The following terms and conditions govern your use of the Surge Holdings, Inc. mobile device application "SurgeRewards" (the "App or Application"). The App is owned and operated by Surge Holdings, Inc. ("Surge").
For the purposes of this Agreement, the "App or Application" means a mobile device application and all content, products, promotions, services and functionality available at or through the mobile device application. The App allows businesses and advertisers (collectively, "Advertisers") to deliver ads, surveys, deals, news, and other advertising content (collectively, "Ad Content") on the mobile handset of consumers who have either downloaded and installed the App or purchased a handset with the App preinstalled or received via Over the Air update from the OEM. The users of this Application are referred to collectively as "Users", and each, a "User". The App is offered subject to the terms and conditions contained herein and in all other operating rules, policies and procedures that may be published from time to time through the Surge websites and App (collectively, the "Agreement").
PLEASE NOTE THAT THIS AGREEMENT CONTAINS MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS.
By clicking on or pressing "I accept", "I agree" or similar verbiage during the download and/or signup progress, or by accessing or using any other part of the App, you agree to become bound by the terms and conditions of this Agreement, which form a legally binding contract between you and Surge. If you do not agree to all the terms and conditions of this Agreement, then you may not download the Application, use a phone with Application or access or use any Surge App, applications, or associated services. If you are using the App on behalf of an employer or another entity, you represent and warrant that you have the authority and capacity to bind such entity to the Agreement.
The App is available only to individuals who are at least 18 years old. If you are less than 18 years old, you may not download the Surge App or use the App, applications, or associated Services. No purchase, payment or other financial contribution is necessary to enter or win prizes, and any and all Promotions are void where prohibited by law.2. ACCEPTABLE USE
Whether or not you register for an account with us, the App is only available for access and use by you for lawful purposes. You understand that when using the Application, you may be exposed to user content (including, without limitation, Ad Content) provided by other users or third parties, and you agree that Surge is not responsible for the accuracy, safety, appropriateness or intellectual property rights in or related to such user content. Any action by you or associated with your account that we believe, in Surge's sole and absolute discretion: (a) violates the Agreement; (b) restricts, inhibits, disrupts, interferes with, limits, or prevents access or use of the App; or (c) through the use of the App, abuses, defames, harasses, disparages or threatens another user of the App or any other Third-Party, is strictly forbidden.
Advertisers also may not solicit other users of the App for commercial purposes, unless permitted by and in accordance with an Advertising Agreement; use the App to distribute or post solicitations, promotional materials, spam, junk mail, chain letters, or pyramid schemes, unless permitted by and in accordance with an Advertising Agreement; use metatags or any other "hidden text" utilizing any of Surge's or any ThirdParty's product names or trademarks; harvest or otherwise collect personal information about users, including e-mail addresses, without their consent; use any robot, spider, crawler, scraper or other automated means to access the App, unless permitted by and in accordance with an Advertising Agreement; take any action that imposes or may impose (in Surge's sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; or bypass any measures we may use to prevent or restrict access to the App or certain features or modules of the App.
We reserve the right to immediately block or disable your ability to advertise in the Application, and/or otherwise terminate your access to the App, if, in Surge's sole and absolute discretion, we believe that you have engaged in any of the foregoing activities or that they have occurred in association with your account or password.3. SURGE INTELLECTUAL PROPERTY
The proprietary software associated with the Application including any enhancements or modifications thereto and any related documentation, as well as the visual and textual elements and the selection, arrangement and compilation of data embodied in (and/or displayed during the execution of) the software, are copyrighted works and exclusively owned by Surge. In addition, the App, including all software, Surge content, inventions, technology, products, and Surge data provided on the Surge websites or through the App, are protected under United States and international copyright, patent, trademark and/or other intellectual property laws and incorporate valuable confidential information and trade secrets of Surge, and are the exclusive property of Surge and its licensors. All suggestions, requests and feedback you may communicate to us regarding the App, and all inventions, improvements, modifications, product or service ideas, and concepts contained therein (collectively, "Feedback"), shall become the exclusive property of Surge. You hereby assign all worldwide rights, title and interest in such Feedback to Surge and agree to execute and deliver any assignments or other instruments or documents that we may request in order to confirm, perfect, record or enforce Surge's rights with respect to the Feedback.4. LIMITED LICENSE
Subject to your compliance with all of the terms and conditions of this Agreement, and in consideration of your promises reflected in this Agreement, Surge grants to you a limited, personal, non-exclusive, revocable, non-sublicensable, non-transferable license to use the Application on a single mobile device, for your internal personal or commercial purposes but not for commercial resale, sublicensing, timesharing or service bureau usage. All rights not expressly granted to you by the foregoing sentence are reserved by Surge. Without limiting the generality of the foregoing, you may not interfere with the App in any way, or copy, modify, distribute or reverse engineer, decompile or disassemble the Application or make any derivative works based on the Application (including any customization, translation, or localization). Your compliance with the requirements in this Section 4 is a condition to, and material inducement and consideration for, our granting you the right to access and use the Application and the App. Any unauthorized use or other activity by you in violation of the Agreement will cause the licenses granted to you by Surge in this Section 4 to terminate automatically.
This Agreement does not transfer from Surge to you any Surge or third-party intellectual property, and all right, title and interest in such property will remain solely with Surge or such Third-Party, as applicable. All rights not expressly granted in this Agreement are reserved to Surge, the Surge logo, and all other trademarks, service marks, graphics and logos used or displayed in connection with the App are trademarks or registered trademarks of Surge or Surge' licensors. Your use of the App grants you no right or license to reproduce or otherwise use any Surge or third-party trademarks.5. USER ACCOUNTS
To be eligible you will be directed to register on the App and create a user profile or account ("Account"). Eligibility is limited to residents of the United States and persons over the age of 18 or to persons who have reached the age of majority in their countries of residence. As part of the registration process, you will be asked to submit your name, address, email address, date of birth and/or similar information and to select a password. You agree that all information you provide to Surge for purposes of creating an account ("Registration Information") will be true, accurate, current and complete and your failure to provide such information shall constitute a breach of this agreement and may result in the immediate termination of your Account and forfeiting any won prizes. You shall (i) promptly update your Registration Information to keep it true, accurate, current and complete; and (ii) maintain the confidentiality of your password.
In creating an Account, you shall not (a) select or use the email address or username of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, (c) use an email address or user name that is profane, offensive or otherwise inappropriate or (d) allow any other party to use your Account and/or password except as set forth herein.
You may not share or transfer any Account. You may not disclose your password to anyone. You agree to immediately notify Surge by sending an email to [email protected] of any known or suspected unauthorized use(s) of your Account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your password. You understand and agree that you shall be liable for all activities that occur under any Account created for your use, even if such activities were not committed by you. Surge is not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password.
A. Application Registration and Use: Surge shall register the App with an identifiable Surge ID that, once activated, will begin displaying Ad Content on the handset of your mobile phone. After that, all of your interactions with Surge will be recorded, stored in Surge's servers, and associated with your User Account.
Surge reserves the right to add, change, modify, suspend or discontinue any portion of the Service, in its sole discretion, at any time. Your use of the Surge websites and/or the Application, including the availability of new services through the App, shall be subject to this Terms and Conditions Agreement. If your account is flagged for suspicious activity, we reserve the right to suspend the account and or disable the redeem option while we review the suspicious activity. This process can take up to 30 days. During this period your account will be limited.
B. Application Termination: You may close your User Account at any time by emailing the Surge support group at [email protected] and requesting to be opted out. In addition, Surge also reserves the right to terminate your User Account at any time for breach of this Agreement. Surge may do this without prior notice; but may attempt to notify you afterward where feasible.6. ADVERTISERS
Advertisers may access details pertaining to the performance of advertising campaigns managed by Surge in connection with the App by requesting such information from Surge during and after the advertising campaign. You agree not to use any of the information accessed or obtained from Surge except for internal business purposes in connection with this Agreement.
Advertisers' use of the App is subject to all the terms and conditions in their respective Advertising Agreements with Surge. In the event of any conflict between this User License Agreement and Terms of Service and the Advertising Agreement, the Advertising Agreement shall control solely with respect to the specific advertising campaigns and other activities described in the Advertising Agreement.7. DATA COLLECTOIN
Whenever you utilize the App from your mobile phone, you thereby agree to receive such App on the device you designate for such purposes and understand that your wireless or internet services provider's standard data rates may apply to the App. By using the App, you agree to be responsible for any fees that we may impose or that are incurred as a result of your use of the App. You hereby represent and warrant that you are the owner or authorized user of any smartphone or other wireless device that you use to access the App, and that you are authorized to approve all associated data charges9. THIRD-PARTY LINKS AND SITES
As Surge asks others to respect its intellectual property rights, it respects the intellectual property rights of others, and requires its users and customers to do so. If you are a copyright owner or an agent thereof and believe that any user content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Surge with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
From time to time, the Application may automatically download and install, or may prompt you to download and install, updates from Surge. These updates are designed to improve, enhance and further develop the Application and may take the form of bug fixes, enhanced functions, new software modules and/or completely new versions. You agree to receive such updates (and permit Surge to deliver these to you) as part of your continued use of the Application.
Surge is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form, features and/or nature of the Application which Surge provides may change from time to time without prior notice to you. Surge may also cease or discontinue providing the Application, or support or upgrades for the Application, at any time. Such new features and/or App shall be subject to the terms and conditions of the then-current version of the Agreement as well as any additional terms and conditions that Surge may post on the Surge Websites or make available through the App. Surge may also modify or eliminate the App, modules or features of the Application; your sole and exclusive remedy, and Surge' sole liability, in connection with any such change, modification or elimination is to terminate your account with Surge.
Surge may terminate your access to all or any part of the App, or block or disable your access or use of the Application, at any time, with or without cause, with or without notice, effective immediately. Without limiting the foregoing, Surge may terminate your access to all or any part of the App, stop displaying Ad Content on your handset, or block or disable your access or use of the Application, if:
Termination may result, in Surge' sole discretion, in the forfeiture and destruction of all information associated with your account and any Rewards or any advertising revenue earned prior to such date. All provisions of this Agreement which by their nature should survive termination of this Agreement, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and miscellaneous terms, shall do so. If your account is cancelled or terminated for any reason, you will no longer be able to access information you have stored under your account.13. DISCLAIMER OF WARRANTIES
YOU AGREE THAT USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. THE APP IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. SURGE AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APP AND/OR YOUR USE THEREOF INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, FREEDOM FROM VIRUSES, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS.
SURGE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APP AND/OR THEIR CONTENT OR THE CONTENT OF ANY PRODUCTS OR SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES, APP (INCLUDING, WITHOUT LIMITATION, THE AD CONTENT) AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APP, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE APP, YOUR ACCOUNT OR THE SURGE SERVERS, AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP, (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE, ADWARE AND/OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APP BY ANY THIRD-PARTY, (VI) ANY LOSS OR DAMAGE TO CONTENT OR DATA (WHETHER STORED THROUGH THE APP OR OTHERWISE), OR (VII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, IMPORTED, TRANSMITTED, DISTRIBUTED, OR OTHERWISE MADE AVAILABLE VIA THE APP. SURGE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR OPPORTUNITY ADVERTISED OR OFFERED BY AN ADVERTISER OR THIRDPARTY THROUGH THE APP, OR ANY HYPERLINKED OR INTEGRATED WEBSITE OR APP, AND SURGE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING OR ENFORCING ANY TRANSACTION BETWEEN YOU AND ANY THIRDPARTY (INCLUDING ANY ADVERTISER OR OTHER THIRD-PARTY WHICH OFFERS OR ATTEMPTS TO TAKE ADVANTAGE OF A DEAL OR PROMOTION THROUGH THE APP).
Some states do not allow the disclaimer of implied warranties in some circumstances, so if the laws of such a state apply to your dealings with us and if the requisite circumstances exist in your case, then some portion or all of the foregoing disclaimer may not apply to you. The law of warranty varies from state to state and the law applicable in your particular case may give you specific legal rights.14. LIMITATION OF LIABILITY; RELEASE
UNDER NO CIRCUMSTANCES SHALL SURGE OR ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE APP) WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SURGE OR ANY OF THE FOREGOING PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT THE LIABILITY OF SURGE AND ITS AFFILIATES, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS FOR ANY CLAIM OR SERIES OF CLAIMS WILL BE LIMITED IN THE AGGREGATE TO THE GREATER OF (i) THE AMOUNT PAID BY YOU TO US FOR THE RELEVANT APP TO WHICH THE CLAIM OR CLAIMS RELATE DURING THE PREVIOUS SIX (6) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIM OR SERIES OF CLAIMS OR (ii) FIFTY U.S. DOLLARS ($50.00).
YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE THE SURGE WEBSITES , THE APPLICATION AND SURGE AND ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ALL OTHER RELATED PERSONS OR ENTITIES, FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, SUITS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SURGE WEBSITES, OR THE APP. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR" (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.
The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.15. REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) your use of the App will be in strict accordance with the Agreement and with all applicable laws and regulations (including, without limitation, any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and all applicable laws regarding the transmission of technical or personal data exported from or into the United States or the country in which you reside, and all applicable laws pertaining to privacy, consumer rights, and unfair and deceptive advertising practices); and (ii) your use of the App will not infringe or misappropriate the intellectual property rights or any other rights of Surge or of any other user or ThirdParty.16. INDEMNIFICATION
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Surge, its affiliates and its and their respective members, managers, officers, employees, representatives and agents (the "Indemnified Parties") from and against any and all claims, actions, lawsuits, damages, obligations, complaints, demands, allegation , losses, liabilities, costs or debt, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") arising out of or related to or in connection with your actual or alleged (a) use of and access to the Surge Websites, and the Application, (b) violation, breach or default of any term of the Agreement, (c) violation by you or your Ad Content of any ThirdParty right including, but not limited to, any patent, trademark, service mark, copyright, trade secret, publicity or privacy right, or (d) any claim that you or any content which you submit or transmit via the App (including, without limitation, your Ad Content) caused damage to a Third-Party17. NOTICES
Except as provided in the next paragraph with respect to requests for injunctive relief relating to a breach of your license rights or Surge intellectual property rights, any controversy, claim or dispute arising out of this Agreement or your use of the App shall be resolved by final and binding arbitration. Such arbitration shall take place in Las Vegas, Nevada and shall be administered by a single arbitrator pursuant to the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator shall be empowered to award any form of individual relief, including injunctive relief, and shall be instructed to apply the laws of the State of Nevada (excluding its applicable choice of law rules) to any interpretation or enforcement of this Agreement. In order to keep costs down, hearings may, at your request, be conducted telephonically or entirely upon submissions. In addition, in the event that you prevail at the hearing, and the amount awarded to you by the arbitrator is greater than Surge last written settlement offer to you, Surge agrees to pay twice the amount of your reasonable attorney's fees and costs, and a minimum award of five hundred dollars ($500).
You expressly consent to the exercise of jurisdiction and venue by the state and federal courts located in Las Vegas, Nevada. However, if we think you are violating your license to use the App or Surge's intellectual property or trade secret rights, we may bring an action for injunctive relief in any court of competent jurisdiction.
In addition to the above, both you and Surge waive the right to bring any claim or dispute related to this Agreement as a class action, consolidated, multi-district or collective action, or private attorney general action. You also agree not to participate in any class action, consolidated, multi-district or collective action, or private attorney general action regarding any claim or dispute related to this Agreement.
If Surge prevails in any arbitration or proceeding to enforce the Agreement or arising out of your access to or use of the App, it shall be entitled to recover, in addition to all other available legal and equitable relief, its legal costs, including reasonable attorneys' fees. If any part of the Agreement is held invalid or unenforceable, that part will be reformed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. The provisions of the Agreement are severable, and if any portion is adjudged invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain valid, enforceable and in effect. Any waiver by either party of any term or condition of the Agreement or any breach thereof shall be in writing, executed by the party to be charged, and any such waiver, in any one instance, will not waive such term or condition in any other instance or any subsequent breach thereof. The Agreement is not assignable by you, except by operation of law; Surge may assign its rights under the Agreement without condition. The Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.18. THIRD-PARTY TERMS
Users agree that in addition to the Agreement, your use of the Application is subject to the usage rules set forth in Google Play's terms of service, if you download the Application from Google Play, or any other Third-Party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download the Application or otherwise access the App19. HOW TO CONTACT US
You may direct any questions, complaints or claims with respect to the Application or the Surge Websites to [email protected]ANY USE OF ANY IMPROPER SOFTWARE TO MANIPULATE THE SURGE APP WILL RESULT IN A PERMANENT BAN.