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Terms and Conditions

Last updated: January 18, 2024

Please read these terms and conditions carefully before using Our Service.

Interpretation and Definitions

The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Definitions

For the purposes of these Terms and Conditions:

  • Country refers to: New York, United States
  • Company (referred to as either “the Company”, “We”, “Us” or “Our” in this Agreement) refers to Blue Surge Marketing Agency LLC, 915 A Carmans Rd Suite 253 Massapequa, NY 11758.
  • Device means any device that can access the Service such as a computer, a cellphone or a digital tablet.
  • Service refers to the Website and App.
  • Terms and Conditions (also referred as “Terms”) mean these Terms and Conditions that form the entire agreement between You and the Company regarding the use of the Service.
  • Third-party Social Media Service means any services or content (including data, information, products or services) provided by a third-party that may be displayed, included or made available by the Service.
  • App refers to Surge Marketing Hub, accessible from https://app.thebluesurge.com
  • Website refers to Blue Surge Marketing Agency, accessible from https://thebluesurge.com as well as the aforementioned App and may be used interchangeably
  • You means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.

Account Registration and Use

To access the Service and Website, you must register for an account by creating a username and password. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your user name and password. We may assume that any communications we receive under your account have been made by you.

Unauthorized Account Use. You are responsible for notifying us at support[at]thebluesurge.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Blue Surge Marketing Agency will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Blue Surge Marketing Agency or a third party due to someone else using your account. In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, Blue Surge Marketing Agency reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.

User Content.

You may not post any User Content on the Service or Websites or otherwise make use of the Service or Websites in a manner that:

  • violates any applicable law (including export control laws and regulations), any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
  • is deceptive, fraudulent, illegal, obscene, defamatory, disparaging, libelous, threatening, or pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children);
  • constitutes hate speech, harassment, or stalking;
  • criticizes, berates, or attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition;
  • contains any personal information of minors under the age of 16;
  • contains any sensitive personal information as defined by applicable law (such as financial information, payment card numbers, social security numbers, or health information) without Blue Surge Marketing Agency’s prior written consent granted as part of a Customer Agreement;
    contains viruses, bots, worms, or similar harmful materials; or
  • contains any information that you do not have a right to make available under law or any contractual or fiduciary duty;
    could otherwise cause damage to Blue Surge Marketing Agency or any third party.

Fees for Phone, Email, and SMS. We offer a pay-as-you go model for your use of phone, SMS, and email on our App. For the most up-to-date pricing, visit this link: https://thebluesurge.freshdesk.com/support/solutions/articles/67000724289-what-is-the-cost-for-phone-calls-text-messages-and-emails-through-surge-marketing-hub-

Billing. You can add paid features to your account (upgrading your plan). We’ll automatically bill you from the date you convert to a higher plan and on each periodic renewal until cancellation. If you’re on an annual plan, we’ll send you a notice email reminding you that your plan is about to renew within a reasonable period of time prior to the renewal date. You’re responsible for all applicable taxes, and we’ll charge tax when required to do so. Some countries have mandatory local laws regarding your cancellation rights, and this paragraph doesn’t override these laws.

Setoff. In the event that there is an outstanding amount you owe us, we may set off such amount from any payments that would otherwise be made to you.

Power of Attorney. You appoint us and our designees your true and lawful attorney in fact, with full power to take any action in your name and place relating to any amounts you owe us under any agreement you have with us, including these Terms of Service, that we deem advisable and consistent with the terms of such agreement. You will timely execute and deliver to us any power of attorney instrument we may require evidencing our authority and power under this section.

Cancellation. You may cancel your paid plans at any time by contacting our Customer Support team. Refunds are only issued if required by law. If you have an issue with your account, or think there’s been an error in billing, please check your support options for more help. In most cases, payments for Blue Surge Marketing Agency subscriptions aren’t refundable. For example, users living in the European Union have the right to cancel their account subscriptions and obtain a refund within 14 days of signing up for, upgrading to, or renewing a paid plan by emailing us at support[at]thebluesurge.com. We do not provide refunds or credits for any partial subscription periods, except as expressly stated in these Terms.

Commercial Use. Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

Intellectual Property Rights

Service Content, Software and Trademarks. You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Blue Surge Marketing Agency, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Blue Surge Marketing Agency from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Blue Surge Marketing Agency, (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Blue Surge Marketing Agency.

The Blue Surge Marketing Agency name and logos are trademarks and service marks of Blue Surge Marketing Agency (collectively the “Blue Surge Marketing Agency Trademarks”). Other Blue Surge Marketing Agency, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be connected to Blue Surge Marketing Agency. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Blue Surge Marketing Agency Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Blue Surge Marketing Agency Trademarks will inure to our exclusive benefit.

Third Party Material. Under no circumstances will Blue Surge Marketing Agency be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Blue Surge Marketing Agency does not pre-screen content, but that Blue Surge Marketing Agency and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Blue Surge Marketing Agency and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Blue Surge Marketing Agency, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

User Content Transmitted Through the Service. With respect to the content or other materials you upload through the Service, whether as a User, Vendor or Business (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. Notwithstanding the foregoing, Blue Surge Marketing Agency will not disclose any Vendor Contracts that have been uploaded to the Service to any third party without your authorization. However, for clarity, you acknowledge and agree that Blue Surge Marketing Agency may collect, analyze and use certain Vendor Contract information on an aggregated, anonymous basis in order to provide the Services.

However, for clarity, you acknowledge and agree that Blue Surge Marketing Agency may collect, analyze and use certain Vendor Contract information on an aggregated, anonymous basis in order to provide the Services. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Blue Surge Marketing Agency are non-confidential and Blue Surge Marketing Agency will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that Blue Surge Marketing Agency may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Blue Surge Marketing Agency, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

Publicity. You acknowledge and agree that Blue Surge Marketing Agency may use your name and logo on Blue Surge Marketing Agency’s website and marketing materials to identify your relationship with Blue Surge Marketing Agency.

Acknowledgment

These are the Terms and Conditions governing the use of this Service and the agreement that operates between You and the Company. These Terms and Conditions set out the rights and obligations of all users regarding the use of the Service.

Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service.

By accessing or using the Service You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions then You may not access the Service.

You represent that you are over the age of 18. The Company does not permit those under 18 to use the Service.

Your access to and use of the Service is also conditioned on Your acceptance of and compliance with the Privacy Policy of the Company. Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Application or the Website and tells You about Your privacy rights and how the law protects You. Please read Our Privacy Policy carefully before using Our Service.

Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device, (iii) the ability to access certain features through an application downloaded and installed on a mobile device, and (iv) the ability to receive notifications, messages, and updates on your mobile device (including via calls and text messages) (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Services, you are also consenting to be contacted by Blue Surge Marketing Agency  about our services and products by telephone (on a recorded line), automated calling, pre-recorded calling, text message, email, fax, telephone or any means, even if you have opted in to the National Do Not Call List, any state equivalent Do Not Call List or the internal Do Not Call List of any company. You do not have to agree to receive such communications as a condition of getting any services or products from Blue Surge Marketing Agency. In the event you no longer want to receive communications from Blue Surge Marketing Agency you agree to notify us directly. In the event you no longer want to receive communications from Blue Surge Marketing Agency you agree to notify us directly at support[at]thebluesurge.com.

Social Networking Services

You may enable or log in to the Service via various online third party services, such as social media and social networking services like Facebook or Twitter (“Social Networking Services”). By logging in or directly integrating these Social Networking Services into the Service, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating these Social Networking Services and Blue Surge Marketing Agency’s use, storage and disclosure of information related to you and your use of such services within Blue Surge Marketing Agency (including your friend lists and the like), please see our Privacy Policy at https://thebluesurge.com/privacy-policy/. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Blue Surge Marketing Agency shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

In addition, Blue Surge Marketing Agency is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Blue Surge Marketing Agency is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Blue Surge Marketing Agency enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.

 

Links to Other Websites

Our Service may contain links to third-party web sites or services that are not owned or controlled by the Company.

The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that You visit.

Termination

We may terminate or suspend Your access immediately, without prior notice or liability, for any reason whatsoever, including without limitation if You breach these Terms and Conditions. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Service.

Upon termination, Your right to use the Service will cease immediately.

Limitation of Liability

Notwithstanding any damages that You might incur, the entire liability of the Company and any of its suppliers under any provision of this Terms and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You through the Service or 100 USD if You haven’t purchased anything through the Service.

To the maximum extent permitted by applicable law, in no event shall the Company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Service, third-party software and/or third-party hardware used with the Service, or otherwise in connection with any provision of this Terms), even if the Company or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these states, each party’s liability will be limited to the greatest extent permitted by law.

“AS IS” and “AS AVAILABLE” Disclaimer

The Service is provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, neither the Company nor any of the company’s provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

Governing Law

The laws of the Country, excluding its conflicts of law rules, shall govern this Terms and Your use of the Service. Your use of the Application may also be subject to other local, state, national, or international laws.

Disputes Resolution

If You have any concern or dispute about the Service, You agree to first try to resolve the dispute informally by contacting the Company.

We want to address your concerns without needing a formal legal case. Before filing a claim against Blue Surge Marketing Agency, you agree to try to resolve the dispute informally by sending us a written Notice of Dispute at support@thebluesurge.com that includes your name, a detailed description of the dispute, and the relief you seek. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 60 days after submission, you or Blue Surge Marketing Agency may bring a formal proceeding. If you reside in the EU, the European Commission provides for an online dispute resolution platform, which you can access here: https://ec.europa.eu/consumers/odr.

Judicial Forum for Disputes. You and Blue Surge Marketing Agency agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the federal or state courts of Nassau or Suffolk County, New York, subject to the mandatory arbitration provisions below. Both you and Blue Surge Marketing Agency consent to venue and personal jurisdiction in such courts. If you reside in a country (for example, a member state of the European Union) with laws that give consumers the right to bring disputes in their local courts, this paragraph doesn’t affect those requirements.

IF YOU’RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

We Both Agree to Arbitrate. You and Blue Surge Marketing Agency agree to resolve any claims relating to or arising out of these Terms or the Services through final and binding individual arbitration by a single arbitrator, except as set forth under the “Exceptions to Agreement to Arbitrate” below. This includes disputes arising out of or relating to the interpretation or application of this “Mandatory Arbitration Provisions” section, including its scope, enforceability, revocability, or validity. The arbitrator may award relief only individually and only to the extent necessary to redress your individual claim(s); the arbitrator may not award relief on behalf of others or the general public.

Opt out of Agreement to Arbitrate. You can decline this agreement to arbitrate by requesting and submitting an opt-out form within 45 days of first registering your account or agreeing to these Terms. However, if you agreed to a previous version of these Terms that allowed you to opt out of arbitration, your previous choice to opt out or not opt out remains binding.

Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Consumer Arbitration Rules. The AAA’s rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879. The arbitration will be held in the United States county where you live or work, or any other location we agree to. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. If your claim is for $10,000 or less, Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

Exceptions to Agreement to Arbitrate. Either you or Blue Surge Marketing Agency may assert claims, if they qualify, in small claims court in any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Nassau or Suffolk County, New York, to resolve your claim.

 

For European Union (EU) Users

If You are a European Union consumer, you will benefit from any mandatory provisions of the law of the country in which you are resident in.

United States Legal Compliance

You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.

Severability and Waiver

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.

Translation Interpretation

These Terms and Conditions may have been translated if We have made them available to You on our Service.
You agree that the original English text shall prevail in the case of a dispute.

Changes to These Terms and Conditions

We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material We will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at Our sole discretion.

By continuing to access or use Our Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please stop using the website and the Service.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Contact Us

If you have any questions about these Terms and Conditions, You can contact us:

  • By email: support@thebluesurge.com
  • By mail: 915 A Carmans Rd Suite 253 Massapequa, NY 11758, United States
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