TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS CREATES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. THESE TERMS AND CONDITIONS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS AND INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS. THESE TERMS AND CONDITIONS LIMIT YOUR RIGHTS TO SELECT THE JURISDICTION IN WHICH A DISPUTE IS TO BE ADDRESSED, REQUIRE THAT ANY SUCH DISPUTE BE ADDRESSED THROUGH AN ARBITRATION PROCEEDING – AND NOT A COURT PROCEEDING.
Certain terms that are used in this Terms And Conditions are defined below.
“Account” means the account which you have established with us for the purpose of processing the Transactions.
“App” means the application which you download onto your mobile device, known as “Global Tipster” and which enables you to give money in the form of a “tip” to a third party.
“Recipient” means a person who has provided a service to you or with whom you have had an interaction in such manner that you desire to Tip such person.
“Taxes” means any tax, including without limitation whether sales taxes, income taxes, value added taxes.
“Tip” means any amount of money which is transferred from your Account to a Recipient for any reason.
“Transactions”means separately and collectively each transactionwhereby you use the App to give a Tip.
“Us” means Surge GT, LLC, a Nevada Limited Liability Company.
“We” means Surge GT, LLC, a Nevada Limited Liability Company.
‘Website” means the Website globaltipster.com and any other related website maintained or controlled by us even if such website is not specifically named in these Terms And Conditions.
“You” means the person who is establishing or has established an Account with us.
2. TERMS OF SERVICE.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE WEBSITE ANDTHE APP, YOU ARE CONFIRMING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS WHETHER OR NOT YOU HAVE CREATED AN ACCOUNT WITH US. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THIS WEBSITE OR THE APP.
IF YOU ACCEPT OR AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF ACOMPANY OR OTHER LEGAL ENTITY,YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND CONDITIONS. IF THE FOREGOING SENTENCE IS APPLICABLE, THEN “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.
3. USE OF THIS WEBSITE.
A. Personal Use. The Website and the App are provided to you for personal use only and may not be used for any illegal activity or purposes, including payment fraud or identity theft.
B. Prohibited Uses. You may not use the Website or the App for any of the following:
(1) To take any action that causes, or may cause, damage to the Website or impairment of the performance, availability or accessibility of the Website.
(2) In any manner that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
(3) Copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, or other malicious computer software.
(4) Conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting).
(5) Collect data for any direct or indirect marketing activity.
4. HOW TIPS ARE MADE AND HOW WE RECEIVE MONIES.
A. PayPal Account. You must have a PayPal account and ID to use the App in order to make a Tip to a Recipient. The Recipient must have a PayPal account or establish a PayPal account to retrieve the Tip. We do not charge a fee for facilitating the Transaction through PayPal.
B. Downloading the App. The App must be downloaded through the Apple Store.
C. Free Tips. The first 10 Tips are free of charge. After you havemade 10 Tips, you will not be able to make any additional Tips unless you have an account with the Apple Store. Using your account with at the Apple Store, you will purchase the ability to make 12 Tips at the cost of $0.99. This means that you are paying 8-1/4 (8.25) cents per Tip. The $0.99 charge applies regardless of the monetary amount of the 12 Tips.
D. Payments To Us. In accordance with our agreement with the Apple Store, a portion of said $0.99 which you have paid in order to use the App and make 12 Tips, will be paid to us by the Apple Store.
E. Purchase Of Additional Tips. Once you have made 12 Tips, you will be asked whether you want to purchase another 12 Tips for the same $0.99.
5. USE OF YOUR ACCOUNT.
A. No Use By Another Person. You shall not allowany other person to use your Account.
B. Keeping Your Account Accurate. You are solely responsible for keeping your Account accurate and up to date. We are not responsible for your failure to keep your Account accurate and up to date.
C. Notifying Us Of Unauthorized Use. You shall notify us in writing immediately if you become aware of any unauthorized use of your Account.
D. No Use Of Another Person’s Account. You shall not use any other person’s account to access the Website or the App.
The Website and the App are intended solely for persons who are 18 years of age or older. If you are not at least 18 years old, then you cannot establish an Account. By establishing an Account you are representing and warranting to us that you are 18 years of age or older.
7. RELATIONSHIP WITH THE RECIPIENT.
Nothing contained herein shall mean or be construed to mean that we are guaranteeing that your Tip to the Recipient will be appreciated by the Recipient or that the Recipient will not viewor interpret the monetary relationship between you and the Recipient in a manner which is different from the way in which you view such relationship.
We do not endorse or support any Recipient. We do not receive any monetary compensation or other benefit from any Recipient – even though the Recipient can receive your Tip through the App.
8. RELATIONSHIP WITH THE APPLE STORE.
The terms and conditions of your relationship with the Apple Store are not included in these Terms And Conditions and you are solely responsible for establishing and maintaining your relationship with the Apple Store. We are not responsible for your failure to keep your account with the Apple Store up to date. Please go to the website for Apple for all concerns and questions regarding your relationship with Apple.
Nothing contained herein shall mean or be construed to mean that we are guaranteeing that your relationship with the Apple Store will be satisfactory or that the Apple Store will not view or interpret the relationship between you and the Apple Store in a manner which is different from the way in which you view such relationship. You acknowledge that we have no obligation to provide technical assistance or advice with respect to your account with the Apple Store. You acknowledge that the Apple Store has no obligation to provide technical assistance or advice with respect to the Website and the
9. RELATIONSHIP WITH PAYPAL.
The terms and conditions of your relationship with PayPal are not included in these Terms And Conditions and you are solely responsible for establishing and maintaining your relationship with PayPal. We are not responsible for your failure to keep your account with PayPal up to date. Please go to the website for PayPal for all concerns and questions regarding your relationship with PayPal.
Nothing contained herein shall mean or be construed to mean that we are guaranteeing that your relationship with PayPal will be satisfactory or that PayPal will not view or interpret the relationship between you and the PayPal in a manner which is different fromthe way in which you view such relationship. You acknowledge that we have no obligation to provide technical assistance or advice with respect to your account with PayPal. You acknowledge that PayPal has no obligation to provide technical assistance or advice with respect to the Website and the App.
We reserve the right in our sole discretion to modify the Website and the App. Such changes can be made at any time and without the necessity of giving notice to you. The modification of these Terms And Conditions will be posted on the Website and shown in an update to the App.
As you continue to use theWebsite and the App, as the case my be, after we have posted the modification, you will be agreeing – without action on your part – to by bound by the modified Terms And Conditions. You remain free at any time to cease using the Website and the App.
11. SUSPENSION OR TERMINATION.
We may terminate or suspend your use of the App at any time for no reason in our sole discretion.
A. Introduction. An “indemnity” involves three parties. As an illustration (but not by way of limitation), a Recipient could make a claim (in any type of legal proceeding) which asserts (regardless of the merits of such claim) that the Recipient was damaged by you in connection with the Tip or your failure to properly conclude the Transaction. Such Recipient could include us as a party (typically, referred to as a “defendant”) in such proceeding.
Set forth beloware the terms and conditions bywhich you indemnify us in the event that a third party – whether a Recipient or otherwise – names us or proceeds against us.
“Claim” means a claim, or cause of action, or suit for damages, losses, obligations and/or liabilities (including without limitation, damage to persons, property, or
the environment) made against us by a person or entity other than you which:
(i) claims, threatens or asserts that the Surge GT, LLC Group is responsible or liable for damages, losses, obligations and/or liabilities suffered or supposedly suffered by such third party, regardless of the legitimacy of such claim, threat or assertion, and
(ii) either (a) mentions you as being involved or responsible for the supposed harm suffered by the person or entity making the Claim or (b) is believed by us in good faith to be derived in any degree (1) from the actions or omissions of you and/or (2) from the inaccurate representations or misrepresentations which you have made to such other person or entity.
“Legal Proceeding” means any lawsuit, action, legal proceeding or administrative proceeding pertaining to or involving the Claim.
“Negotiations” means all negotiations and the exchange of one or more documents (including e-mails) pertaining to the Claim, including written responses and
counter responses, during the course of the Legal Proceeding even if such activities do not lead to a settlement or dismissal of the Claim.
“Surge GT, LLC Group” means Surge GT, LLC, a Nevada Limited Liability Company, its subsidiary and affiliated companies, its officers, directors, employees and
members, and its successors and assigns, and each of them.
C. Indemnification Of Us By You.
If a Claim is made against the Surge GT, LLC Group, then you shall:
Defend the Claim at your sole expense.
Indemnify and hold harmless the Surge GT, LLC Group from and against the Claim (except to the extent that such Claim pertains to or is derived from the actions or omissions of Surge GT, LLC).
Pay Surge GT, LLC on a current basis, all reasonable costs and expenses (including, without limitation, reasonable attorneys’, accountants’ and other professional fees and expenses) incurred by the Surge GT, LLC Group in connection with the Claim, including without limitation such reasonable costs and expenses attendant to
D. Certain Matters Relating to Your Indemnification.
Surge GT, LLC shall give written notice to you of the Claim. Such notice shall include a copy of the Claim and shall constitute the assertion by the Surge GT, LLC that both the defense of the Claim by you and the indemnity of the Surge GT, LLC Group are being sought.
The defense of the Proceeding shall be conducted by legal counsel selected by the reasonable agreement of you and us.
We shall be kept fully informed by the you at all stages of the Proceeding.
You shall not make any settlement in or with respect to the Proceeding without our prior written consent of the Surge GT, LLC.
Nothing contained herein shall mean or be construed to mean that we shall not have the right to participate in the Proceeding represented by legal counsel unilaterally selected by us.
If you do not assume the defense of the Claim, then we may defend against the Claim, after giving notice of the same to you, on such terms as we may deem
appropriate. In such case, (i) you shall be entitled to participate in (but not control) the defense of the Claim and (ii) you shall pay the Surge GT, LLC Group all reasonable costs and expenses (including, without limitation, reasonable attorneys’, accountants’ and other professional fees and expenses) incurred by the Surge GT, LLC Group in connection with the Claim.
If you thereafter seek to question the manner in which the Surge GT, LLC Group defended the Claim or the amount or nature of any such settlement pertaining to
the Claim, then you shall have the burden to prove by a preponderance of the evidence that the Surge GT, LLC Group did not defend or settle the Claim in a reasonably prudent manner.
The duty to defend as set forth herein applies even if the final result of the Proceeding is a determination that you were not responsible or liable for the harm or
damages suffered by the person or entity who or which made the Claim.
E. Introduction. The remedies provided for in this Section of the Terms And Conditions shall be cumulative and shall not preclude assertion by the Surge
GT, LLC Group of any other rights or the seeking of any other remedies against you.
F. Survival. The provisions of this Indemnity Section of the Terms And Conditions shall survive the termination of your relationship with us regardless of when or how such relationship is terminated. Without limiting the generality of the foregoing, your ceasing to use the Website and/or the App does not mean that your obligation to indemnify the Surge GT, LLC Group is terminated.
14. INTELLECTUAL PROPERTY.
A. Introduction. The Website and the App, including without limitation the components thereof, constitute our “intellectual property”. This means, without limitation that we have valuable and exclusive proprietary/ownership rights with respect to the Website and the App which are protected by applicable trademark, copyright and patent laws of both the United States and any relevant foreign country.
B. Your Use Of The Website And The App. Your use of the Website and the App does not entitle you to any right, title or interest in our intellectual property. You shall not under any circumstances alter, remove or obscure any trademark, tradename, logo, or copyright notice which appears on the App or is used in connection with the App.
Nothing contained herein shall mean or be construed to mean that we have investigated or have any obligation to investigate any Recipient or to assure or attempt to assure that whatever interaction you may have with any Recipient will be an agreeable experience or will prevent the Recipient frommaking claimagainst you. In this regard, see the Section of these Terms And Conditions entitled “Indemnity”.
16. NO WARRANTY.
YOUR USE OF THE WEBSITE AND THE APP EXPRESSLY EXCLUDES ANY WARRANTIES, GUARANTEES OR LIABILITIES, EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE. THE FOREGOING EXCLUSION INCLUDES ANY WARRANTY WITH RESPECT TO FITNESS OF THE WEBSITE OR OF THE APP FOR A PARTICULAR PURPOSE. THE FOREGOING EXCLUSION ALSO EXCLUDES ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY ARISING OUT OF THE COURSE OF DEALING OR USAGE IN CONNECTION WITH YOUR USE OF THE WEBSITE AND THE APP.
All potential issues regarding Taxes, including without limitation, whether you can deduct the Tip for income tax purposes and whether the Recipient must report the Tip are a matter exclusively for you and the Recipient to address. We are not involved in any manner whatsoever regarding the reporting of the Tips under U.S., state or local law.
18. GOVERNING LAW.
These Terms And Conditions are governed by and construed in accordance with California law applicable to contracts made and to be performed wholly within California, and without regard to the conflicts of laws principles thereof.
19. ARBITRATION OF DISPUTES.
A. General. Any controversy or claim arising out of, or relating to, these Terms And Conditions, the breach thereof, or the validity of this arbitration provision, shall be settled by binding arbitration in Los Angeles County in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the judgment upon any award rendered by the arbitrator(s)may be entered in any court having jurisdiction thereof. Nothing contained herein shall prevent any party from (i) seeking and obtaining equitable relief, including but not limited to, prohibitory or mandatory injunctions, specific performance, or extraordinary writs, nor (ii) filing legal action to compel arbitration under the provisions hereof, provided that such party stipulates in such action, at any other party’s request, to arbitration on the merits of said case.
The immediately preceding paragraph means that your use of this Website and the App constitutes your agreement that if any dispute arises between you and us (which cannot otherwise be resolved through communication between us) any such dispute, including all aspects relating to such dispute, whether relating to money and/or the alleged breach, termination, enforcement, interpretation or validity of these Terms And Conditions or the use of the Website and/or the use of the App (each and all of such matters being referred to herein as a “Dispute”) will be settled by binding arbitration, as described herein.
B. Waiver Of Jury Trial and Of Class Action. THE FOREGOING PARAGRAPHS MEAN THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY REGARDING THE DISPUTE OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT WHICH NIGHT BE RELEVANT TO THE DISPUTE, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
C. Arbitration Procedure. If you believe that a Dispute has arisen and you desire to initiate arbitration you must provide us with a written Demand for Arbitration as specified in the AAA Rules. The same rule applies if we desire to initiate an arbitration with you.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) business days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
You are specifically advised that the arbitrator will have wide the discretion in conducting the arbitration.
D. Award In Arbitration. The arbitrator will render an award pursuant to the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
If you prevail in the arbitration you may be entitled to an award of attorneys’ fees and expenses, to the extent provided under California. If we prevail in the arbitration, we may be entitled to an award of attorneys’ fees and expenses.
E. Payment Of Arbitration Fees And Costs. Unless otherwise agreed to us in writing, you will be responsible for the payment of any filing, administrative and arbitrator fees payable to the AAA.
The Arbitration described above shall be brought exclusively in Los Angeles County, California. This means that you are waiving any claim or defense that such forum is not convenient or proper. In addition, you are agreeing that a final judgment in any such arbitration shall be conclusive and may be enforced in Los Angeles County and in such other jurisdictions in the manner specified by law.
A. General. If any provision of these Terms And Conditions, as applied either you or us or to any circumstance, shall be found to be void, invalid or unenforceable, this shall in no way affect any other provision of these Terms And Conditions, or the application of any such provision in any other circumstance, or the validity or enforceability of these Terms And Conditions. In addition, any provision which is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
B. Foreign Jurisdictions. Without limiting the generality of the Paragraph A. immediately above, if any of the provisions of these Terms And Conditions is inconsistent with the law of any jurisdiction outside of the United States, then these Terms And Conditions shall be read and applied as if such provision is not a part of these Terms And Conditions.
22. EFFECT OF WAIVER.
No waiver by you or by us of any term or condition of these Terms And Conditions shall be deemed or construed to be a waiver of such term or condition in the future, or of any preceding or subsequent breach of the same or any other term or condition of this or any other agreement. All remedies, rights, undertakings, obligations and agreements contained in these Terms And Conditions shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.
23. NO ASSIGNMENT.
These Terms And Conditions are not to be assigned by you to another person entity and any attempted assignment by you shall be null and void and have no effect. We may assign these Terms And Conditions to any affiliate of ours without your consent. Subject to the immediately preceding two sentences, these Terms And Conditions and all provisions hereof, shall inure to the benefit of and be binding upon each of us, and the respective successors in interest, assigns, administrators, executors, heirs and devisees of each of us.
24. NO THIRD PARTY BENEFICIARY WITH EXCEPTION.
Except as set forth herein, these Terms And Conditions do not and are not intended to confer any rights or remedies upon any person other than you and us. Notwithstanding the foregoing, the parties agree that to the extent that payments are made by through the payment method described herein, the Recipient will be a third party beneficiary of the Tip.
These Terms And Conditions are to be interpreted fairly and simply, and not strictly for or against either you or us, regardless of the fact that we have prepared these Terms And Conditions.
26. ENTIRE AGREEMENT.
These Terms And Conditions constitute the entire agreement between you and us pertaining to the subject matter hereof. No supplement, modification or amendment of these Terms And Conditions shall be binding except through the updating of these Terms And Conditions as provided for herein.
27. DESCRIPTIVE HEADINGS.
The descriptive headings which are used herein are for convenience only and shall not control or affect the meaning or construction of any provision of these Terms And Conditions.
28. CONTACTING US.
On the Website, there is a link that enables you to contact us. You will be required to provide us with various information in order for us to be able to address your questions or concerns. As noted above, if your questions or concerns involve the Apple Store and/or your PayPal account, we will not be able to address such questions or concerns.
© 2016 Surge GT, LLC. All rights reserved.