User Terms of Service
Last Revised: September 27, 2017
Welcome to Surkus, Inc. (“Surkus”, “we,” “us” or “our”) the service that matches and connects businesses with their perfect crowd and our members to experiences they will love.
These Terms of Service (“Terms”) govern your access and use of the Surkus mobile application (the “App”), our website located at www.surkus.com (the “Site”), our proprietary platform that powers the services (the “Platform”) and other online products and services (collectively with the App, the Site, and the Platform “Surkus Services”).
Accepting These Terms
BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE SURKUS SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW INCLUDING YOUR AGREEMENT TO SUBMIT DISPUTES TO BINDING ARBITRATION. Please read all of the terms before you use the 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.
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 Platform adapts 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.
Description of the Services
Through the Surkus Services, you can be connected with venues, casting agencies, productions, and others (each, an “Event Organizer”) who may need multiple people to serve as a crowd of attendees or audition for a production (each, an “Event”). When an Event Organizer requests Surkus Members for its particular Event, it will specify the number of people requested, the date, time and place of the Event, and additional criteria it seeks for each Surkus Member. If your profile indicates that you meet the specifications and criteria of the Event Organizer, you will receive a notification through the App or the Site about the Event. You may click “I’m Available” or a variation to indicate that you are willing to attend that Event. Once the Event Organizer has a full list of Surkus Members who have indicated they are available, we then send out invites to the Event based on the number of people the Event Organizer has requested. It is important to note, just because you have said you are available for an Event it does not guarantee you an invite to the Event. You may click “I’m Going” or a variation to indicate you have accepted an invite to attend an Event. If you cancel or do not check in via the App for the Event that you have agreed to attend, we may suspend your access to and use of the Surkus Services, in our sole discretion.
You and other users of the Surkus Services are each deemed a “Surkus Member.” For more information about the Surkus Services, please see our Frequently Asked Questions.
To use the Surkus Services, you will need to create an account through Facebook login. When you create an account, you must elect to allow Surkus to access certain elements of your Facebook account, such as your Likes, photos, contacts, and other information, which will be used to evaluate your eligibility for an Event. You are responsible for all activity performed through your account and accept all risk that someone may access your account without your permission. If you discover or suspect any security breach of the Surkus Services, please let us know as soon as possible. By creating an account with Surkus, you represent and warrant to us that you are at least 13 years old and that all information that you provide in connection with your account is at all times accurate, truthful, current and complete. Surkus reserves the right to deny any individual an account at our discretion. You promise to update the information you have provided to Surkus in the event of any changes to your contact information. In addition, factors such as number of Events, availability of members already using the Platform, and size of member base can affect a person’s ability to create an account. Also, you are and will be solely responsible for all of the activity that occurs through your account, so please keep your password and account information secure.
Payment for Attending Events
You must maintain and provide at all times complete and accurate information for your deposit accounts such as PayPal, bank account or other similar payment platforms which Surkus has approved and we will have no liability to you for your failure to maintain complete and accurate payment information. You will receive any applicable payment for attending an Event upon verification of attendance for the full duration of the event and verification of any additional tasks to be completed by you (such as post on social media, complete survey questions, etc.). We verify attendance via various mechanisms including geolocation information collected by the App from your mobile device and manual attendance verification. It is important that you maintain your mobile device powered on and with you while attending an Event and continue to allow the App access to your geolocation information. If an Event is canceled, Surkus is under no obligation to pay you. If you leave an Event for any reason prior to conclusion, you will not be paid for that Event. If you leave an Event early due to a safety concern, please contact us. Your Event payment may be reduced or withheld if you do not adhere to our code of conduct or event-specific instructions or duties.
Surkus does not intend to appoint you or any other Surkus Member as its employee, legal agent or to form any kind of legal partnership or joint venture. You are not authorized to make any commitments on behalf of Surkus and Surkus will not make commitments on your behalf, except as contemplated by the Surkus Services or expressly stated in these Terms.
Right to Use the Surkus Services
On the condition that you fully comply with these Terms, Surkus grants you a limited, nonexclusive, non-transferable and revocable license to access and use the Surkus Services for your own personal, non-commercial use. Each Surkus Member can only access their own Surkus account in order to check in at an Event. It is the responsibility of each Surkus Member to ensure that their account is controlled by only them at all times. The terms of this license will also govern any upgrades provided by Surkus that replace and/or supplement any Surkus Services, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Except as expressly authorized by these Terms, you may not (a) modify, disclose, alter, translate or create derivative works of the Surkus Services, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Surkus Services, (c) disassemble, decompile or reverse engineer any of the software components of the Surkus Services, (d) copy, frame or mirror any part of the Surkus Services, (e) interfere with or disrupt the integrity or performance of the Surkus Services, or (f) attempt to gain unauthorized access to the Surkus Services or its related systems or networks.
Prohibited Use of the Surkus Services
You may not do any of the following in connection with the Surkus Services or other Surkus Members:
- Use the Surkus Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Surkus Members from fully enjoying the Surkus Services or that could damage, disable, overburden or impair the functioning of the Surkus Services;
- Collect any personal information about other Surkus Members;
- Intimidate, threaten, stalk, bully or otherwise harass other Surkus Members;
- Create an account if you are not over 13 years of age;
- Use the Surkus Services as a platform for dating or matchmaking services or any other purpose not expressly permitted by Surkus;
- Use the Surkus Services for any illegal or unauthorized purpose or to engage in, encourage or promote any activity that is unlawful or that violates these Terms; or
- Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Surkus Services, Surkus Members, or third parties.
Prohibited Activities at an Event
You are prohibited from engaging in the following, and any allegation that you have done so at an Event may result in your account and access to the Surkus Services being terminated:
- The unauthorized use, possession, manufacture, distribution or sale of an illegal drug, controlled substance or drug paraphernalia at an Event;
- Engaging in illegal solicitation or pandering;
- Attending an Event while under the influence of illegal drugs or a controlled substance whose use is unauthorized.
You are expected to use common sense and to know your own limits pertaining to the consumption of alcohol. YOU ALSO ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO CONSUME ALCOHOL AT AN EVENT IS SOLELY A PERSONAL DECISION AND YOU ASSUME ALL RISKS, AND ACCEPT FULL RESPONSIBILITY, FOR YOUR CONSUMPTION OF ALCOHOL.
Release of Liability
YOU VOLUNTARILY ATTEND ANY EVENT, WITH KNOWLEDGE OF ANY DANGER OR HAZARDOUS ACTIVITIES INVOLVED, AND HEREBY ACCEPT ANY AND ALL ASSOCIATED RISKS. YOU FURTHER RELEASE (BOTH ON BEHALF OF YOU AND YOUR FAMILY, FRIENDS, HEIRS, EXECUTORS, AND PERSONAL REPRESENTATIVES), Surkus, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS (COLLECTIVELY, THE “RELEASEES”), FROM AND AGAINST ANY LOSS (WHETHER OF WAGES OR OTHER EARNINGS, CONSORTIUM OR OTHERWISE), INJURY, DISABILITY, DEATH, COST, EXPENSE, DAMAGE (WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL AND/OR OTHERWISE) OR OTHER CLAIM OF ANY KIND WHATSOEVER (COLLECTIVELY, “CLAIMS”) DIRECTLY OR INDIRECTLY ARISING OR RESULTING FROM, OR OTHERWISE RELATING TO, YOUR ATTENDANCE AT AN EVENT. YOU FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE RELEASEES FROM AND AGAINST ANY AND ALL DEMANDS, SUITS, PROCEEDINGS, ACTIONS, JUDGMENTS AND OTHER CLAIMS OF ANY KIND WHATSOEVER THAT ANY OF THEM MAY SUFFER OR INCUR, DIRECTLY OR INDIRECTLY, ARISING OR RESULTING FROM, OR OTHERWISE RELATING TO, YOUR ATTENDANCE AT AN EVENT OR ANY RESULTING OR RELATED ACTS, EVENTS OR CIRCUMSTANCES. YOU ACKNOWLEDGE THAT Surkus DOES NOT OWN, ENDORSE OR CONTROL ANY EVENT POSTING AND ALL EVENT POSTINGS ARE ENDORSED BY THE PRODUCER OF SUCH EVENT.
Disputes between You and an Event Organizer
Your use of the Surkus Services is at your own risk. Surkus is not responsible or liable for the conduct of, or your interactions with, any other Surkus Member. Event attendee or Event Organizers (or their employees or contractors) or for any related damage or harm. The Surkus Services are merely a neutral means of connecting you with Event Organizers. Any dispute that you may have regarding the conduct of any Event Organizer or the quality or characteristics of an Event is between you and the applicable Event Organizer.
Reporting and Removal
You may report content to Surkus that you think violates these Terms, and Surkus 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 user.
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 users 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 website 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 description of the copyrighted work that you believe has been infringed;
- a description of the material that you claim is infringing the copyrighted work identified in #1, and a detailed description of where it is located on our Application; your address, telephone number, and email address;
- 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
- 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 Agent: Surkus Support Team
Address of Designated Agent: 7083 Hollywood Blvd. Suite 620 Los Angeles, CA 90028
Email Address of Designated Agent: [email protected]
Phone number of Designated Agent: (323) 767-8890
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.
Any suggestions, comments or other feedback you give us about the Surkus Services (the “Feedback”) will constitute our confidential information. We are free to use, disclose, reproduce, license, distribute and exploit this Feedback as we see fit, without compensation to you or any obligation or restriction because of any intellectual property rights or otherwise.
EXCEPT AS REQUIRED OTHERWISE OF Surkus BY APPLICABLE LAW, THE Surkus SERVICES AND ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES (INCLUDING ANY MEMBER CONTENT) ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW WE DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), AND ALL OTHER TERMS WHICH MAY BE IMPLIED INTO THESE TERMS BY LAW, WITH RESPECT TO THE SURKUS SERVICES AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SURKUS SERVICES (INCLUDING ANY MEMBER CONTENT).
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SURKUS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROPERTY, PHYSICAL LOSSES, DEATH OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, THE SURKUS SERVICES (INCLUDING MEMBER CONTENT), EVENTS, AN EVENT ORGANIZER’S CONDUCT, AND/OR THIRD PARTY SERVICES OR MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF Surkus HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
FOR ANY LOSS OR DAMAGE THAT IS NOT EXCLUDED UNDER THESE TERMS, THE TOTAL LIABILITY OF SURKUS AND ITS DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES AND INVESTORS TO YOU WILL NOT EXCEED USD $100.00 (one hundred US dollars).
Surkus provides the Surkus Services to allow Event Organizers and Surkus Members to connect in an easy and efficient way. Except as expressly provided in these Terms, Surkus and the Event Organizer(s) do not intend to take liability with respect to your use of the Surkus Services. AS SUCH, YOU WAIVE ANY AND ALL RIGHTS YOU HAVE TO SUE OR MAKE CLAIMS AGAINST Surkus AND ITS DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES (THE “Surkus PARTIES”) AND THE EVENT ORGANIZER(S) FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE Surkus SERVICES INCLUDING, WITHOUT LIMITATION, IN THE CASE OF THE Surkus PARTIES, ANY ACTIONS OR INACTION OF THE EVENT ORGANIZER(S). YOUR WAIVER DOES NOT EXTEND TO ANY DAMAGES OR LOSSES RESULTING FROM ANY PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH STATES: “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.”
You will defend us from and against any actual or threatened suits, actions, proceedings (at law or in equity), and claims, and indemnify us for any and all damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any of your conduct with respect to the Surkus Services or your violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your Surkus account.
Third-Party Software and Links
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.
Changes to the Services
Surkus reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the Surkus Services and/or any features, information, materials or content on the Surkus Services with or without providing notice to you. Surkus will not be liable to you or any third party for any changes or discontinuance of the Surkus Services or any part of the Surkus Services.
Consent to Electronic Communications
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. To withdraw your consent from receiving electronic notice, please notify us at [email protected].
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’ 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.
Governing Law; Arbitration
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 mediation, 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.
Enforcement of these Terms is solely at Surkus’ discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect. The section headings of these Terms are for reference purposes only and will not affect the meaning or interpretation of these Terms.
These Terms (and the other policies and terms referred to above) make up the entire agreement between you and us regarding the Surkus Services, and they supersede any prior agreements that may have been made.
If you have any questions about these Terms, please email us at [email protected].
Notice for California Users
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.