Welcome, and thank you for your interest in tagSurf. tagSurf is a social content ranking service where users can discover, rank and share social content based on hashtags.
The tagsurf service and website (located at http://tagSurf.co
) along with the associated services, networks, downloadable software and mobile applications (including tablet applications) (collectively, the “Service
”) is operated by tagSurf Corp. (“tagSurf
,” or “us
” or collectively, "Users
") and tagSurf regarding your use of the Service.
These Terms provide that all disputes between you and tagSurf will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 16 below for the details regarding your agreement to arbitrate any disputes with tagSurf.
You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization or company, please contact tagSurf at beta@tagSurf.co
to enter into a separate agreement to use the Service.
2. Accounts and Registration
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your email address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you should promptly change your login information. If you are unable to access your profile, you must immediately notify us at beta@tagSurf.co
3. User Content
3.1 User Content Generally. Certain features of the Service permit users to post content, including messages, text, photos, images, audio, video and any other types of works (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
3.2 License Grant to tagSurf. By posting or publishing User Content, you grant tagSurf a perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your User Content by tagSurf may be without any compensation paid to you.
3.3 Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service. YOU ALSO ACKNOWLEDGE THAT ANY USER CONTENT THAT YOU SHARE WITH ANOTHER USER OF THE SERVICE MAY BE FORWARDED TO OTHERS USING THE SERVICE OR PUBLICLY SHARED OUTSIDE OF THE SERVICE, REGARDLESS OF WHETHER YOU HAVE GRANTED THE USER PERMISSION TO DO SO OR YOU HAVE DISCONTINUED YOUR USE OF THE SERVICE.
3.4 User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent and warrant that:
you are the creator and owner of, or have the necessary licenses, rights, consents and permissions to use and to authorize tagSurf and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 4 and in the manner contemplated by tagSurf and these Terms; and
your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate 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; or (ii) slander, defame, or libel any third party.
3.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. tagSurf may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against tagSurf with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, tagSurf does not permit copyright-infringing activities on the Service.
4. Digital Millennium Copyright Act
4.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
PO Box 641384
San Francisco, CA 94164
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
4.2 Repeat Infringers. tagSurf will promptly terminate without notice the accounts of users whom are determined by tagSurf to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
4.3 Counter Notification. If you elect to send us a counternotice, to be effective it must be a written communication to our Designated Agent (indicated above) that includes the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
a physical or electronic signature of the subscriber;
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
a statement by the subscriber, that under penalty of perjury, subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
the subscriber's name, address and telephone number and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which tagSurf may be found, and that the subscriber will accept service of process from the person who provided notification under Section 512(c)(1)(C) or an agent of such person.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
5. Prohibited Conduct
5.1 BY USING THE SERVICE YOU AGREE NOT TO:
use the Service for any illegal purpose, or in violation of any local, state, national or international law;
violate, or encourage others to violate, the rights of third parties, including infringing or misappropriating third-party intellectual property rights;
harass, abuse, threaten or stalk other users of the Service;
modify or create derivative works of any User Content distributed by tagSurf, or unless expressly authorized, use or distribute User Content outside of the Service;
post, upload or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful or otherwise inappropriate;
interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment or servers connected to or used to provide the Service, or violating the regulations, policies or procedures of such networks, equipment or servers;
perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth; or
attempt to do any of the foregoing in this Section 5, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 5.
6. Third-Party Tools
tagSurf may provide tools through the Service that enable you to export information, including User Content, to third-party services (including, without limitation, social networks such as Facebook, Twitter and Instagram). By using these tools, you agree that we may transfer such information to the applicable third-party service. SUCH THIRD-PARTY SERVICES ARE NOT UNDER OUR CONTROL, AND WE ARE NOT RESPONSIBLE FOR THEIR USE OF YOUR EXPORTED INFORMATION. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
7. Termination of Use; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, tagSurf, in its sole discretion may delete your user profile on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. We may offer functionality that will allow you to delete your profile at any time by going to your profile settings and following the steps necessary to delete your profile. Alternatively, if such functionality is not available, you may contact customer service at beta@tagSurf.co
8.2 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the "Additional Terms"), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
9. Ownership; Proprietary Rights
The Service is owned and operated by tagSurf. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services and all other elements of the Service (the “Materials”) provided by tagSurf are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of tagSurf or our third-party licensors. Except as expressly authorized by tagSurf, you may not make use of the Materials. tagSurf reserves all rights to the Materials not granted expressly in these Terms.
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify and hold harmless tagSurf and its officers, directors, employees, consultants, affiliates, subsidiaries, licensors and agents (collectively, the "tagSurf Entities") from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party (including, without limitation, other users). We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
11. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE TAGSURF ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. THE TAGSURF ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TAGSURF ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH MERCHANTS AND OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD OR OTHERWISE OBTAIN MATERIALS OR CONTENT (INCLUDING, WITHOUT LIMITATION, COUPONS) THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
12. Limitation of Liability
IN NO EVENT WILL THE TAGSURF ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE TAGSURF ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE TAGSURF ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE), OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO TAGSURF FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) FIFTY DOLLARS ($50 USD).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Each provision of these terms that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is to allocate the risks under these terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this section 12 will apply even if any limited remedy fails of its essential purpose.
13. Governing Law
These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and tagSurf agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes.
15. Dispute Resolution and Arbitration
15.1 Generally. In the interest of resolving disputes between you and tagSurf in the most expedient and cost effective manner, you and tagSurf agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TAGSURF ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Notwithstanding subsection 15.1, tagSurf and you agree that nothing herein will be deemed to waive, preclude or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
15.3 Arbitrator. Any arbitration between you and tagSurf will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting tagSurf.
15.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). tagSurf's address for Notice is: tagSurf Corp., PO Box 641384, San Francisco, CA 94164. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or tagSurf may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or tagSurf shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, tagSurf shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by tagSurf in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
15.5 Fees. In the event that you commence arbitration in accordance with these Terms, tagSurf will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Madison, WI provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse tagSurf for all monies previously disbursed by it that are otherwise your obligation to pay under 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 decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
15.6 No Class Actions. YOU AND TAGSURF AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and tagSurf agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.7 Modifications. In the event that tagSurf makes any future change to this arbitration provision (other than a change to tagSurf's address for Notice), you may reject any such change by sending us written notice within thirty (30) days of the change to tagSurf's address for Notice, in which case your account with tagSurf shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
15.8 Enforceability. If Subsection 15.6 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 shall govern any action arising out of or related to these Terms.
16. Modification of the Terms
17. Contact Information
The services hereunder are offered by tagSurf Corp., PO Box 641384, San Francisco, CA 94164. You may contact us by sending correspondence to the foregoing address or by emailing us at beta@tagSurf.co
. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.