Surkus, Inc.

Terms of Service

 

Last revised: October 15, 2019

 

Welcome to Surkus, the service that connects consumers to experiences they will love and matches businesses with their target customers.  Through our websites, mobile apps and services, we enable people all over the world to discover, create, attend or participate in events or offers that are of particular interest to them. We are excited you are here.

Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations.

 

Accepting These Terms

Surkus’ offerings are available online through various Surkus website properties and through our mobile applications (collectively, the “Surkus Services”). BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE SURKUS SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS BELOW INCLUDING YOUR AGREEMENT TO SUBMIT DISPUTES TO BINDING ARBITRATION. Please read all of the terms before you use Surkus Services. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms below, you may not use the Surkus Services. You must be at least 13 years old to use the Surkus Services.

 

When these Terms use the term “Surkus”, “we”, ”us”, or “our”, that refers to Surkus, Inc. and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, partners, and employees. When these Terms use the phrase “Producer” or “Producers”, it means Event or Offer creators using the Surkus Services to create Events or Offers displayed on the Surkus Services for consumers using our Surkus Services (a) to consume information about or attend Events or participate in an Offer (“Member” or “Members”), or (b) for any other reason. Producers, Members and third parties using our Surkus Services are all referred to in these Terms collectively as “Users”, “you”, or “your”. A live event a Member could attend is referred to as an “Event” or “Events” while “Offer” or “Offers” means a digital offer to purchase or sign up for service, receive a free or discounted product, write a review or other offers.  The content, including without limitation information, data, text, editorial content, design elements, look and feel, formatting, graphics, images, photographs, videos, music, sounds and other content contained in or delivered via the Surkus Services or otherwise made available by Surkus in connection with the Surkus Services is the "Surkus Content". Any material (including the foregoing categories) that you contribute, provide, post or make available using the Surkus Services is "Your Content".

Surkus’ Community Guidelines are applicable to all Users of the Surkus Services.  If you are an Producer offering Events or Offers, Surkus’ Producer Agreement is also applicable to you. Please be on the lookout for additional terms of service displayed with certain services that you may use from time to time as those will also be applicable to you. And, by agreeing to these Terms of Service, you acknowledge you have read the Privacy Policy applicable to all Users. We may sometimes provide you with services that are not described in these Terms, or customized services; unless we have entered into a separate, signed agreement that expressly supersedes these Terms, these Terms will apply to those services as well.

 

These Terms and the other documents referenced in them comprise Surkus’ Terms of Service. These Terms are a legally binding agreement between you and Surkus governing your access to and use of the Surkus Services and setting out your rights and responsibilities when you use the Surkus Services. By using the Surkus Services (including browsing the Surkus Services), you are agreeing to these Terms. If you do not agree to these Terms, please do not use or access the Surkus Services. If you will be using the Surkus Services on behalf of an entity (such as on behalf of your employer), you agree to these Terms on behalf of that entity and its affiliates and you represent that you have the authority to do so. In such case, "you" and "your" will refer to that entity as well as yourself.

 

Modifications

 

We reserve the right to change these Terms from time to time. For example, we may need to change these Terms if we come out with a new feature or as our services adapt to changes in the market and our user base. If we make changes, we will notify you by revising the date at the top of the Terms and, in some cases, we will provide you with additional notice (such as adding a statement to our homepage or sending you an email notification). We encourage you to review these Terms periodically to stay informed about our practices.

 

Whenever we make changes to these Terms, they are effective when the revised Terms are posted unless we notify you otherwise. If you continue to use the Surkus Services after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.

 

Surkus’ Role

Surkus is not the creator, organizer or owner of the Events and Offers listed on the Surkus Services. Rather, Surkus provides its Surkus Services to Producers, which allow Producers to promote their Events and Offers. A Producer is solely responsible for ensuring that their description of an Event or Offer listed on the Surkus Services (and the Event or Offer itself) meet all applicable local, state, provincial, national and other laws, rules and regulations, and that any goods and services are delivered as described and in an accurate satisfactory manner.

 

Disputes Between Members and a Producers

 

Members use of the Surkus Services is at you’re their own risk. Surkus is not responsible or liable for the conduct of, or Member’s interactions with, any other Surkus Member, Event attendee or Producers (or their employees or contractors) or for any related damage or harm. The Surkus Services are merely a neutral means of connecting Members and Producers.  Any dispute that a Member may have regarding the conduct of any Producer or the quality or characteristics of an Event or Offer is between the Member and the applicable Producer.

Your Account

 

We may require you to create an account to access certain features or functions of the Surkus Services. You agree to follow certain rules when you create an account with Surkus or use the Surkus Services, including the following:

 

a)         You are responsible for all activity performed through your Surkus account and accept all risk that someone may access your account without your permission. If you discover or suspect any security breach of your Surkus account, please let us know as soon as possible at [email protected]

 

b)        You represent and warrant to us that you are at least 13 years old. If you are under the age of 13, do not use our Surkus Services or create an account or provide any information about yourself to us.

 

c)         You agree to provide true, accurate, current and complete information about yourself, or if you are using the Surkus Services on behalf of an entity, the entity ("Account Data"). You also agree to update this Account Data if it changes.

 

d)        If you are using the Surkus Services on behalf of a company or other entity, you represent and warrant that you have the authority to legally bind that entity and grant Surkus all permissions and licenses provided in these Terms.

 

e)        If there is a dispute between two or more persons or entities as to account ownership, Surkus will be the sole arbiter of that dispute and Surkus’ decision (which may include termination or suspension of the account) will be final and binding on those parties.

 

f)          Surkus may, at its sole discretion, limit access to the Surkus Services or terminate your account.

 

Member Rewards

 

Surkus makes available the opportunity for Members to earn rewards (“Reward” or “Rewards”) through the Surkus Services for the successful completion of an Event or Offer. When you earn a Reward through Surkus Services, it will be credited to your Surkus Balance Account. Surkus has established relationships with Producers to provide Members with a variety of ways to earn Rewards (“Reward Earning Activities” or “Reward Earning Activity”).  A Reward Earning Activity is defined as completing all the requirements listed in the description of an Event or Offer.  A Reward Earning Activity can have as few as one (1) requirement or multiple requirements.  Reward Earning Activities are made available to Members based on a variety of factors, including demographic information, interest-based information, physical location, and engagement level with the Surkus Services.

 

Completion of Event or Offer / Reward Earning Activities

 

To receive a Reward, a Member must successfully complete all the requirements listed for the Event or Offer on the Surkus Services. Partial completion of the requirements for an Event or Offer does not satisfy the conditions to earn a Reward.

 

When participating in an Event, Members should ensure their mobile device is charged and has access to their cellular network.  If your mobile device dies, loses connection, and/or you otherwise do not complete all of the required participation requirements in the time periods required, Surkus cannot guarantee approval of your Reward Earning Activity. Checking in with the venue or Event Producer does not qualify as checking in within the Surkus App. You must check in and complete any additional required participation requirements (including a check out before you leave the Event if applicable) within the Surkus App to receive the Reward for that Event.

 

We verify attendance via various mechanisms including geolocation information collected by the Surkus App from your mobile device and if required, manual attendance verification. It is important that you ensure your mobile device is powered on and with you while attending an Event and continue to allow the Surkus App access to your geolocation information. If an Event is canceled, we are under no obligation to credit you any Rewards. If you leave an Event for any reason prior to conclusion, you will not be credited Rewards for that Event. If you leave an Event early due to a safety concern, please contact us at [email protected] Your Rewards for an Event may be reduced or withheld if you do not adhere to our Community Guidelines or Event-specific instructions or duties.

 

When participating in an Offer, Members must complete all of the requirements listed for the Offer on the Surkus Services within the time allotted for each individual requirement.

 

Crediting of Rewards / Reward Earning Activities

 

Upon completion and successful review and approval by Surkus of a Reward Earning Activity the Reward for an Event or Offer will be credited to the Member’s Surkus Balance Account within ninety six (96) hours of the Event or Offer ending. If you completed all the required participation requirements for an Event or Offer and do not see a Reward credited to your Surkus Balance Account, please contact [email protected]  Members have one hundred and twenty (120) hours after the Event or Offer ends to notify Surkus of any issues with Rewards.

 

Surkus has the final say in whether or not a Member is credited a Reward. Surkus makes no guarantee that Members will receive a Reward for completing a Rewarding Earning Activity.

 

About Your Surkus Balance Account

 

Rewards are posted to your Surkus Balance Account as described in the other sections of these Terms, and are subject to your compliance with all Terms. Your Surkus Balance Account is non-transferable and non-assignable, and may not be pooled, lent, sold, or exchanged. We may change rules about requesting payments equal to the cash balance or redeeming other credits in your Surkus Balance Account at any time and such changed rules will apply to Rewards already posted to your Surkus Balance Account as well as to Rewards to be posted in the future. You may request payment equal to the cash balance of your Surkus Balance Account (also referred to as “Redeeming Cash”) only as permitted by these Terms. Redeeming Cash and receipt of any corresponding payment by you is contingent upon your: (i) full compliance with these Terms generally, and (ii) receipt of your request for us to convert the Rewards in your Surkus Balance Account to a payment. Further, the Rewards in your Surkus Balance Account may be cancelled at any time pursuant to these Terms and represent only a method by which we track your Reward Earning Activities and a contingent liability by us, unless and until final payment occurs on the corresponding payment instrument we deliver to you pursuant to these Terms.

 

If you elect to close your Surkus account and you have an undistributed balance in your Surkus Balance Account that meets or exceeds the Minimum Payment Amount (as described below), you will be required to request payment, in accordance with these Terms, prior to closing your Surkus account.  Once you request your Surkus account be closed, all the accumulated Rewards in your Surkus Balance Account are forfeited. If at the time of closing you have less than the Minimum Payment Amount in your Surkus Balance Account, any rights you have to the balance in your Surkus Balance Account will terminate and you will no longer be eligible to receive a payment for any balance in your Surkus Balance Account.

 

Minimum Cash Request Requirement

 

NO REDEEMING CASH UNTIL YOU HAVE AT LEAST FIVE DOLLARS POSTED TO YOUR SURKUS BALANCE ACCOUNT ($5.00 USD or equivalent in local currency) (the “Minimum Payment Amount”). The terms “cash,” “dollars,” and similar terms are used interchangeably in this document, but it is important to note that Rewards posted to your Surkus Balance Account are unearned and a contingent obligation as described in these Terms. You have no right to redeem the Rewards in your Surkus Balance Account, and we have no liability or obligation to pay you whatsoever, unless and until you have accumulated in your Surkus Balance Account at least the Minimum Payment Amount in your Surkus Balance Account and have otherwise complied with these Terms.

 

For example, if you successfully complete a Reward Earning Activity and a Reward of three dollars ($3.00 USD) is posted to your Surkus Balance Account, for a total of three dollars ($3.00 USD) in your Surkus Balance Account, you are not eligible to receive any payment, and we are not liable to you for any amount. In this example, you would have to earn additional Rewards that have a dollar value of at least two dollars ($2.00 USD), for a total of five dollars ($5.00 USD) in Rewards posted to your Surkus Balance Account before you would be able to receive a cash payment.

 

Requesting Payment

 

You can request a cash payment from your Surkus Balance Account, subject to these Terms, by clicking the “Transfer Balance” link located on the Surkus Balance Account page and completing all additional steps relating to verification of information and completion of request. As noted above, you may not request payment from your Surkus Balance Account which has no actual cash value until at least the Minimum Payment Amount is posted to your Surkus Balance Account and the conditions herein are otherwise satisfied. Currently, the Minimum Payment Amount required when requesting a payment is five dollars ($5.00 USD); however, this amount may change in the future. All payment requests must be made for the total amount present and available, in your Surkus Balance Account at the time you are requesting payment.

 

Surkus uses PayPal as its third party payment provider.  You must have unique, verified PayPal account in order to receive cash payments. In addition, requests made for cash payments facilitated by PayPal are subject to any and all applicable terms and conditions set by, and/or fees incurred through PayPal. Members are responsible to review all terms/conditions governing PayPal prior to completing a payment request. By completing a request for payment through PayPal, you are indicating that you have reviewed and agree to PayPal’s Terms of Service.

 

If there is an issue with your PayPal account or you have difficulty accessing or securing the funds on PayPal, Surkus bears no responsibility after the payment has been transferred to the PayPal account you’ve provided.

 

Tax Matters

 

Depending on applicable federal, state, and local tax laws, your distribution or accrual of cash or Rewards may be subject to taxes. You will be solely responsible for any and all tax liability arising out of your receipt of cash or Rewards and you agree to provide Surkus with information Surkus requests in connection with applicable federal, state, and local tax laws. You are solely responsible for any tax liability (including fees, penalties or fines) incurred by Surkus as a result of your action or inaction in connection with the foregoing (including your failure to provide Surkus with information). Surkus is further authorized to offset such tax liability from any payment you receive from your Surkus Balance Account.

 

Fraud Prevention

 

Surkus reserves the right to request further information from Members to ensure they have not fraudulently completed Reward Earning Activities. As a Member, you agree that your use of the Surkus Services shall not be fraudulent, deceptive or unlawful, as determined by our sole and absolute discretion.

 

Surkus reserves the right to place any payment request on hold or deny the payment request, for any reason, if a Member is in violation of the Terms.  Furthermore, Surkus reserves the right, in our sole discretion, to terminate a Surkus Member‘s account and cancel all Rewards posted to their Surkus Balance Account, in addition to any other legal remedies, in the event we determine that a Member’s is activity fraudulent, deceptive, unlawful or in violation of these Terms.  All decisions by Surkus regarding fraud or suspected fraud are binding and final.

Community Guidelines

You agree to abide by the Surkus’ Community Guidelines whenever you use or access our Surkus Services. Please read these carefully, as they affect what types of content and conduct are permitted on and through the Surkus Services.

 

Privacy

We know your personal information is important to you and it is important to Surkus as well. Information provided to Surkus by Users or collected by Surkus through Surkus’ various sites and applications, is governed by our Privacy Policy.

 

If you are an Producer, you represent, warrant and agree that (a) you will at all times comply with all applicable local, state, provincial, national and other laws, rules and regulations with respect to information you collect from (or receive about) Members, and (b) you will at all times comply with any applicable policies posted on the Surkus Services with respect to information you may collect from (or receive about) Members.

 

Release and Indemnification

You agree to cover Surkus if you use the Surkus Services in a way that causes Surkus to be the subject of a legal matter, or to face other claims or expenses, or as otherwise set forth herein, to the extent permitted by applicable laws.

 

You hereby agree to release Surkus from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with the Surkus Services or any Event or Offer listed on the Surkus Services. In addition, you waive any applicable law or statute, which says, in substance: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY 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 RELEASED PARTY."

You agree to defend, indemnify and hold Surkus and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise) or investigation made by any third party (each a "Claim") relating to or arising out of: (i) your breach of these Terms (including any terms or agreements or policies incorporated into these Terms); (ii) your use of the Surkus Services in violation of these Terms or other policies we post or make available; (iii) your breach of any applicable local, state, provincial, national or other law, rule or regulation or the rights of any third party; (iv) Surkus’ collection and remission of taxes; and (v) if you are a Producer, your

Events or Offers (including where Surkus has provided Surkus Services with respect to those Events or Offers), provided that this indemnification will not apply to the extent that the Claim arises out of Surkus’ gross negligence or willful misconduct. Surkus will provide notice to you of any such Claim, provided that the failure or delay by Surkus in providing such notice will not limit your obligations hereunder except to the extent you are materially prejudiced by such failure. Also, in certain circumstances, Surkus may choose to handle the Claim ourselves, in which case you agree to cooperate with Surkus in any way we request.

 

Disclaimer of Warranties and Assumption of Risks by You

 

We strive to provide Surkus Services in the way you need them, but there are some things it is important for you to understand that we cannot promise.

To the extent permitted by applicable laws, the Surkus Services are provided on an "as is" and "as available" basis. Surkus expressly disclaims all warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability, title, non-infringement and fitness for a particular purpose. For example, Surkus makes no warranty that (i) the Surkus Services (or any portion of the Surkus Services) will meet your requirements or expectations; (ii) the Surkus Services will be uninterrupted, timely, secure, or error free; or (iii) the results that may be obtained from the use of the Surkus Services will be accurate or reliable.

You acknowledge that Surkus has no control over and does not guarantee the quality, safety, accuracy or legality of any Event, Offer or content associated with an Event or Offer, or the truth or accuracy of any information provided by Users (including the personal information shared with Producers in connection with Events or Offers). Surkus has no responsibility to you for, and hereby disclaims all liability arising from, the acts or omissions of any third parties that Surkus requires to provide the Surkus Services.

You understand and agree that some Events or Offers may carry inherent risk, and by participating in those Events or Offers, you choose to assume those risks voluntarily. For example, some Events or Offers may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Events or Offers.

The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights, however, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law.

Limitation of Liability

To the extent permitted by applicable laws, or as otherwise set forth herein, Surkus and any person or entity associated with Surkus’ provision of the Surkus Services (e.g., an affiliate, vendor, strategic partner or employee) ("Associated Parties"), will not be liable to you or any third party, for: (i) any indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, opportunity costs, intangible losses, or the cost of substitute services (even if Surkus has been advised of the possibility of such damages); or (ii) Your Content. In addition, the maximum aggregate liability of Surkus or Associated Parties is limited to the following:

 

a)         for Producers that paid us, and subject to the terms of the Producer Agreement, the fees that you paid us in the ninety (90) day period immediately preceding the circumstances giving rise to your Claim; and

 

b)        for Producers that did not pay us, Members or other Users one hundred ($100) USD.

Nothing in these Terms is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by willful acts, negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only those liability and other limitations which are lawful in your jurisdiction (if any) will apply to you and our liability is limited to the maximum extent permitted by law.

 

IMPORTANT: ARBITRATION AND CLASS ACTION WAIVER PROVISIONS

 

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH SURKUS AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SURKUS.

 

These Terms shall be governed by and construed in accordance with the laws of the State of California and the United States of America, without resort to any conflict of law provisions.

 

In the event of any controversy or claim arising out of or relating in any way to these Terms or the Surkus Services, you and Surkus agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other demand mediation under the mediation rules of the JAMS/Endispute (“JAMS”) in Los Angeles, California. Both you and Surkus both give up the right to litigate disputes and may not proceed to arbitration without first trying meditation, but you and Surkus are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Whether the dispute is heard in arbitration or in court, you and Surkus will not commence against the other a class action, class arbitration or other representative action or proceeding.

 

If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of JAMS before a single arbitrator in Los Angeles, California. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.

 

For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in Los Angeles, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use of the Surkus Services.

You have the right to opt out and not be bound by the arbitration or class action waiver provisions set forth above by sending (from the email address we associate with you as a User) written notice of your decision to opt-out to [email protected], with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of your first use of the Surkus Services or your agreement to these Terms (whichever is later); otherwise, you will be bound to arbitrate disputes in accordance with the terms of those paragraphs. Note that if you opt out of these arbitration provisions, Surkus also will not be bound by them.

License to the Surkus Services 

Surkus grants you a limited, non-exclusive, non-transferable, non-sublicensable revocable right to use our Surkus Services solely to browse the Surkus Services and search for, view, create or request access to an Event or Offer listed on the Surkus Services. Your use of the Surkus Services must be in compliance with these Terms and in compliance with all applicable local, state, provincial, national and other laws, rules and regulations.

Without limitations on other restrictions, limitations and prohibitions that we impose (in these Terms or elsewhere), you agree you will not directly or indirectly (a) copy, modify, reproduce, translate, localize, port or otherwise create derivatives of any part of the Surkus Services; (b) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Surkus Services; (c) rent, lease, resell, distribute, use the Surkus Services for other commercial purposes not contemplated or otherwise exploit the Surkus Services in any unauthorized manner; (d) remove or alter any proprietary notices on the Surkus Services; (e) engage in any activity that interferes with or disrupts the Surkus Services; or (f) attempt to gain unauthorized access to the Surkus Services or its related systems and networks.

You agree that all Surkus Content may be protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. Surkus may own the Surkus Content or portions of the Surkus Content may be made available to Surkus through arrangements with third parties. Surkus Content included in or made available through the Surkus Services is the exclusive property of Surkus and is protected by copyright laws. You agree to use the Surkus Content only for purposes that are permitted by these Terms and any applicable local, state, provincial, national or other law, rule or regulation. Any rights not expressly granted herein are reserved.

The trademarks, service marks and logos of Surkus (the "Surkus Trademarks") used and displayed in connection with the Surkus Services are registered and unregistered trademarks or service marks of Surkus. Other company, product and service names used in connection with the Surkus Services may be trademarks or service marks owned by third parties (the "Third Party Trademarks," and, collectively with Surkus Trademarks, the "Trademarks"). The offering of the Surkus Services will not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Surkus Services without the prior written consent of Surkus specific for each such use. The Trademarks may not be used to disparage Surkus, any third party of Surkus’ or such third party's products or services, or in any manner that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless Surkus approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Surkus Trademark will inure to Surkus’ benefit.

 

Suspension and Termination

 

Surkus may suspend or terminate your rights to access or use the Surkus Services for any reason or for no reason at all and with or without notice at Surkus’ sole discretion. All of the terms of these Terms (excluding the license grant) will survive any termination or suspension. Termination of access to the Surkus Services will not release either party from any obligations incurred prior to the termination and Surkus may retain and continue to use for its own internal purposes any information previously provided by you.

 

Licenses and Permits Producers Must Obtain

If you are a Producer, without limiting the generality of any representations or warranties provided elsewhere in these Terms, you represent and warrant to us that:

 

a)         You and your affiliates will obtain all applicable licenses, permits, and authorizations (individually and collectively, "Licensure") with respect to Events hosted by you or your affiliates on the Surkus Services. Licensure includes, but is not limited to, property operation permits and fire marshal permits;

 

b)        You and your affiliates will comply, and will ensure that the venues for each Event hosted by you or your affiliates on the Surkus Services will comply, with all applicable laws, regulations, rules and ordinances;

 

c)         You will post an Event on the Surkus Services only after you have obtained any specific Licensures for such Event, including, but not limited to, any state, county, municipal or other local authority's authorization of the Event, traffic engineering authorizations, fire department inspection reports, authorization to receive minors (if applicable), sanitary authorization (if applicable), and any other potential applicable authorization;

 

d)        Without limiting the generality of any release provided under these Terms, as a material inducement to Surkus permitting you to access and use the Surkus Services, you hereby agree to release Surkus, and its affiliates and subsidiaries, and each of its and their respective parent companies, subsidiaries, officers, affiliates, representatives, shareholders, contractors, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, including, without limitation, attorneys' fees, known and unknown, arising out of or in any way connected with your or your affiliates' Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure.

 

e)        Without limiting your indemnification obligations elsewhere under these Terms, you agree to defend, indemnify and hold Surkus, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any Claim due to or arising out of your or your affiliates' Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure. You agree to provide evidence of Licensure for Events on the Surkus Services and promptly upon the reasonable request of Surkus from time to time.

 

Scraping or Commercial Use of Surkus Content is Prohibited

The Surkus Content is not intended for your commercial use. You have no right to use, and agree not to use, any Surkus Content for your own commercial purposes. You have no right to, and agree not to scrape, crawl, or employ any automated means to extract data from the Surkus Services(s).

 

Your Content

Surkus does not make any claim to Your Content. However, you are solely responsible for Your Content. You hereby grant Surkus a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable right and license to access, use, reproduce, transmit, adapt, modify, perform, display, distribute, translate, publish and create derivative works based on Your Content, in whole or in part, in any media, for the purpose of operating the Surkus Services (including Surkus’ promotional and marketing services, which may include without limitation, promotion of your event on a third party website), and you hereby waive any and all moral right to use the name you submit with Your Content. Notwithstanding the foregoing, Surkus does not claim, and you do not transfer, any ownership rights in any of Your Content and nothing in these Terms of Service will restrict any rights that you may have to use and exploit Your Content outside of the Surkus Services.

You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (a) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party; (b) complies with all applicable local, state, provincial, national and other laws, rules and regulations; and (c) does not violate these Terms.

Your Content must be accurate and truthful. Surkus reserves the right to remove Your Content from the Surkus Services if Surkus believes in its sole discretion that it violates these Terms, our Community Guidelines, or for any other reason. Surkus may use your name and logo (whether or not you have made it available through the Surkus Services) for the purpose of identifying you as an existing or past customer of Surkus both on the Surkus Services and in marketing, advertising and promotional materials. We likewise may preserve Your Content and account information and may also disclose Your Content and account information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) respond to claims that any of Your Content violates the rights of third parties; (c) enforce or administer these Terms, including without limitation, these Terms of Service; and/or (d) protect the rights, property and/or personal safety of Surkus, its users and/or the public, including fraud prevention. You understand that the technical processing and transmission of the Surkus Services, including Your Content, may involve transmissions over various networks and/or changes to conform and adapt to technical requirements of connecting networks or devices.

Submitting a Copyright Takedown Notice

 

You may report content to Surkus that you think violates these Terms, and Surkus its sole discretion may remove such content, suspend or terminate the account of the Surkus Member who posted or otherwise made available such content and/or take additional action to enforce these Terms against such Member.

 

Surkus respects copyright law and expects Surkus Members to do the same. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Surkus has adopted a policy of terminating, in appropriate circumstances and at Surkus’ sole discretion, Surkus Members or account holders who are deemed to be repeat infringers. Surkus may also at its sole discretion limit access to the Surkus Services or terminate the accounts of any Members who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

 

If you believe that your work has been copied and posted on our Surkus Services in a way that constitutes copyright infringement, you should provide our Copyright Agent with a written notice that sets forth the infringement details. To be effective, the notice must contain the following information:

 

a)         a description of the copyrighted work that you believe has been infringed;

 

b)        a description of the material that you claim is infringing the copyrighted work identified in (a), and a detailed description of where it is located on our Application; your address, telephone number, and email address;

 

c)         a written 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; and

 

d)        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; and an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.

 

Designated Copyright Agent: Surkus Support Team

Address of Designated Copyright Agent: 3232 Nebraska Avenue, Santa Monica, CA 90404

Email Address of Designated Copyright Agent: [email protected]  

 

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Surkus or the alleged infringer as the result of Surkus relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

 

Notices

 

By using the Surkus Services, you agree that we may communicate with you electronically regarding your use of the Surkus Services and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. We may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to you generally on the Surkus Services. If you wish to contact Surkus, deliver any notice or withdraw your consent from receiving electronic notice, you can do so at Surkus, Inc., Attn: Legal Department 3232 Nebraska Ave, Santa Monica, CA, 90404, USA or via email to [email protected]  

 

Assignment 

We may, without your consent or approval, freely assign these Terms and our rights and obligations under these Terms whether to an affiliate or to another entity in connection with a corporate transaction or otherwise.

Entire Agreement

Except as otherwise set forth herein, these Terms constitute the entire agreement between you and Surkus and govern your use of the Surkus Services, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and Surkus on the subject matter hereof, other than any written agreement for Surkus Services between you and an authorized officer of Surkus relating to a specified Event or Offer.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Surkus Services ("Feedback"). Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

 

Third party Software, Links and Offers

 

The software you download consists of a package of components, including certain third party software provided under separate third party license terms. Your use of this third party software in conjunction with the Surkus Services in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable third party license terms, and nothing in these Terms is intended to impose further restrictions on your use of this third party software.

 

Surkus Services may contain links to third party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. Surkus does not endorse any such sites or the information, materials, products or services contained on or accessible through such sites. Surkus has no control over, and assumes no responsibility for, the content, privacy policies or practices of any third party websites or services. If you access a third party website from Surkus Services, you do so at your own risk, and you understand that these Terms do not apply to your use of such sites. You expressly relieve Surkus from any and all liability arising from your use of any third party website or services or third party owned content. Additionally, your dealings with or participation in promotions of advertisers found on Surkus Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Surkus shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers. Surkus encourages you to be aware when lea Surkus Services, and to read the terms and conditions and privacy policy of any third party website or service that you visit.

 

Applicable Law and Jurisdiction

These Terms are governed by the laws of the State of California, without regard to its conflict of laws rules. These laws will apply no matter where in the world you live, but if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law.  Surkus is based in Santa Monica, California and any legal action against Surkus related to our Surkus Services and that is not precluded by the arbitration provisions in these Terms must be filed and take place in Santa Monica. Thus, for any actions not subject to arbitration, you and Surkus agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in Los Angeles County, California.

Contracting Entity

 

The contracting entity on the other side of these Terms is Surkus, Inc., a Delaware corporation, with its principal place of business at 3232 Nebraska Avenue, Santa Monica, CA 90404.

 

General Provisions

Our failure to enforce any part of these Terms will not constitute a waiver of our right to later enforce that or any other part of these Terms. No oral waiver, amendment or modification of these Terms will be effective. If any provision of these Terms is found to be unenforceable, that part will be limited to the minimum extent necessary the other provisions of these Terms remain in full force and effect. Section titles in these Terms are for convenience and have no legal or contractual effect. No independent contractor, agency, partnership, joint venture or other such relationship is created by these Terms.

 

Notice for California Users

 

Pursuant to Cal. Civil Code § 1789.3, if you are a California resident, you may have these Terms mailed to you electronically by sending a letter with your email address and a request for these Terms to Surkus, 3232 Nebraska Avenue, Santa Monica, CA 90404. If you have a complaint regarding Surkus Services or desire further information please contact [email protected] You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, CA 95814 or by telephone at (916) 445-1254 or (800) 952-5210.