Terms of Service

Last updated: December 7, 2021

These Terms of Service (“Terms”) apply to your access to and use of the websites and other online products and services (collectively, the “Services”) provided by Surge Labs, Inc. (“Surge” or “we”). By clicking “I Accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 15. If you do not agree to these Terms, do not use our Services.

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

If you have any questions about these Terms or our Services, please contact us at support@surgehq.ai.

Your continued use of this Service after such modifications will constitute acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service.

1. Privacy

For information about how we collect, use, share or otherwise process information about you, please see our Privacy Policy.

2. Eligibility

You must be at least 13 years of age to use our Services. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.

We neither endorse nor assume any liability for the contents of any material uploaded or submitted by third party users of the Service. However, we and our agents have the right at their sole discretion to remove any content that, in our judgment, does not comply with these Terms of Service and any other rules of user conduct for our site, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content.

You agree that we may at any time, and at our sole discretion, terminate your membership, account, or other affiliation with our site without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.

3. User Accounts and Account Security

You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

4. User Content

Our Services may allow you and other users to upload content, including messages, text, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Surge.

You grant Surge and its subsidiaries and affiliates a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, and create derivative works from your User Content as necessary to perform the Services. Notwithstanding anything to the contrary, to the extent the Services involve the labeling of User Content provided by or on your behalf (“User Data”), you hereby grant Surge a non-exclusive, irrevocable, worldwide, non-transferable, sublicenseable, fully paid-up, royalty-free, and perpetual license to use such User Data for Surge’s internal business purposes and to improve Surge’s service offerings.

You may not upload to the Services any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may remove User Content at any time and for any reason with or without notice.

5. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

Use or attempt to use another user’s account without authorization from that user and Surge;

Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;

Sell or resell our Services;

Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;

Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;

Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;

Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;

Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;

Develop or use any applications that interact with our Services without our prior written consent;

Bypass or ignore instructions contained in our robots.txt file; or

Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also upload only User Content that you have all necessary rights to disclose. You may not upload any User Content that:

Would violate any local, state, national or international law;

May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;

Contains any private or personal information of a third party without such third party’s consent;

Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or

In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Surge or others to any harm or liability of any type.

Enforcement of this Section 5 is solely at Surge's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party.

6. Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations, documents, work product and other content and materials contained therein or otherwise provided to you in connection with the Services, are owned by Surge or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

7. Trademarks

Surge Labs, Inc. and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Surge and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

8. Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Surge or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Surge’s sole discretion. You understand that Surge may treat Feedback as nonconfidential.

9. Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Surge does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

10. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Surge and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Surge Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly cooperate with Surge Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Surge Parties will have control of the defense or settlement, at Surge's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Surge or the other Surge Parties.

11. Disclaimers

Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Surge does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Surge attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

12. Limitation of Liability

To the fullest extent permitted by applicable law, Surge and the other Surge Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Surge or the other Surge Parties have been advised of the possibility of such damages.

The total liability of Surge and the other Surge Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Services within the past 12 months.

The limitations set forth in this Section 12 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Surge or the other Surge Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

13. Release

To the fullest extent permitted by applicable law, you release Surge and the other Surge Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

14. Publicity

You agree that Surge may use your trade names, trademarks, service marks, logos, domain names and other distinctive branch features in presentations, marketing materials, customer lists, financial reports and website listings for the purpose of advertising or publicizing your use of the Services. Upon request by Surge, you also agree to reasonably cooperate with Surge to produce and publish a public reference, case study and/or quote regarding your use of the Services, to be used for Surge’s marketing and publicity purposes.

15. Disputes

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Surge and limits the manner in which you can seek relief from us.

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Except for small claims disputes in which you or Surge seek to bring an individual action in small claims court located in the county of your billing address or claims for injunctive relief by either party, any dispute or controversy arising out of, in relation to, or in connection with these Terms or your use of the Services shall be finally settled by binding arbitration in Santa Clara County, California under the Federal Arbitration Act (9 U.S.C. §§ 1-307) and the then current rules of JAMS (formerly known as Judicial Arbitration & Mediation Services) by one (1) arbitrator appointed in accordance with such rules. Where arbitration is not required by these Terms, the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in Santa Clara, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE SALES TRANSACTIONS BETWEEN YOU AND SURGE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS AND CONDITIONS. YOU ALSO AGREE NOT TO BRING ANY LEGAL ACTION, BASED UPON ANY LEGAL THEORY INCLUDING CONTRACT, TORT, EQUITY OR OTHERWISE, AGAINST SURGE THAT IS MORE THAN ONE YEAR AFTER THE DATE OF THE APPLICABLE ORDER.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section by emailing us at support@surgehq.ai. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration.

16. Miscellaneous

These Terms, together with our Privacy Policy and any order forms you complete while registering or paying for the Services, constitutes the entire agreement between the parties relating to the Services and all related activities. These Terms shall not be modified except in writing signed by both parties or by a new posting of these Terms issued by us. If any part of these Terms is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. The failure of Surge to exercise or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver of any right or provision by Surge must be in writing and shall only apply to the specific instance identified in such writing. You may not assign these Terms, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without our prior written consent.