other that: (i) the party has the full power and authority to enter into and perform under this Membership Agreement, (ii) execution and performance of this Membership Agreement does not constitute a breach of, or conflict with, any other agreement or arrangement by which the party is bound, and (iii) the terms of this Membership Agreement are a legal, valid, and binding obligation of the party entering into this Membership Agreement, enforceable in accordance with these terms and conditions.
8.2. By You. You represent and warrant to Upward that, in your use of the Website and Services, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party; (ii) will comply with all applicable laws, rules, and regulations; (iii) will not disrupt or damage any software or hardware; and (iv) you will provide correct, current, and complete billing and contact information.
9.1. YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND UPWARD, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE, OR LOCAL STATUTE, LAW, ORDER, ORDINANCE, OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR SHALL NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND SHALL NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A CALIFORNIA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”).
9.2. The following procedures shall apply:
9.2.1. Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth below.
9.2.2. In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall be conducted in the state of California, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses).
9.2.3. Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this Membership Agreement.
10.1. DISCLAIMER OF WARRANTIES. UPWARD PROVIDES THE WEBSITE, SERVICES, AND ALL CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. UPWARD DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, SERVICES, OR WEBSITE CONTENT, OR USE THEREOF: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. UPWARD MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS MEMBERSHIP AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
10.2. EXCLUSION OF DAMAGES. UPWARD WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEBSITE OR SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. LIMITATION OF LIABILITY. IN NO EVENT WILL UPWARD'S LIABILITY IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES EXCEED THE LESSER OF (i) THE AMOUNT PAID TO UPWARD BY YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY, OR (ii) ONE HUNDRED DOLLARS ($100).
11.1. You must indemnify and hold Upward and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any of provision in this Membership Agreement through any act or omission. If you have to indemnify Upward under this section, Upward will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without the express written permission of Upward.
12.1. Termination. You agree that, under certain circumstances and without prior notice, Upward may suspend or terminate your use of the Website or Services, including without limitation, if Upward believes, in its sole and absolute discretion, that you have breached a term of this Membership Agreement. You acknowledge and agree that all suspensions and terminations shall be made in Upward's sole discretion and that Upward shall not be liable to you or any other party for said suspension or termination.
12.2. Survival. Upon termination, your license to use the Website, Services, and everything accessible by or through the Website or Services shall terminate and the remaining provisions of this Membership Agreement shall survive indefinitely unless and until Upward chooses to terminate them.
12.3. Effect of Termination. Upon termination of any part of this Agreement for any reason, Upward may delete or assume ownership of any Content or other things—including without limitation URLs, domain names, and email lists—relating to your use of the Website or Services that is on Upward's servers or otherwise in Upward's possession or control, and Upward will have no liability to you or any third party for doing so.
13.1. All notices required or permitted to be given under this Membership Agreement will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Upward, you must use the following address: Upward Enterprises, LLC, 8605 Santa Monica Blvd #32665, Los Angeles, CA 90069. If Upward provides notice to you, Upward will use the contact information provided by you. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.
14.1. Upward respects the intellectual property of others, and asks users to do the same. Upward may, in appropriate circumstances and at its discretion, terminate service to users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact Upward's designated agent to receive notice of claimed infringement: Upward Enterprises, LLC, attn: Copyright Agent, 8605 Santa Monica Blvd #32665, Los Angeles, CA 90069. Provide the following information required by the Digital Millennium Copyright Act, 17 U.S.C. § 512: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (iii) identification of the URL or other specific location on the Website where the material that you claim is infringing is located; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
15.1. This Membership Agreement will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. This Membership Agreement will not be assignable or transferable by you without Upward's prior written consent. This Membership Agreement (including all of the policies and other Agreements described in this Membership Agreement, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this Membership Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. Any rights not expressly granted herein are reserved. You and Upward are independent contractors and independent businesses, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Membership Agreement. The invalidity or unenforceability of any provision of this Membership Agreement will not affect the validity or enforceability of any other provision of this Membership Agreement, all of which will remain in full force and effect. If you have questions or concerns regarding this Membership Agreement, you should contact Upward by e-mailing Support@LeadSystemSupport.com and writing “Membership Agreement” in the subject line.
This membership agreement was last updated on January 29, 2015.