Surterra Terms of Service
Last updated: July 24, 2018
The website located at www.surterra.com (the “Site”) is a copyrighted work belonging to Surterra Holdings, Inc., a Delaware corporation, and its affiliates, subsidiaries, parent company, and other related companies (collectively, “Surterra,” “Us,” “Our,” and/or “We”). Surterra provides a website and/or software applications that host content related to cannabis varieties and related products which include reviews and ratings provided by its users, information on our cannabis dispensaries, medical providers, and other cannabis-related content (collectively, with all other services provided through the Site, the “Services”). Certain features of the Site or Services may be subject to additional guidelines, terms, or rules, which will be posted on the Site or Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement. References to “you” and “your” refer to you, a user of our Site and/or Services.
THESE TERMS OF SERVICE (“AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU DO NOT HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH COMPANY, ENTITY, OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THIS AGREEMENT.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
- IMPORTANT DISCLAIMERS.
- SURTERRA DOES NOT OFFER MEDICAL ADVICE. ANY INFORMATION ACCESSED THROUGH THE SITE AND SERVICES, OR WITHIN ANY OF SURTERRA’S SOCIAL MEDIA PAGES OR CHANNELS IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY, IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND IS NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, OR ADVERSE EFFECTS. SUCH INFORMATION INCLUDES, WITHOUT LIMITATION, THIRD-PARTY MATERIALS, USER CONTENT, AND SURTERRA-GENERATED CONTENT DERIVED FROM USER CONTENT (E.G., STRAIN HIGHLIGHTS, ATTRIBUTES, AND OTHER DATA). THE INFORMATION ON THE SITE AND SERVICES AND PROVIDED VIA SURTERRA’S SOCIAL MEDIA PAGES AND CHANNELS SHOULD NOT BE USED FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. ALWAYS CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE, SERVICES, OR ON SURTERRA’S SOCIAL MEDIA PAGES AND CHANNELS.
- ACKNOWLEDGEMENT OF FEDERAL LAW: You expressly acknowledge that Surterra is for residents of states with laws regulating medical use of cannabis only and that medical cannabis collectives and patients are established pursuant to their respective State laws. Marijuana is included on Schedule 1 under the United States Controlled Substances Act. Under the federal laws of the United States of America, manufacturing, distributing, dispensing or possession of marijuana is illegal, and individuals are subject to arrest and/or prosecution for doing so. You further acknowledge that medical use is not recognized as a valid defense under federal laws regarding marijuana. Client also acknowledges that the interstate transportation of marijuana is a federal offense. Client will not use the Site or any of the Services in any that that is illegal or prohibited by law.
THE FOREGOING DISCLAIMERS AND LIMITATIONS ON LIABILITY SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS AND LIMITATIONS ON LIABILITY IN SECTIONS 9 AND 10 OR ELSEWHERE IN THIS AGREEMENT.
- Eligibility and Accounts.
2.1 Eligibility. You must be 18 years of age and a qualified medical marijuana patient to use the Site and/or Services within the United States.
2.2 Account Creation. In order to use certain features of the Site (e.g., to use the Services), you must register for an account with Surterra (“Surterra Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information at all times. You may not create more than one Surterra Account. Surterra may suspend or terminate your Surterra Account in accordance with Sections 6.4 and 11.
2.3 Account Deletion. You may delete your Surterra Account at any time, for any reason, by sending an email to notice@Surterra.com, which includes your Surterra Account username and your request to delete your account.
2.4 Account Responsibilities. You are responsible for maintaining the confidentiality of your Surterra Account login information and are fully responsible for all activities that occur under your Surterra Account. You agree to immediately notify Surterra of any unauthorized use, or suspected unauthorized use, of your Surterra Account or any other breach of security. Surterra cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- SITE AND MOBILE APP
3.1 License. Subject to the terms of this Agreement, Surterra grants you a non-transferable, non-exclusive license to use the Site and Services for your personal, noncommercial use. Subject to the terms of this Agreement, Surterra grants you a non-transferable, non-exclusive license to install and use the software Surterra makes available for mobile devices (“Mobile App”), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use. As used in this Agreement, the term “Services” includes the Mobile App.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
3.3 Modification. Surterra reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Surterra will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
3.4 Ownership. Excluding User Content, you acknowledge that all the intellectual property rights in the Site and Services are owned by Surterra or Surterra’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Surterra and its suppliers reserve all rights not granted in this Agreement.
3.5 App Platforms. You acknowledge and agree that the availability of the Mobile App is dependent on the third-party app platform from which you received the Mobile App, e.g., the Apple App Store® or the Google Play® Store (“App Platform”). You acknowledge that this Agreement is between you and Surterra and not with the App Platform. Surterra, not the App Platform, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Platform in connection with the Mobile App. Each App Platform may have its own terms and conditions to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable agreements, terms, and conditions of use/service, and other policies of the applicable App Platform. You acknowledge that the App Platform (and its subsidiaries) is a third-party beneficiary of this Agreement and will have the right to enforce this Agreement. See Accessing and Downloading the Application from Apple® in Section 14.5 below for additional terms and conditions if you access or download the Mobile App from the Apple App Store.
4.1 Text Messaging. By using the Services or Software, you agree that Surterra and those acting on its behalf may send you text (SMS) messages at the phone number you provided us. These messages may include operational messages about your use of the Services, as well as marketing or other promotional messages. Messages from Surterra, its affiliated companies and necessary third-party service providers, may include but are not limited to: operational communications concerning your User account or use of the Services, updates concerning new and existing features on Surterra, communications concerning promotions run by us or our third-party partners, and news concerning Surterra and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. Your agreement to receive promotional texts is not a condition of any purchase or service offered by Surterra. If you change or deactivate the phone number you provided to Surterra, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems.
4.2 Opt-Out. You may opt out of receiving promotional text messages from Surterra at any time by replying STOP to a promotional text message from Surterra. You may opt-out of receiving all text messages from Surterra at any time by deleting your account or by replying STOP to any text message from Surterra. NOTE: if you opt-out of receiving all text messages from Surterra, you will not be able to use certain Services without agreeing to receive operational text messages. You may continue to receive text messages for a short period while the Surterra processes your request, and you may also receive text messages confirming the receipt of your opt-out request.
4.3 Opting Back In. You may opt back into receiving text messages from Surterra at any time by replying START to a text message from Surterra.
4.4 Push Notifications. When you install our Mobile App on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the Mobile App is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
4.5 Email. You agree that we may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
- USER CONTENT
5.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services, including without limitation, content in the user’s profile, user reviews and/or postings. You acknowledge and agree that Surterra is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Surterra does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content.
5.2 User Content Restrictions. You agree not to use the Site, Services, or any of Surterra’s social media pages or channels to collect, upload, transmit, display, or distribute any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third-party.
5.3 User Content Responsibilities. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third-party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by Surterra. You acknowledge and agree that Surterra is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Surterra does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content. Because you alone are responsible for your User Content (and not Surterra), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy or other applicable laws. Surterra is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content, if you desire.
5.4 License. You hereby grant, and you represent and warrant that you have the right to grant, to Surterra an irrevocable, nonexclusive, royalty-free and fully-paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.5 Feedback. If you provide Surterra any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Surterra all rights in the Feedback and agree that Surterra shall have the right to use such Feedback and related information in any manner it deems appropriate. Surterra will treat any Feedback you provide to Surterra as non-confidential and non-proprietary. You agree that you will not submit to Surterra any information or ideas that you consider to be confidential or proprietary.
- ACCEPTABLE USE POLICY. The following sets forth Surterra’s “Acceptable Use Policy”:
6.1 Reviews. You must have a valid account and email address to leave a review on Surterra. Prior to posting a review, you will need to verify your email address associated with your Surterra account. You agree not to post reviews on the Site, Services, or any of Surterra’s social media pages or channels that are not based upon your personal experience or are otherwise designed for any purpose other than providing other users on the Site with an accurate description of your personal experience. Reviews based on secondhand, non-personal experience are not allowed. In addition to the other restrictions contained in the Acceptable Use Policy, reviews posted on the Site, Services, or any of Surterra’s social media pages or channels must not: (a) be written exclusively in capital letters; (b) be plagiarized; (c) contain spam, advertisements, and/or links to external websites; (d) contain disparaging information about Surterra, its employees, or any other person, (e) contain overly detailed or sexual descriptions of an individual’s physical appearance, or lewd personal attacks against a specific individual or group of individuals affiliated with Surterra, (f) contain references to Surterra or its competitors other than the product being reviewed, or (g) contain unrelated personal grievances. If you are an owner, volunteer, or employee of a competitor dispensary you may not post reviews about your dispensary or products or about your competitors’ dispensary or products.
6.2 Photos. Image files must exclusively feature the products they illustrate and must not include body parts, messy or cluttered backgrounds, product wrapping, currency, paraphernalia, brand names, or other any objects other than the product itself. Image files must be clear and must not be blurry, fuzzy, or contain any flash reflections. Products should be centered in the image file. Image files must contain an accurate depiction of the product they illustrate. Image files cannot contain pornography or other graphic images and must otherwise abide by the guidelines set forth in this Section 6.
6.3 Technological Restrictions. In addition, you agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to or impersonate another user or Surterra or gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services.
6.4 Monitoring, Suspension, and Termination. We reserve the right (but have no obligation) to review any User Content (including any image files or reviews), investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Surterra Account in accordance with Section 11, and/or reporting you to law enforcement authorities) if we in our sole discretion suspect that you have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
- INDEMNITY. You agree to indemnify and hold Surterra (and its officers, employees, and agents) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonably attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (i) your use or misuse of the Site or Services, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. Surterra reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Surterra. Surterra will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- OTHER USERS
Each user of the Site or Services is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Surterra will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SURTERRA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SURTERRA’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID SURTERRA IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Surterra Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Surterra Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Surterra Account involves deletion of your User Content associated therewith from our Site, Services, and live databases. Surterra will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Surterra Account or deletion of your User Content. Sections 7, 8, 9 and 10 of this Agreement will survive termination.
- COPYRIGHT POLICY. Surterra respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
12.1 Your physical or electronic signature;
12.2 Identification of the copyrighted work(s) that you claim to have been infringed;
12.3 Identification of the material on our services that you claim is infringing and that you request us to remove;
12.4 Sufficient information to permit us to locate such material;
12.5 Your address, telephone number, and e-mail address;
12.6 A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
12.7 A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The Designated Copyright Agent for Surterra is:
Surterra Holdings, Inc.
404.920.4890 Ext. 5230
- ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Except for disputes brought in small claims court, all disputes between you and Surterra arising out of, relating to or in connection with the Site or Services shall be exclusively settled through binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) for commercial arbitration. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. YOU AND SURTERRA AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in this Agreement to the contrary, we agree that if Surterra makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that you had already provided notice of to Surterra. Information on AAA and how to start arbitration can be found at www.adr.org or by calling 800-778-7879. If the arbitration in this Section provision is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in Hillsborough County, Florida. You hereby accept the exclusive jurisdiction of such court for this purpose. This Agreement is governed by the laws of the State of Florida without regard to conflict of law provisions.
13.1 Pre-Arbitration Dispute Resolution. We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at notice@Surterra.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to us should be sent to the address identified in Section 14.6 below.
13.2 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
13.3 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, we agree that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided in Section below. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
14.1 No Support or Maintenance. You acknowledge and agree that Surterra will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
14.3 Trademark Information. You acknowledge and agree that You are not permitted to use Surterra’s trademarks or any third-party marks displayed on our site without prior written consent from Surterra or the owners of such third-party marks.
14.4 Accessing and Downloading the Application from Apple. The following additional terms apply to any Mobile App accessed through or downloaded from the iTunes® or the App Store® (“App Store Sourced Mobile App”):
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Surterra only, and not Apple, and (ii) that Surterra, not Apple, is solely responsible for the App Store Sourced Mobile App and content thereof. The license granted to you in the Agreement to use the App Store Sourced Mobile App and Service is a non-transferable right to use the App Store Sourced Mobile App on any Apple Device that you own or control, and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Mobile App.
(c) In the event of any failure of the App Store Sourced Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Mobile App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Mobile App. As between Surterra and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Surterra.
(d) You and Surterra acknowledge that, as between Surterra and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Mobile App or your possession and use of the App Store Sourced Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Surterra acknowledge that, in the event of any third-party claim that the App Store Sourced Mobile App or your possession and use of that App Store Sourced Mobile App infringes that third-party’s intellectual property rights, as between Surterra and Apple, Surterra, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) You and Surterra acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Mobile App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Mobile App against you as a third-party beneficiary thereof.
(g) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Mobile App.
14.5 Miscellaneous. This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision, nor shall any single or partial exercise by Surterra of any right or power hereunder preclude further exercise of that or any other right hereunder. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between you and Surterra. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Surterra’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
14.6 Surterra Contact Information:
Surterra Holdings, Inc.
1175 Peachtree Street NE
100 Colony Square 10th Floor
Atlanta, GA 30361