Profit-First O.S Terms & Conditions
Parties. This Agreement is between Nestler Pty Ltd (trading as “UpRev”) (“Company”) and the undersigned individual or entity (“Client”). By submitting this form and signing electronically, the signer confirms they are authorized to bind Client.
1) Term, Payment & Renewal
Term & Auto‑Renew. Subscription renews automatically on the plan selected (4‑week or 12‑week).
Fees. Fees are due in advance, non‑cancellable for the current term, and non‑refundable unless Company agrees otherwise in writing.
Taxes. Fees exclude taxes; Client is responsible for any applicable sales or use taxes (excluding taxes on Company’s income).
No Set‑Off. Client shall pay amounts due without set‑off, counterclaim, or deduction.
Late/Non‑Payment. Overdue amounts may incur 1.5%/month (or max lawful) and $25 per failed/returned payment. Company may suspend services for non‑payment.
Payment Method. Client authorizes Company to charge the payment method on file for renewals and amounts due.
2) Cancellation
Notice. 28 days’ written notice required.
4‑Week Plan Exception. No notice required before the first renewal. After the initial 4 weeks, the 30‑day notice applies.
Effect. If notice isn’t given in time, the next cycle is still billed pro-rata.
3) System Access & Licensing
License Only. All platforms, domains/subdomains, numbers, ads, campaigns, funnels, automations, CRM configurations, and revenue‑management materials furnished by Company for Profit‑First O.S. are licensed to Client for the subscription term; ownership stays with Company and assets are non‑transferable.
Access Window. Access remains active only while the subscription is current; on termination, access is disabled.
4) Acceptable Use
Client must not: (i) violate law; (ii) target minors; (iii) send illegal/abusive content; (iv) impersonate others; (v) use lists without valid consent/basis; (vi) bypass carrier filtering/10DLC; (vii) target jurisdictions where Client lacks compliance.
5) Email & SMS Compliance (allocation of risk)
Designated Sender (email). Client is the designated “sender” for commercial emails under CAN‑SPAM. Company may be an “initiator” but acts only on Client’s written instructions. Emails will identify Client in the From line, include Client’s physical postal address, and a functional one‑click unsubscribe.
CAN‑SPAM (U.S.). Company implements accurate header info/subjects and processes unsubscribes supplied by Client. Client must honor email opt‑outs within 10 business days and maintain suppression lists.
TCPA / DNC (U.S. texts & calls).
No marketing autodialed/prerecorded texts/calls to wireless numbers without prior express written consent.
Client is responsible for: (i) consents; (ii) target selection; (iii) national/state Do‑Not‑Call scrubs and internal DNC (kept 5 years); (iv) honoring revocations (opt‑outs) within 10 business days (or faster if required).
State “mini‑TCPA” overrides. Client is responsible for stricter state rules (e.g., 8:00 p.m. local cut‑offs and per‑day contact limits). Company will apply Client‑specified throttles/suppressions.
Per-Message Liability Disclaimer. Company is not liable for any per-message, per-email, or per-call statutory penalties, carrier fines, or damages arising from Client’s contact lists, message content, timing, or targeting — including but not limited to penalties under the TCPA, CAN-SPAM Act, state “mini-TCPA” statutes, or carrier A2P/10DLC rules. Client assumes all such liability.
A2P/10DLC. Company registers brands/campaigns as configured by Client; carriers may block/penalize. No deliverability warranty.
6) Referral Outreach & Realtor Compensation (Client responsibility)
Role. Company provides marketing execution only. Company is not a real estate broker, property manager, settlement‑service provider, or party to any referral‑compensation arrangement. Company does not create, fund, hold, or remit referral fees.
Client Content & Offers. Client supplies/approves all message content (including any referral‑fee amounts) and warrants it is accurate, lawful, and not misleading in each targeted jurisdiction.
Licensing & Broker‑of‑Record (U.S.). If messages mention compensation to real‑estate licensees, Client represents such compensation is permitted by law and will be paid through the referring broker of record where required; Client will ensure any required licensee disclosures (and broker name/ID in ads). Company has no duty to verify licenses/broker relationships.
No Settlement‑Service Tie‑Ins (RESPA). Client will not instruct Company to market, bundle, or condition any referral fee on referrals of settlement services (e.g., lender, title, escrow, appraiser). Outreach must be independent of any mortgage/closing activity.
7) Compliance
Company implements: accurate email headers, truthful subjects, unsubscribe processing, suppression lists, quiet‑hours throttles, and A2P registration as configured by Client.
Client remains responsible for: (i) lawful initiation; (ii) list sources/targets; (iii) all consents for calls/texts; (iv) required notices/disclosures (including realtor‑compensation disclosures); (v) records (consents, W‑9s, referral agreements) and tax reporting (e.g., 1099‑NEC).
8) Consent & Quiet Hours (operational)
Client will not send prospect‑facing SMS or place marketing calls outside 8:00 a.m.–9:00 p.m. local time of the recipient or any stricter local/state window.
Templates must include brand identification and STOP/HELP instructions; Company will configure automation per Client instructions.
9) Domains, Subdomains & Deliverability
Control. Company controls Company‑owned sending domains/subdomains (e.g., *.strbookings.com) and may rotate, throttle, warm, or retire them at its discretion.
No Deliverability Warranty. Company is not liable for blocking, blacklisting, spam complaints, carrier filtering, or deliverability fluctuations. Third‑party platforms and carriers operate independently.
10) Suspension
Company may immediately suspend any campaign or sending domain/subdomain for suspected non‑compliance, domain‑reputation risk, non‑payment, or regulator inquiry. Suspension does not waive fees accrued.
11) Use of Business Name/Logo
Client grants Company a non‑exclusive, revocable, royalty‑free license to use Client’s name, trademarks, and logos solely to create, run, and report on campaign assets during the subscription. Company may make non‑substantive adjustments (size/format). All goodwill remains with Client.
12) Confidentiality & Data
Confidentiality. Non‑public business information is confidential; use only to perform obligations; protect with reasonable safeguards.
Client Data License. Client grants Company a non‑exclusive license to use Client data only to deliver services and improve fraud/spam prevention and deliverability (aggregate/de‑identified).
13) Disclaimer
Company facilitates lead generation and appointments. Outcomes depend on Client’s execution, follow‑up, and sales ability. No guarantee of results, revenue, or compliance outcomes.
14) Indemnity
Client will defend, indemnify, and hold harmless Company, its affiliates, and personnel from any claim, investigation, fine, loss, or cost arising out of: Client’s content, lists, targeting, instructions, referral‑fee practices, licensing status, tax/tax reporting, or outreach—including under CAN‑SPAM, TCPA, national/state DNC rules, RESPA/Reg X, and state real‑estate/advertising/compensation laws.
(Note: although recipients are U.S.‑based, Australian Spam/DNCR laws may still attach via “Australian link.” Company may rely on this indemnity accordingly.)
15) Limitation of Liability
Cap. Company’s total liability is limited to the fees paid by Client in the 12 weeks preceding the event giving rise to the claim.
No Indirects. No liability for indirect, incidental, special, consequential, lost profits/revenue, goodwill, or data loss.
Carve‑Outs. The cap does not apply to: Client’s indemnity obligations; unpaid fees; or regulatory penalties/statutory damages arising from Client content, lists, targeting, or instructions.
ACL savings. Nothing in this Agreement excludes non‑excludable rights under the Australian Consumer Law.
16) No Legal or Tax Advice
16A) Template Contracts (Availability; Use‑at‑Your‑Own‑Risk)
Availability. Company may make sample agreement templates (e.g., revenue‑management, full‑service management) available in the UpRev System.
Not Legal Advice; Non‑Reliance. Templates are examples for educational/informational purposes only, are not legal or tax advice, and create no attorney–client relationship. Client must obtain its own attorney to review, localize, and approve any template before use. Client agrees not to rely on any template.
As‑Is; No Warranties; No Updates. Templates are provided “AS IS” and “AS AVAILABLE”, without warranties of any kind (express, implied, or statutory), including accuracy, completeness, merchantability, or fitness. Company has no obligation to customize, maintain, or update templates.
Client Responsibility; Not a Party. Client is solely responsible for template selection, edits, implementation, compliance, and outcomes. Company is not a party to, and bears no responsibility for, any agreement Client executes with third parties.
Indemnity & Liability. In addition to §§14–15, Client will defend, indemnify, and hold harmless Company and its personnel from any claim, penalty, loss, or cost arising out of Client’s access to, customization of, or use of templates. To the maximum extent permitted by law, Company has no liability of any kind related to such access or use.
Acceptance. By accessing or using any template, Client accepts this §16A.
16B) Company does not provide legal or tax advice.
Client must obtain its own counsel regarding referral fees, licensing, disclosures, taxes (e.g., 1099‑NEC), and all compliance.
17) Termination for Cause
Either party may terminate for material breach not cured within 10 days of written notice. Fees accrued remain payable; Sections intended to survive do so.
18) Subcontractors
Company may use subcontractors; Company remains responsible for their performance.
19) Governing Law; Arbitration (NSW; international enforcement)
Law. New South Wales, Australia law governs (conflicts rules excluded).
Binding Arbitration. All disputes resolved by confidential, binding arbitration administered by ACICA under the ACICA Arbitration Rules 2021, seat Sydney, NSW, one arbitrator, English language. Judgment may be entered on the award.
Enforcement (Convention). The parties agree the New York Convention applies and consent to recognition/enforcement of awards in any competent court, including U.S. courts. To the extent applicable, the U.S. Federal Arbitration Act (FAA) Chapter 2 governs enforcement in the U.S.
No Class Actions. Disputes are individual; class/collective actions are waived to the maximum extent permitted.
Injunctive Relief. Either party may seek temporary injunctive relief in court to protect IP or confidentiality pending arbitration.
20) Miscellaneous
Assignment. Client may not assign without Company’s consent; Company may assign to an affiliate or in a sale/reorg.
Notices. By email to addresses on file; effective on send.
Force Majeure. No liability for delays/failures due to causes beyond reasonable control.
Updates. Company may update program‑wide compliance wording to reflect changes in law/carrier policy; material adverse changes to pricing/core features require Client consent.
Entire Agreement; Severability; Survival. This is the entire agreement; unenforceable terms are severed; Sections 3–20 survive termination as applicable.
Electronic Signatures. Electronic signatures are valid and binding (including under Electronic Transactions Act 2000 (NSW) and, to the extent applicable, U.S. E‑SIGN Act).
Authority to Bind. By signing, the signer confirms they are authorized to enter into this Agreement on behalf of Client.