Surgo Group LLC, Customer Terms of Service
PLEASE READ THE CUSTOMER TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE SURGO GROUP SERVICE.
This Agreement is a legally binding contract between you (“Customer”) and Surgo Group, LLC. Surgo Group provides the Service (as defined below) to you subject to and conditioned upon your acceptance of this Agreement.
BY ACCESSING AND USING THE SERVICE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE.
Surgo Group may update and change any part or all of this Agreement. If we update or change this Agreement, we will post the updated version at http://www.surgogroup.com/terms-of-service/. The updated Agreement will become effective on the next business day after being posted. When we change this Agreement, we will modify the “Last Modified” date above. We encourage you to review this Agreement periodically.
“Agreement” means these Customer Terms of Service and all materials referred or linked to in these Terms of Service.
“Billing Period” means the period of time for which Customer has agreed to prepay fees for the Service, from time to time and will be the same as or shorter than the Contract Term. For example, if Customer subscribes to the Service for one year, with monthly credit card payments, the Billing Period will be one month.
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Service that enable Customer to communicate with the public at large or with a group.
“Contact” means the contact information, typically unique email address, of a Customer’s customer, prospect, lead, or other individual (other than a User) used with the Service.
“Contact Information” means the name, company affiliation, job title, email address, online user name telephone number, and similar publicly available information voluntarily submitted by visitors to Customer’s landing pages on the Service, as well as navigational data relating to each visitor’s activity on Customer’s webpages on the Service. Contact Information does not include Sensitive Information.
“Contract Term” means the Initial Contract Term and any Renewal Contract Term(s), as defined in Section 6, below.
“Customer Data” means all Contact Information and other permitted information submitted by Customer to, or collected by Customer via, the Service. Customer Data does not include Sensitive Information.
“Customer Materials” means all materials that Customer provides or posts, uploads, inputs or submits for public display through the Service. Suggestions, feedback and comments relating to the Service provided by Customer personnel to Surgo Group are not Customer Materials.
“Customer” means the person or entity using the Service and identified in the applicable billing statement or order form as the Surgo Group customer.
“Email Send Limit” means the number of emails that Customer may send in a calendar month, equal to ten (10) times the Maximum Contacts number.
“Surgo Group” means Surgo Group, Inc. and any entity which directly or indirectly controls, is controlled by, or is under common control with Surgo Group, Inc.
“Surgo Group Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Service by Surgo Group.
“Maximum Contacts” means the maximum number of Contacts Customer may use with the Service as identified in Customer’s order form or its subscription.
“Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers or similar identifiers, or employment, financial or health information.
“Service” means the specific edition and elements of Surgo Group web-based inbound marketing applications, tools and platform selected by Customer, and developed, operated, and maintained by Surgo Group, accessible via http://www.surgogroup.com or another designated URL, and any ancillary online or offline products and services, including website hosting, provided to Customer by Surgo Group, to which Customer is being granted access under this Agreement. The Service includes the Surgo Group Content, and does not include training services, consulting services, and Third-Party Products.
“Third-Party Products” means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Service, and are identified as being provided by third parties, including but not limited to non-Surgo Group apps listed on app.surgogroup.com and non-Surgo Group services listed on www.surgogroup.com/services.
“Third-Party Sites” means third-party websites linked to from within the Service, including without limitation Communications Services.
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized by Customer to use the Service and who have been supplied user identifications and passwords by Customer (or by Surgo Group at Customer’s request)
2. Customer Support
Support for Customer’s use of the Service is included in Customer’s subscription fee.
Phone support for the Service is available 8AM to 8PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. Surgo Group accepts webform support questions 24 Hours per Day x 7 Days per Week at www.surgogroup.com/connect. Webform responses are provided during phone support hours only. Surgo Group attempts to respond to webform support questions within one business day; in practice, Surgo Group’s responses are generally even faster. Surgo Group does not promise or guarantee any specific response time.
Surgo Group shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
3. Consulting Services
Surgo Group offers consulting packages to provide training and Internet marketing expertise to help Surgo Group customers succeed. Fees for these services are in addition to Customer’s fees for the Service and are payable at the start of the engagement. Unless otherwise agreed, all Surgo Group consulting is performed remotely. Hours purchased as part of a consulting package are nonrefundable and expire as set forth in the Order Form but in any case no later than 180 days from purchase.
4. Fees and Payments
The Service Fee will be as agreed to by Customer in the Order Form and will not change during a Billing Period, except as provided in this Section.
a. Price Increases. General price increases established by Surgo Group will not affect Customer during a Billing Period. Surgo Group will charge or invoice Customer under the new price structure, starting with the next Billing Period in the Contract Term.
b. Contact and Email Send Limit Tier Adjustments. If Customer exceeds its Maximum Contacts and/or Email Send Limit in a Billing Period, then Customer’s Service Fee will be adjusted at the beginning of the next Billing Period up to the tier price for the maximum number of Contacts or maximum monthly email sends from any prior period, and Surgo Group will charge or invoice Customer for that adjusted amount. This process will continue for each Billing Period during the Contract Term. Surgo Group determination of the number of contacts in Customer’s marketing community and the number of emails Customer sends shall be conclusive. Service Fees will not decrease, even if there is a subsequent reduction in the number of contacts or emails.
c. Payment by credit card. Customer will provide Surgo Group with valid and updated credit card information or bank account information. Customer authorizes Surgo Group to charge Customer’s credit card or bank account for all fees payable at the beginning of the Initial Contract Term and all subsequent Billing Periods
e. Payment against invoice. Surgo Group will invoice Customer at the beginning of the Initial Contract Term and at the beginning of each subsequent Billing Period. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Payment instructions shall be as set out on Surgo Group invoice. Fees paid in advance are not refundable, except as specifically provided for in this Agreement.
f. Payment Information. Customer shall ensure that all details provided regarding the Customer’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information when changes to such information occurs. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are payable in advance throughout the Contract Term.
All quoted prices and fees are exclusive of sales, value added and similar taxes, which Surgo Group will charge or invoice as applicable, and Customer agrees to pay any such taxes applicable to its use of the Service.
5. Contract Term and Renewal
The “Initial Contract Term” shall begin on the effective date of Customer’s subscription and expire at the end of the period selected during the subscription process, unless earlier terminated in accordance with this Agreement.
Unless either party gives the other notice that it does not intend to renew this Agreement at least 45 days in advance of the end of the Contract Term, this Agreement will be automatically renewed for a “Renewal Contract Term”, which shall be: (i) on the terms and conditions of this Agreement then in effect, (ii) subject to the pricing structure and applicable levels provided for renewal terms in this Agreement or, if not so specified, as then provided by Surgo Group, and (iii) for a term equal to the shorter of the Initial Contract Term or one year.
Each Contract Term, unless renewed, shall end on the earlier of the applicable expiration date or its earlier termination as provided in this Agreement. Except as provided herein, a Contract Term cannot be canceled before its expiration. Fees for each Contract Term are non-cancelable, and therefore no refunds of fees paid in advance will be made, except as specifically provided for in this Agreement.
6. Surgo Group’s Proprietary Rights
This is an Agreement for access to the Service, and Customer is not granted a license to any software by this Agreement. The Service is based upon proprietary Surgo Group technology and includes the Surgo Group Content. The Service is protected by applicable intellectual property and other laws, including patent, trademark, and copyright laws. The Service, including all intellectual property rights in the Service, belongs to and is the property of Surgo Group or its licensors (if any). Surgo Group owns and retains all copyrights in the Surgo Group Content. The Surgo Group Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Surgo Group Content or the Service, in whole or in part, by any means, except as expressly authorized in writing by Surgo Group. Surgo Group, the Surgo Group logos, and other marks used by Surgo Group from time to time are trademarks and the property of Surgo Group. The appearance, layout, color scheme, and design of the SurgoGroup.com site are protected trade dress. Customer does not receive any right or license to use the foregoing.
Surgo Group may use and incorporate into the Service any suggestions or other feedback relating to the Service provided by Customer personnel, without payment or condition.
7. Customer’s Proprietary Rights
As between the parties, Customer shall own and retain all rights to the Customer Materials, Customer Data and any works specifically created by Surgo Group for Customer under separate agreement of the parties, and this Agreement does not grant Surgo Group any rights to such materials. Customer grants permission to Surgo Group and its licensors to use the Customer Materials and Customer Data only as necessary to provide the Service to Customer, and not for any other purpose.
Customer grants Surgo Group the right to add Customer’s name and company logo to its customer list and web site. Except for the foregoing, neither party may use the other party’s name or logo without the other party’s prior written consent.
9. Customer Data
Surgo Group may monitor use of the Service by all of its customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service. Customer agrees that Surgo Group may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.
Surgo Group will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Customer consents to the processing of Customer Data in the United States.
CUSTOMER AGREES NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. SURGO GROUP DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM CUSTOMER’S USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
10. Use and Limitations of Use
Customer’s access to the Service is conditioned upon its representations and warranties that it will not:
- Use, or allow its Users to use, the Service in violation of the terms of this Agreement;
- Copy, modify, create a derivative work from, reverse engineer or reverse assemble the Service, or otherwise attempt to discover any source code, or allow any third party to do so;
- Sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the Surgo Group Content or Service in any way;
- Use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to the Surgo Group servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- Use the Service in any manner that damages, disables, overburdens, or impairs any Surgo Group website or interferes with any other party’s use and enjoyment of the Service;
- Attempt to gain unauthorized access to the Service;
- Access the Service by any means other than through the interface that is provided by Surgo Group for use in accessing the Service;
- Use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
Any unauthorized use of any Surgo Group Content or the Service may violate patent, copyright, trademark, and other laws. Customer agrees to cooperate with Surgo Group to prevent any unauthorized copying of the Service or Surgo Group Content.
Customer shall promptly notify Surgo Group of any unauthorized use of its Users’ identifications and passwords or its account by emailing support at firstname.lastname@example.org.
11. Acceptable Use of Communications Services
12. Third-Party Sites and Products
Third-Party Sites and Products are not under Surgo Group’s control, and Surgo Group is not responsible for the contents of any Third-Party Site or Product, including without limitation any link contained in a Third-Party Site, or any changes or updates to a Third-Party Site or Product. Surgo Group is not responsible for any other form of transmission received from any Third-Party Site. The Third-Party Sites and Products are provided to Customer only as a convenience, and the inclusion of any Third-Party Site or Product does not imply endorsement by Surgo Group of the Third-Party Site or Product or any association of Surgo Group with it.
13. Flash Cookies
Some parts of the Service may offer, as an option, a cross-domain tracking feature that employs Adobe Local Shared Objects, also known as LSOs or Flash Cookies (“Flash Cookies”). If Customer elects to use this feature, Customer shall ensure that its practices with respect to the use of Flash Cookies are neither misleading nor deceptive in any respect. Surgo Group makes no representations or warranties, express or implied, with respect to the current or future permissibility of Flash Cookies under applicable laws or regulations. It shall be Customer’s responsibility to ensure that use of Flash Cookies in connection with its website complies at all times with all applicable laws, regulations and privacy policies, and Customer shall immediately notify Surgo Group if such use shall no longer be compliant. Either party shall have the right, on written notice to the other party at any time and for any reason, to cause the implementation of Flash Cookies hereunder to be discontinued.
Customer will indemnify, defend and hold Surgo Group harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Surgo Group (and its officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such Action is based upon or arises out of (a) Customer’s use of the Service; (b) Customer’s noncompliance with or breach of this Agreement, (c) Customer’s use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using Customer’s User information. Customer will indemnify Surgo Group for any and all costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) of any kind whatsoever, directly and to the extent arising out of any Action by a third party not affiliated with Surgo Group. Surgo Group shall use commercially reasonable efforts to: notify Customer in writing within thirty (30) days of Surgo Group’s becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Surgo Group of all liability); and provide Customer (at Customer’s expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer shall not accept any settlement that (i) imposes an obligation on Surgo Group; (ii) requires Surgo Group to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Surgo Group without Surgo Group’s prior written consent.
15. Disclaimers; Limitations of Liability
THE SURGO GROUP CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES.
SURGO GROUP AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE OR THE SURGO GROUP CONTENT FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICE AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. SURGO GROUP AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE AND THE SURGO GROUP CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SURGO GROUP IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SURGO GROUP AND ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICE, OR FOR ANY SURGO GROUP CONTENT, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF SURGO GROUP OR ANY OF SURGO GROUP SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, SURGO GROUP IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF SURGO GROUP AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
SURGO GROUP DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. SURGO GROUP’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND SURGO GROUP’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SERVICE SHALL BE SUBJECT TO THIS SECTION.
CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, SURGO GROUP WOULD NOT PROVIDE THE SERVICE TO CUSTOMER.