Surge Markets App and Web Terms and Conditions

Effective date: 22 June 2024

1. Legal Notice 

1. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING ANY OF THE SERVICES, ACCESSING THE WEBSITE AND USING THE MOBILE APP.
   1. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SURGE MARKETS LLC ESTABLISHING THE TERMS AND CONDITIONS ON WHICH THE WEBSITE AND MOBILE APP MAY BE USED. BY USING THE SERVICES, ACCESSING THE WEBSITE AND USING THE MOBILE APP OR ANY PART THEREOF, YOU WILL BE DEEMED TO HAVE AGREED TO THE TERMS AND CONDITIONS SET OUT HEREIN.
   1. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS, PLEASE DO NOT USE THE SERVICES, ACCESS THE WEBSITE OR USE THE MOBILE APP OR ANY PART THEREOF.
   1. YOU WILL BE DEEMED TO HAVE AGREED TO THE REVISED TERMS AND CONDITIONS IF YOU CONTINUE TO USE THE SERVICES, ACCESS THE WEBSITE AND USE THE MOBILE APP FOLLOWING ANY CHANGE TO THESE TERMS AND CONDITIONS.

2. Scope of application, Services

• These terms and conditions (“T+C App + Web“) means the Terms and Conditions herein and the Company’s Privacy Policy and Personal Information Collection Statement and Notice to Customers and Other Individuals Relating to the Personal Data (Privacy) Ordinance (the “Ordinance”) and the Code of Practice on Consumer Credit Data (the “Code”).
  • The T+C App + Web apply to the business relation between the customer and Surge Markets LLC (“Surge”) as provider of a mobile application (“Surge App“, including the iOS and Google Play versions and such other mobile applications and/or versions) and a website -www.surgepayme.com, (“Surge Web” – Surge Web and Surge App collectively referred to as “Surge App + Web“).
  • Customers need the Surge App + Web in order to use products and services that are accessible from the Surge App + Web, and it provides customers with joint functionality (such as access passcodes, the display format and filters to display transaction history on the Surge App) and joint financial overviews on the Surge App. The T+C App + Web sets rules about the access to and the use of the Surge App + Web.
  • These T+C App+Web do not apply to any services that are merely accessible from Surge App + Web, to the respective dedicated app and online environments and to the data retrieved from such services. Such services are governed by separate terms and conditions which can be found on the Surge Web under “legal documents” and in Surge App, for example:
• any payment services provided by Surge
• Investment services
• any other offers or Services by Surge, its group companies or third parties.

3. Surge App + Web Content; IP rights

• Surge is exclusively responsible for and retains all right, title and interest (including copyrights, trademarks, patents, as well as any other intellectual property or other right) in all information and content (including all information, images, videos, databases and computer programs) available on the Surge App + Web (“Surge Content”) and in the software underlying the Surge App + Web or the Surge Services (“Surge Software”).
  • The ability or permission by Surge to use or access the Surge App + Web shall not convey any proprietary or ownership rights in the Surge Content or the Surge Software. The customer shall not attempt to modify, translate, disassemble, de-compile, copy or reverse engineer the Surge Content or the Surge Software or create any derivative product based thereon.
  • Any use of the Surge App + Web beyond an ordinary use, in particular the private and commercial reproduction, modification, distribution or storage of information or files, in particular of texts, parts of texts, images and film material, requires Surge’s prior express written consent. This also applies to the inclusion into electronic databases and the reproduction on any data carriers, into any kind of social media, into applications or providing accessibility in Internet, as well as modification, distribution or other misuse. By downloading or sending the source code, the customer does not acquire any ownership rights to the Surge App + Web. No copyrights or other ancillary copyrights shall be transferred. If the service is discontinued the customer is obliged to delete the software provided immediately. In all other respects, the legal limits arising from copyright law and other applicable legal provisions shall apply.
  • The Surge App + Web may contain links to other websites that may contain information produced or disclosed by persons that are independent from Surge. Surge is not responsible for such information and cannot accept any liability. The mere existence of a link to an external provider content on the Surge App + Web may not be seen as a recommendation, endorsement or other kind of support of such content or its provider by Surge.

4. Access to the Surge App and Web

• Access to the Surge App and Web requires registration for the services provided thereon accordance with Section 1.2 (“Registration”). Surge reserves the right to refuse Registration to an applicant without providing reasons or revoke it. Eligibility of any person for particular Services is subject to the final determination of the Company.
  • Registration requires the applicant to have the following devices (“Access Devices”) available (and keep the Access Devices available throughout his/her status as a customer of Surge):
• an email address with an inbox to which only he him/herself has access (“Customer Email Address“); and
• a suitable personal computer or browser for the Surge Web (only available for Business Clients) and for the Surge App, a suitable smartphone (see “System Requirements”);
  • For Registration the applicant must:
• download the Surge App / enter the Business Registration on Surge Web;
• provide all data requested for the respective service, including the Customer Email Address (“Customer Data“), take all other steps required to onboard to the respective service;
• create a password and a PIN code, a FaceID or TouchID (the password and PIN code, FaceID or TouchID together the “Customer Identification Instrument“). The Customer Identification Instrument is used for authentication on the Surge App and Web and also serves for authentication for other services available from Surge App and Web;
  • By completing the Registration, the applicant makes a binding offer to Surge for entering into an agreement for the use of the Surge App + Web in accordance with these terms. If Surge accepts such offer, it will send a confirmation to the Customer Email Address as a consequence of which the applicant becomes a customer of Surge and any other services mentioned in such confirmation.

5. Use and Disclosure of Personal Information 

• Unless restricted by applicable law, Users agree that any and all personal information/data relating to the Users collected by the Company through the Website and/or the Mobile App from time to time may be used and disclosed for such purposes and to such persons as may be in accordance with the Company’s Privacy Policy and Personal Information Collection Statement and Notice to Customers and Other Individuals Relating to the Personal Data (Privacy) Ordinance (the “Ordinance”).
  • Users’ visit to the Website and/or use of the Mobile App may be recorded for analysis on the number of visitors to the Website and general usage patterns. Some of this information will be gathered through the use of “Cookies”.
  • Cookies are small pieces of data transmitted from a web server to a web browser. Cookie data is stored on a local hard drive such that the web server can later retrieve the cookie data from a web browser while no personally identifiable information about Users is collected. This is useful for allowing the Website and the Mobile App to maintain information about the use of the Website and the Mobile App, thus enabling the Company to provide more useful features to Users, to tailor the contents of the Website and the Mobile App to suit Users’ interests and, where applicable, provide Users with promotional materials or direct marketing based on Users’ usage patterns. Cookies are also useful in monitoring the effectiveness of the Website and the Mobile App, tracking aggregate metrics such as total number of visitors, traffic and demographic patterns, fixing problems with the website, enhancing security and possibly restricting access to the website for security concerns. The Company will be able to access the information stored on the cookies and record how Users use the Website and the Mobile App.
  • Cookies are designed to be read only by the website that provides them. Cookies cannot be used to obtain data from a User’s hard drive or his/her e-mail address) or gather a User’s sensitive information.
  • The Company also work with third parties to research certain usage and activities on the Website and the Mobile App. They use technologies such as cookies, spotlight monitoring and web beacons to collect information for this research. They use the information collected through such technologies (i) to find out more about Users of the Website and/or the Mobile App, including User demographics and behaviour and usage patterns; (ii) for more accurate reporting; and (iii) to improve the effectiveness of the Company’s marketing. They process the information collected and then share it with the Company. No personally identifiable information about Users is collected by these third parties or shared with the Company as a result of this research.
  • Most browsers are initially set to accept cookies. If Users prefer, Users can set their browser to disable cookies or to inform them when they are set. If Users disable cookies from their web browsers, Users may not be able to enjoy all the features of the Website and/or the Mobile App or access the Company’s Internet financial products and services. If Users accept cookies, Users will be acknowledging that their information is being collected, stored, accessed and used as outlined above.
  • If there is an SD card or other storage device available in Users’ Electronic Devices, the Company may access such storage device for storing and retrieving encrypted application data so as to enable the operation of the Website and/or the Mobile App. Users who do not allow the Company to use the information in the above manner may at any time change the setting of the Electronic Devices or uninstall the Mobile App. In such event, the User will not be able to use the Website and/or the Mobile App.

6. Customer’s duties of cooperation and diligence

• The customer shall always comply with Surge’s safety instructions as set out on the Surge App + Web.
  • The customer shall check the messages sent by Surge to the Customer Inbox and/or the Customer Email Address on a regular basis. The customer shall promptly notify Surge of any changes of his/her Customer Data.
  • The customer is responsible for keeping his/her Customer Identification Instrument confidential and secured against access by third parties. In particular, the customer shall ensure the following:
• The Customer Identification Instrument must not be stored electronically in an unsecured way outside of the Surge Authentication Process;
• when entering the Customer Identification Instrument, it must be ensured that other persons cannot spy out such features;
• the Customer Identification Instrument must not be forwarded outside the Surge Authentication Process, i.e. by way of example, it may not be forwarded by email;
• the different elements of the Customer Identification Instrument must not be stored together; and
• the combination of the Customer Identification Instrument and the Customer Data must not be used for any other service (other than those accessed through the Surge App and Web).
  • If the customer discovers that his/her Customer Identification Instrument has been retrieved by any third party (“Customer Security Violation”), he/she shall promptly notify Surge thereof.
  • The customer is responsible for meeting all System Requirements, and for all fees and costs arising from the use of his/her equipment in connection with the Surge App + Web, including network usage and the fees of the respective smartphone provider.
  • Users are advised to activate the screen auto-lock function of their Electronic Devices. Do not use easy-to-guess personal information, numbers or words as password and avoid using the same password that Users have used or accessed other web services. Do not share username or password to or allow access or use of username and password by others. Never leave Electronic Devices unattended. The browser and the Mobile App should be closed after use. For safety purpose, some functions in the Website and/or Mobile App may be disabled or the account is logged-out after the Website and/or the Mobile App remains idle for 15 minutes.

7. Unauthorized use of the Surge App + Web by the customer

• The customer may only use the Surge App + Web for legitimate purposes (in compliance with all applicable laws and regulations) and not in a manner that could violate the integrity of Surge or any of their affiliated companies or partners.
  • The Surge App + Web may only be used by the customer that applied for Registration in his/her own name and representation.
  • The use of the Surge App with an Access Device that circumvents the manufacturer’s restrictions on use or security functions especially with respect to the operating system, (e.g. through a process such as jailbreaking or by means of rooting) is expressly prohibited.
  • Unless expressly permitted in the T+C App + Web, the customer shall not:
• publish, distribute or transfer the Surge App;
• reproduce the Surge App;
• store the Surge App + Web on a server or another storage device connected to a network, or to set up a database by systematically retrieving and storing data from the Surge App;
• remove or modify the contents of the Surge App + Web or circumvent security measures or interfere with the proper functioning of the Surge App + Web or the server on which the Surge App is hosted;
• link to the Surge App+Web from third party online content or functionality; or
• do anything else that is not expressly permitted by the T+C App + Web.

8. Blocking of access to the Surge App + Web

• Surge shall be authorized to block the customer’s access to the Surge App + Web at any time when it discovers:
• an unauthorized use of the Surge App by the customer; and/or
• the occurrence of a Customer Security Violation.
  • Surge shall also be authorized to block the customer’s access to the Surge App + Web at any time in case of a violation of terms and conditions of a service mentioned in Section 1.3. by the customer, or in case such service otherwise requires the blocking of access to the entire Surge App + Web (e.g. in order to prevent fraud within or outside the responsibility of the customer).
  • Surge shall inform the customer of a blocking and, if possible and legally permissible, the steps required to enable Surge to undo the blocking of the customer’s access to the Surge App + Web.

9. Availability, System Requirements and modifications to the Surge App + Web

• The following System Requirements apply:
• for the payment functionality on the Surge Web (only available for Business Clients), a personal computer and browser that meet general security and communication standards (such as an up-to-date TLS/SSL encryption).
• for the Surge App, a smartphone that meets the requirements for the operating system (iOS / Android) with an active mobile phone number and the Surge App. Currently supported versions and further information can be found on www.Surge.money.
• It is the customer’s responsibility to ensure that his/her equipment meets all technical requirements necessary to use the Surge App at all times.
  • The customer has no claim to permanent and uninterrupted availability of the Surge App + Web. The Surge App + Web is provided as-is and as-available, and Surge makes no representations or warranties of any kind concerning the Surge App + Web, whether express, implied, statutory or other. While trying to provide customers with the best of its services, any kind of software – also the Surge App + Web is not free of latent or other defects, bugs or errors, whether known or discoverable.
  • Surge may modify or discontinue the Surge App + Web or parts thereof. In particular, Surge may modify the format and content of the Surge App + Weband/or the requirements for the Access Devices from time to time. This may mean that Surge may discontinue servicing out-of-date versions of operating systems for the Surge App or very outdated browsers for security reasons. In this case, Surge will, to the extent reasonably possible, notify the customers two months before discontinuing the service on your smartphone.
  • Please download and install updates and patches for the Mobile App and the other mobile applications, operation systems and browsers regularly.

10. Restriction of Liability of Surge

1. Surge shall only be liable for foreseeable losses. Liability for indirect damage, in particular consequential damage, unforeseeable damage or atypical damage as well as loss of profit shall be excluded. The same applies to the consequences of industrial disputes, accidental damage and force majeure.
   1. Surge does not accept liability for damages arising to a customer as a result of using the services provided or contents published by Surge.
   1. The above stated limitation of liability shall not apply (i) in cases of intentional or grossly negligent behaviour on the part of Surge or any of its vicarious agents, (ii) to any damage arising from injury to life, body, or health resulting from a breach of duty by Surge or any of its vicarious agents; and (iii) to the breach of any obligations, the proper fulfilment of which is essential for the proper performance of the contract and on the fulfilment of which the customer may reasonably rely.
   1. In case of a third party claiming that the Surge App, its possession thereof or its usage violates intellectual property of a third party, Apple is not responsible for the investigation, defence, settlement or fulfilment of such a claim regarding the violation of intellectual property.
   1. Any questions, complaints or claims in relation to the Surge App + Web should be raised with Surge. The contact information is provided in Surge App and Surge Web.

11. Amendments to the T+C App + Web

1. Any proposed amendments of the T+C App + Web shall be notified to the customer by no later than two (2) months prior to their proposed effective date.
   1. The customer may either approve or indicate disapproval of the amendments before their proposed effective date.
   1. Any amendments shall be deemed to have been approved by the customer, unless the customer indicates disapproval before their proposed effective date. Surge shall expressly draw the customer’s attention to this tacit approval in its offer. If the customer is offered the changes, the customer may also terminate the agreement affected by the changes free of charge with immediate effect before the proposed effective date of the changes. Surge shall expressly draw the customer’s attention to this right of termination in its offer. If the customer terminates the agreement, the amendment shall not be applied to the terminated agreement.
   1. Notwithstanding the foregoing paragraphs of Section 3, Surge shall always be entitled to make any clarifications and make any changes to the T+C App + Web that are not detrimental to the customer, without adhering to any notification period. In this case Surge shall post a new version of the T+C App + Web to the terms and conditions site. Further, Surge and the customer may always agree on an earlier or immediate application of any proposed new terms; this applies in particular in case of new product features or functionalities that the customer has actively requested from Surge.

12. Termination

1. The customer may terminate the entire business relationship with Surge, or individual parts thereof, at any time without observing a notice period.
   1. Surge may terminate the entire business relationship with the customer, or individual parts thereof, at any time by way of an ordinary termination giving no less than one month’s prior notice.
   1. The customer’s and Surge’s right to terminate the business relationship for good cause (wichtiger Grund) without observing a notice period shall remain unaffected. Examples for good termination causes are repeated violations of the T+C App + Web, a serious one-time violation of the T+C App + Web.
   1. It terminates automatically when the services provided accordance to Clause 1.3 are terminated.

13. Communications

1. Communications between Surge and the customer in connection with the Surge App + Web will be in electronic form. Notifications by Surge to the customer will be placed into an online inbox on the Surge App set up individually for the customer (“Customer Inbox”) and/or send to the Customer Email Address, unless a notification in paper form is required by law.
   1. In addition, Surge shall always be entitled to offer additional means of communication to the customer, e.g. customer service by telephone.

14. Governing law and settlement of disputes

1. The T+C App + Web shall be construed and governed in accordance with the laws of the Federal Republic of Germany, except for the provisions relating to updates of the T+C App + Web (Section 3) which shall be construed under the laws of the European Union country of residence of the customer. Besides this, consumers that qualify as consumers can rely on the mandatory consumer protection laws of their country of residence.
   1. Disputes between the customer and Surge shall only be brought before a German court. This applies when the customer appeals to a court as well as when Surge does so. Exceptions to the above are: (a) if mandatory law indicates a different competent court, this is binding for the customer and Surge – this means for example that for disputes with consumers the exclusive place of jurisdiction is to the courts at the residence of the consumer where Surge has directed its services to that country, and (b) if a foreign court is competent for the customer, Surge can submit the dispute to that court.

15. Customer’s capacity

1. The customer declares to have the capacity to contract under the conditions described hereunder, therefore, to be of legal majority and not to be protected under any tutorship or curatorship regimes that restrict his/her legal capacity.
   1. Use of the Surge App is not permitted if the customer (i) resides in a country, that is subject to an embargo by the U.S. government or which is regarded as a country that supports terrorism by the U.S. government; or (ii) is listed as a blocked or restricted person by the U.S. government.

16. Language of contract

1. The T+C App + Web and all further documents referred to herein are provided to the customer and concluded in the Spanish language; any translation is a courtesy translation only. By entering into T+C App + Web and using Surge services, customers confirm that the customer understands the Spanish language and agrees to communicate with Surge in the Spanish language as far as the legal relations arising under this agreement are concerned, including with respect to submitting and resolving any complaints and disputes.

17. Severability

1. If any provision of the present T+C App + Web is held to be unenforceable, the enforceability of all remaining provisions shall not be affected thereby.

Special Terms of Use for users, who download the Surge App from the Apple App Store or from Google’s Google Play Store

The following conditions apply in addition to the TC-App + Web, if a customer downloads the Surge App via the App Store by Apple Inc. (“Apple“) or the Google Play Store by Google Inc. (“Google”):

1. The customer’s use of the Android App must meet the current terms of use of Google Play. The same applies to the iOS app and the App Store terms of use
2. The terms of use are agreed upon solely between the customer and Surge. Neither Apple nor Google are a party of this contract whatsoever and have no responsibilities regarding the terms of use and the content thereof. Only Surge is solely responsible for the Android or iOS App, services and content, which are accessible via these. Google and Apple have neither an obligation nor a liability regarding the Android App, the iOS App or this agreement.
3. The customer is granted a non-transferable right of use of the Surge App on every device that is in the customer’s possession within the scope of the terms of use in the general terms and conditions of the App Store or the Google Play Store, except if the Surge App can also be accessed and used by other accounts associated with the purchaser via Apple’s family sharing or volume purchasing.
4. Apple and Google are not responsible for providing maintenance and support services for the Surge App. Apple and Google are not in any way obliged to provide maintenance and support services for the Surge App.
5. Apple and Google are not responsible for Surge’s warranties, no matter whether they arise explicitly or are implied by act of law if not waived effectively. In the case of us Surge not fulfilling applying warranties, the customer may contact Apple or Google for a refund of the potential price, if any, to which the customer purchased the Surge App. The customer further notes, that Apple and Google do not have any other warranties of any kind regarding Surge, to the extent permitted by law.
6. Apple is not responsible for claims associated to the Surge App, possession and/or its usage, including (i) product liability claims, (ii) allegations that the application does not meet the applicable jurisdictional and administrative regulations; and (iii) claims of consumer protection law or related legislative acts.
7. Apple and its subsidiaries are third-party beneficiaries of these terms of use and by accepting these terms of use, Apple has the right to enforce this contract as a third-party beneficiary of the contract against the customer; this right shall be deemed to be accepted by Apple.