Surfmark End User License Agreement and Surfmark Terms of Service

Date of Last Revision: May 06, 2010

Section 1: SURFMARK SOFTWARE LICENSE

Important - please read the terms of this software license agreement ("Software License") carefully. By clicking on the "I Agree" button or by downloading or installing or using the Software (as defined below), (1) you acknowledge that you agree to be bound by this Software License, and (2) you represent that you have the authority to enter into this Software License. If you do not agree to all terms and conditions of this Software License you should click on the "Cancel" button to discontinue the download or stop the installation of the Software (as the case may be), or should discontinue any use of the Software.

This Software License is a legal agreement between you, the end user ("End User" or "you") and Surfmark, Inc., located at 3 Lagoon Drive, #180. Redwood City, CA, 94065, ("Surfmark", "us" or "we"), for the license of the Surfmark toolbar and desktop application for the Microsoft Internet Explorer web-browser, Mozilla Firefox web-browser Microsoft Windows XP, Vista and 7 operating systems and Mac OS X operation systems which includes computer software and electronic documentation (the "Software").

  • SOFTWARE LICENSE. Surfmark grants you a non-transferable, non-exclusive, non-sublicensable, royalty-free and fully paid, worldwide right and license to reproduce (solely to install and execute) the Software on one of your computers, in executable object code format only, for your personal, non-commercial use only, subject to the terms and conditions of this Software License. You are permitted to download the Software multiple times in order to install the Software on multiple computers, provided that you agree to the terms and conditions of this Software License each time you download the Software.
  • RESTRICTIONS. You may not modify, make derivative works of, copy, reproduce, publish, or reverse engineer the Software, except in the case of reverse engineering, only to the extent required by applicable law. You may not license, sell, transfer, distribute, rent, lease or otherwise transfer or exploit rights to the Software. You may not use the Software in any manner that could damage, disable, overburden or impair the Surfmark website ("Website"), nor may you use the Software in any manner that could interfere with any other party's use and enjoyment of the Website. You agree that you will use the Software for lawful purposes and only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws. Your right to use the Software will terminate immediately if you violate any provision of this Software License. Upon termination, you may no longer use the Software.
  • INTELLECTUAL PROPERTY. The Software is licensed, not sold. You acknowledge that Surfmark and its licensors and content and service providers ("Surfmark Licensors") own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to the Software, portions thereof, or software provided through or in conjunction with the Software. "Intellectual Property Rights" means all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law and all other proprietary rights, and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You also agree not to remove, obscure, or alter Surfmark's copyright notice, trademarks or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software. All rights not expressly granted to you are reserved by Surfmark or its suppliers.
  • DISTRIBUTION. Surfmark allows and encourages all web sites, on-line services, shareware disk vendors, CD-ROM vendors, bulletin board systems, and end-users to freely distribute the "preview" version of the Software for non-commercial use, provided they keep this "Terms of Service" agreement intact. If you wish to distribute the Software, you may obtain the most recent version from www.surfmark.com. It is generally not necessary to contact Surfmark for authorization, and you may begin offering the preview version of the software for personal and non-commercial use immediately. If you wish to use the software for commercial use please contact support@surfmark.net.
  • DISCLAIMER OF WARRANTIES. Surfmark and the Surfmark Licensors disclaim any responsibility for harm resulting from your use of the Software. The Software is provided "as is," with no warranties whatsoever. Surfmark and the Surfmark Licensors expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including without limitation the warranties of merchantability, fitness for a particular purpose, title, and noninfringement of proprietary rights. Surfmark and the Surfmark Licensors disclaim any warranties regarding the security, reliability, timeliness and performance of the Software. You understand and agree that you download and use the Software at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download or use of the Software. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
  • BASIS OF BARGAIN.The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between Surfmark and you. We would not be able to provide the Software on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of our suppliers.
  • LIMITATION OF LIABILITY. Under no circumstances shall Surfmark or the Surfmark Licensors be liable to any user on account of that user's use or misuse of the Software. Such limitation of liability shall apply to prevent recovery of indirect, incidental, consequential, special, exemplary and punitive damages, whether such claim is based on warranty, contract, tort (including negligence) or otherwise (even if Surfmark or the Surfmark Licensors have been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from use or misuse of and reliance on the Software, from the performance or misperformance of the Software, from inability to use the Software, or from the interruption, suspension or termination of the Software (including such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law. Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you. Surfmark's aggregate cumulative liability under this Software License shall not exceed the amounts paid by you for the Software (if any).
  • INDEMNIFICATION. You agree to indemnify and hold harmless Surfmark, the Surfmark licensors and their subsidiaries, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents, from any liability, cost, expense, or claim or demand made by any third party, due to or arising directly or indirectly out of your conduct or in connection with your use of the Software or its features, any alleged violation of this Software License, or any alleged violation of any applicable law or regulation. Surfmark and the Surfmark licensors reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, but doing so shall not excuse your indemnity obligations.
  • TERM AND TERMINATION. This Software License and the licenses granted hereunder are effective on the date you accept the terms of this Software License or use the Software and shall continue until terminated by either party pursuant to this section. We may terminate this Software License at any time, with or without cause. You may terminate this Software License at any time, with or without cause by (1) uninstalling and (ii) requesting the termination of your Surfmark account. Upon expiration or termination, the license granted hereunder shall terminate and you shall immediately delete and destroy any copies of the Software in your possession, but the terms of this Software License which are intended to survive termination will remain in effect.
  • SOFTWARE AND POLICY UPDATES. This Software License may be amended by Surfmark from time to time. If we make material changes to the Software License, we will send you notice of the changes by sending a message to you at your Surfmark InBox accessible through your Surfmark account. You agree that such amended Software License will be effective 30 days after the notice is sent to you, and your continued access to the Website or use of the Software after that time shall constitute your acceptance of the amended Software License. Surfmark may automatically update or modify the Software from time to time at its discretion. You may not be able to use the Website or other services offered on the Website if you do not have the latest version of or updates for the Software installed.
  • EXPORT LAWS. You are responsible for complying with trade regulations and both foreign and domestic laws. You acknowledge that the Software or underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; (b) to anyone on the US Treasury Department's list of Specially Designated Nationals or on the US Commerce Department's Denied Party or Entity List; and (c) you will not export or re-export the software to any prohibited country, person, end-user or entity specified by US Export Laws.
  • PRIVACY AND OTHER USER AGREEMENTS.Your use of the Software is subject to the terms of the Surfmark Privacy Policy. Because the Software works in conjunction with the Website, you will also be subject to the Surfmark Terms of Service as mentioned under "SURFMARK TERMS OF SERVICE" in section 2 of this document.
  • RESOLUTION OF DISPUTES. If a dispute arises between you and Surfmark, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Surfmark agree that we will resolve any claim or controversy at law or equity that arises out of this Software License or our services (a "Claim") in accordance with one of the paragraphs below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by writing to support@surfmark.net. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

    Law and Forum for Disputes - This Software License shall be governed in all respects by the laws of the State of California without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You agree that any claim or dispute you may have against Surfmark must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.

    Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

  • Improperly Filed Claims. All claims must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Surfmark may recover attorneys' fees and costs up to $1000, provided that Surfmark has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
  • MISCELLANEOUS PROVISIONS. If for any reason a court of competent jurisdiction finds any provision or portion of this Software License to be unenforceable, the remainder of the Software License will continue in full force and effect. Sections 2-7, 10, 12, and 13 of this Software License will survive any termination of this Software License. This Software License constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. To the extent that there is a conflict between the terms of this Software License, the terms of the Surfmark Privacy Policy or Surfmark Terms of Service, or the terms of Surfmark Copyright policy, this Software License shall have precedence as to the subject matter of this Software License. Except as otherwise provided in Section 9, any modifications of this Software License must be in writing and agreed to by both parties. Any waiver of any provision of these Software License will be effective only if in writing and signed by Surfmark.

    Questions Or Additional Information. If you have questions regarding this Software License, or wish to obtain additional information, please send an e-mail to support@surfmark.net.

Section 2: SURFMARK TERMS OF SERVICE

Surfmark, Inc. ("Surfmark", "us", or "we") provides in connection with the Surfmark Software (the "Software") and the Surfmark website, located at www.surfmark.com, and all subdirectories or subextensions thereof (collectively, the "Website") services that allow users to explore the Internet, find new websites that may be of interest to them, receive recommendations of websites from Surfmark, and join a community of individuals with similar tastes and interests (the "Surfmark Services"). The services offered by us include the Surfmark Services, the Website, and any other features, content, or, applications offered from time to time by us in connection with the Surfmark Services and Website (collectively, the "Services").

These Surfmark Terms of Service ("Agreement"), along with Surfmark's Privacy Policy, located at www.surfmark.com/Policies/Privacy ("Privacy Policy") and Surfmark's Copyright Policy at www.surfmark.com/Policies/Copyright ("Copyright Policy"), set forth the legally binding terms for your use of the Services. By accessing and using the Services through the Software or Website, you agree to comply with and be bound by this Agreement and the Privacy Policy, whether you are a "Visitor" (meaning you are simply browsing the Website) or you are a "Surfmark Member" (which means that you have registered with us and have contributed content). The term "User" refers to a Visitor or a Surfmark Member. This Agreement may be amended by Surfmark from time to time. If we make material changes to the Agreement, we will send you notice of the changes by sending a message to your contact email address. You agree that such amended Agreement will be effective 30 days after the notice is sent to you, and your continued access to the Website or use of the Services after that time shall constitute your acceptance of the amended Agreement.

In order to fully participate in our Surfmark Services, you have to download the Software and agree to the associated Software License mentioned under "Surfmark Software License" in Section 1.

  • SURFMARK ACCOUNT
    • 1.1 Eligibility. By using the Services, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are thirteen (13) years of age or older; and (d) your use of the Services does not violate any applicable law or regulation. Your Surfmark Profile may be deleted without warning if we have reason to believe that you do not meet eligibility requirements.
    • 1.2 Account information. When you sign up to become a Surfmark Member, you will also be asked to provide a contact email and choose a user 'nickname' for your Surfmark Profile. Surfmark does not ask you to create a password. Instead it uses third party authentication providers including Google,Yahoo!, Facebook and Twitter for account authentication. You are entirely responsible for maintaining the confidentiality of your authentication information and all use of your Surfmark Profile. You agree not to use the Surfmark Profile or authentication information of another Surfmark Member at any time. You agree to notify us immediately if you suspect any unauthorized use of your Surfmark Profile or access to your password.
    • 1.3 Fees. You acknowledge that we reserve the right to charge for the Services and to change the fees from time to time in our discretion, upon notice to you at the then-current e-mail address stored in your Surfmark Profile.
    • 1.4 Restrictions. Multiple Surfmark accounts held by the same individual are subject to termination unless expressly authorized in advance and in writing by Surfmark. Accounts created with the primary intention to promote a product or service are considered "SPAM" and subject to termination unless expressly authorized in advance in writing by Surfmark.
    • 1.5 Term. This Agreement shall remain in full force and effect while you use the Services or are a Surfmark Member. You may delete your Surfmark Profile and end your membership at any time, for any reason by contacting a member of Surfmark team. We may terminate your membership for any reason, effective upon sending notice to you at the then-current e-mail address in your Surfmark Profile.
    • 1.6 Effects of Termination. You understand that termination of this Agreement and your Surfmark Profile may involve deletion of your Surfmark Profile information from our live databases. We may also delete all public and private Surfmarks that you had published. We will not have any liability whatsoever to you for any termination of your Surfmark Profile or related deletion of your information. Finally, when an account is terminated, we reserve the right to re-issue the username they had selected (for the now deleted account).
  • WEBSITE
    • The Software and Website are made available to you for your personal, non-commercial use only (at home or at work). You may not modify, reproduce, distribute, publish, license, create derivative works from or sell any information or software associated with the Website, without first obtaining written permission from Surfmark by contacting us at the following email address: support@surfmark.net. Furthermore, you may not use the Software or Website in any manner that could damage, disable, overburden, or impair the Services (e.g., you may not use the Software or Website in an automated manner), nor may you use Software or Website in any manner that could interfere with any other party's use and enjoyment of the Services. You may not use any third party toolbars, software, or scripts to access the Website or the Websites underlying technology or software.
  • INTELLECTUAL PROPERTY
    • 3.1 Ownership. You acknowledge that Surfmark owns all right, title and interest in and to the Services, including without limitation, the Software, Website, and all underlying software and technology, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
    • 3.2 Content. Surfmark's goal is to create a massive repository of shared knowledge by channeling the collective effort of communities large and small who share common passions. You are welcome to create Surfmarks on any topic as long as they content no hate, no libel, no pornographic content and no copyright infringement. Therefore any "Content" (which means any and all public Surfmarks, e-mails, messages, recommendations, comments, text, files, images, photos, video, sounds, works of authorship, feedback, bug reports, or other materials) that you post will freely licensed and can be modified or deleted by other visitors to the site. Except otherwise specified, the publicly available content on Surfmark site is licensed under the Creative Commons Attribution-Share Alike License 3.0 (Unported) (CC-BY-SA). You can read the license summary here or the full legal code here. We do not claim ownership in any public or private content, but to be able to legally provide you with and promote the Services, we have to have certain rights to use such Content in connection with the Services, as set forth below. The Creative Commons Attributioin-Share Alike License 3.0 is not applicable to any private Surfmarks that you have published. We do not claim ownership in any public or private content, but to be able to legally provide you with and promote the Services, we have to have certain rights to use such Content in connection with the Services. By posting any 'private' Surfmark and associated Content, you hereby grant to us an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free, license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display, create derivative works of, and distribute such Content in any and all media or distribution method (now known or later developed) throughout the world to extent needed to render the services. Additionally, by posting any Content on the Services and making your Content available to others ("Third Parties") via RSS distribution, you hereby grant to all Third Parties an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free, license (with the right to sublicense through unlimited levels of sublicensees) to copy, display, and distribute such Content in any and all media (now known or later developed) throughout the world. No compensation will be paid with respect to the Content that you submit, upload, post, transmit or otherwise make available through the Services. You should only upload Content to the Services that you are comfortable sharing with others and allowing others to modify under the terms and conditions set forth herein. Other users of the Service will be able to view and modify any Content you post to the Services, subject to your limited ability to prevent access to your Content (where applicable) by changing your account preferences and settings.
    • 3.3 Restrictions. Except for that Content that is owned by you, that is in the public domain, for which you have been given written permission, or as expressly permitted under this Agreement, you agree not to (i) modify, publish, transmit, distribute, perform, sell, or create derivative works based on the Content and Services; and (ii) rent, lease, loan, or sell access to the Services; (iii) decompile, reverse engineer, or copy any Content (other than the Content you provide) or the Services for which the source code is not provided to you. You also agree to not remove, obscure, or alter Surfmark's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within Software. You will not: (i) cover or obscure the banner advertisements on your Surfmark Profile page, or any Surfmark page via HTML/CSS, scripting, or any other means, if any or (ii) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
    • 3.4 Objectionable Content. We reserve the right to remove content (including websites) that we determine in our sole discretion are unlawful, fraudulent, threatening, libelous, defamatory, obscene or otherwise objectionable. Any account posting or hosting objectionable content or recommending objectionable websites are subject to termination. Also, we reserve the right to remove content that we determine in our sole discretion is primarily intended to promote a product or service.
  • ACCEPTABLE USE AND CONDUCT

    You are solely responsible for any and all Content that is published or displayed ("posted", as used herein) by or through your Surfmark Profile on the Services, including any e-mail, and for your interactions with other Users.

    • 4.1 Prohibited Content. You agree that you will not post any Prohibited Content. "Prohibited Content" includes, without limitation, Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind; (ii) harasses or advocates harassment of another person; (iii) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, or "spamming,"; (iv) is false or misleading or promotes, endorses or furthers illegal activities; (v) promotes, copies, performs or distributes an illegal or unauthorized copy of another person's work that is protected by copyright or trade secret law; (vi) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (vii) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; or (viii) otherwise violates the terms of this Agreement or creates liability for us. You represent and warrant that: (a) you own the Content posted by you on the Service or otherwise have the right to grant the license set forth in this Agreement, and (b) your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person.
    • 4.2 Breach. Any use of the Services in violation of this Agreement may result in, among other options, termination or suspension of your rights to use the Services. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information and Content we consider necessary or appropriate, including, without limitation, Surfmark Profile information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted Content.
    • 4.3 Enforcement by Us. We have the right (but not the obligation) to investigate or review any Content and delete (or modify) any Content that in our sole judgment violates this Agreement or which is Prohibited Content, or may otherwise violate the rights, harm, or threaten the safety of any User or any other person, or create liability for us or any User.
    • 4.4 Photographs. You may not post a photograph of another person without that person's permission.
    • 4.5 Antivirus Software. You are responsible for installing, maintaining and using effective anti-virus and spyware prevention technologies, and Surfmark is not responsible for third-party websites that contain or deliver viruses, spyware, malware, or other harmful content or code.
  • THIRD PARTIES AND OTHER USERS
    • 5.1 Third Party Content. Content from other Users, advertisers, and other third parties is made available to you through the Services. Because we do not control such Content, you agree that we are not responsible for any such Content, including advertising and information about third party products or services. Because we do not have control over such Content, we make no guarantees about the accuracy, currency, suitability, or quality of the information in such Content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and third parties. Some of the content served by Surfmark will be from affiliated merchant sites. Sales that occur through these affiliated sites may generate a commission payable to Surfmark.
    • 5. 2 Responsibility. Your interactions with other Users on the Services or with advertisers, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User or the advertiser. You agree that we will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User's use or disclosure of your personally identifiable information. If there is a dispute between you and any third party (including any User), we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users.
    • 5.3 Third-Party Websites and Partner Communities. The Services may contain links to third-party websites ("Third-Party Websites") (a) placed by us as a service to those interested in this information; or (b) posted by other Users. We may also place links or enable interoperability to other social networking communities ("Partner Communities") or use other means to connect the Surfmark Services to such Partner Communities to give you more possibilities. You use all such links to Third-Party Websites and Partner Communities at your own risk. To the extent such links are provided by us, they are provided only as a convenience, and such link to a Third-Party Website or Partner Community does not imply our endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Website or Partner Community. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third-Party Websites or Partner Communities, or websites linking to the Website. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Website and Partner Communities, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  • COPYRIGHT POLICY

    It is our policy to terminate membership privileges of any Surfmark Member who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner's legal agent. Our detailed copyright policy can be viewed by following this link: www.surfmark.com/Policies/Copyright.

  • DISCLAIMER OF WARRANTIES

    Surfmark disclaims any responsibility for any harm resulting from your use of Software or Services. The Software and Services are provided "as is," with no warranties whatsoever. Surfmark and the Surfmark licensors expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including without limitation the warranties of merchantability, fitness for a particular purpose, title, and noninfringement of proprietary rights. Surfmark and the Surfmark licensors disclaim any warranties regarding the security, reliability, timeliness and performance of the Services. You understand and agree that you use the Services at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the use of the Services.

    Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.

  • LIMITATION OF LIABILITY
    • 8.1 Disclaimer. Under no circumstances shall Surfmark be liable to any user on account of that user's use or misuse of the Services. Such limitation of liability shall apply to prevent recovery of indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if Surfmark has been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from use or misuse of and reliance on the Services, from inability to use Software and Services, or from the interruption, suspension, or termination of Software and Services (including such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law.
    • 8.2 Limitation. Notwithstanding anything to the contrary contained herein, our liability to you for any damages arising from or related to (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of fifty us dollars ($50) and the amounts you paid to us in the twelve (12) months prior to the accrual of the claim. Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.
    • 8.3 Release. You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) any interactions with other Users, or (ii) your participation in any of our offline events. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: "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."
  • COMMENTS
    If you have comments on Surfmark Software and Website or ideas on how to improve it, please contact us at feedback@surfmark.net. Please note that by doing so, you also grant Surfmark permission to use and incorporate your ideas or comments into Surfmark Software and Website without further compensation.
  • RESOLUTION OF DISPUTES
    If a dispute arises between you and Surfmark, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Surfmark agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the paragraphs below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution via support@surfmark.net. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

    Law and Forum for Disputes - This Agreement shall be governed in all respects by the laws of the State of California without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You agree that any claim or dispute you may have against Surfmark must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.

    Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    Improperly Filed Claims - All claims must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Surfmark may recover attorneys' fees and costs up to $1000, provided that Surfmark has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

  • DISCLOSURES

    Surfmark, Inc. is located at 3 Lagoon Drive, # 180, Redwood City, CA 94065. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Current providers of such protections can be found at http://www.google.com/search?en&q=parental+control+applications.

  • MISCELLANEOUS PROVISIONS

    If for any reason a court of competent jurisdiction finds any provision or portion of these Agreement to be unenforceable, the remainder of the Agreement will continue in full force and effect. Sections 2-5, 7, 8, 10, and 11 of this Agreement will survive any termination of this agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Agreement will be effective only if in writing and signed by Surfmark.



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