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Terms of Use

Last Updated: October 1, 2024

Welcome to Surfline!

Please read these Terms of Use ("Terms") carefully as they govern your use of our website(s), products, services and applications (including without limitation: Surfline.com and its subdomains, Surfline cameras and Cam Rewinds, forecasts and data insights (including written and audio visual), maps, Surfline’s mobile application(s), Surfline Sessions, Perks, and video and account services in connection with Surfline partnerships at surf parks (collectively, the "Services"). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:

Email: [email protected]

Address: 2261 Market Street STE 10852, San Francisco, CA 94114

Surfline\Wavetrak, Inc. is a corporation registered in Delaware, United States of America. The group of companies operating under the "Surfline" brand (and to whom these Terms apply) is made up of different legal entities including, Surfline\Wavetrak, Inc., Wavetrak Limited, Wavetrak Oceania Pty Ltd, and Surfline NZ Limited. These Terms are issued on behalf of the Surfline group of companies so when we mention "Surfline", "we", "us" or "our" in these Terms, we are referring to the relevant company in the Surfline group of companies responsible for providing the Services to you, and these Terms form a binding contract between you and the relevant company. Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services.

The Services are intended solely for persons who are 16 years old, or such higher age required in your country to use the Services. You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you represent and warrant that you are at least 16 years of age and have received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to review and agree to these Terms on your behalf).

These Terms include the provisions in this document as well as those in the Privacy Policy. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions ("Additional Terms"), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.

These terms include important information about rules and restrictions that govern your use of the Services, how Surfline may bill you, auto-renewals and other provisions that affect your rights and disputes between you and Surfline, including limitations on Surfline’s liability, class action waivers, and resolution of disputes by arbitration in court. PLEASE NOTE, THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT ANNEX BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Please note, if you are a resident of the European Economic Area ("EEA") or the United Kingdom ("UK") you may be subject to different terms, and we endeavor to explicitly called out such differences throughout the Terms.

1. SERVICES PROVIDED BY US

Services and Memberships

Surfline provides certain Services that are available free-of-charge, while access to other Services is only available through a paid membership (more information can be found here) (collectively, "Paid Memberships"). Certain Services (including functions, features, membership plans, and promotional offerings) vary by region and platform, meaning certain Services may be different or not be available to you depending on how you access the Services and where you are accessing the Services from.

Paid Membership: Auto-Renewal and Cancellation. Any Paid Membership(s) you have signed up for will be automatically extended for successive renewal periods of the same duration as the membership term originally selected, at the then-current non-promotional rate, unless you cancel your Paid Membership and opt-out of auto-renewal before the end of the membership term.

If you signed up on Surfline.com, you may cancel your Paid Membership by visiting "Subscriptions" in your "Account" page. If you signed up through the Google Play or iTunes store, you may cancel your Paid Membership by downgrading through the corresponding store. If you cancel a Paid Membership, you may use your membership through the end of your current billing cycle, at which time your membership will not renew, and you will be downgraded to a free account.

Except as otherwise explicitly set forth in these Terms, there are no refunds or credits for partially used Paid Membership periods. However, Surfline may grant refunds or credits on a case-by-case basis at our sole discretion. Surfline’s grant of a refund or credit in one instance does not obligate Surfline to provide a refund or credit in the future, under any circumstances.

Free Trials and Promotions. Your membership may start with a free trial. The free trial period for any membership will last for the period of time specified when you signed up. Free trials may not be combined with certain other offers and promotions, as specified. If you begin your Paid Membership with a free trial, we will begin billing your Payment Method (as defined in these Terms) for fees at the end of the free trial period unless you cancel your Paid Membership prior to the end of the free trial period. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Membership, please contact us at [email protected].

If you were provided a discount when you initially signed up for a Paid Membership, that promotional price only applies to your initial membership term and your Paid Membership will automatically renew at the full membership price unless you cancel as set forth above. Notwithstanding the foregoing, if you subscribed to the 25 & Under membership that Paid Membership will renew every year at the discounted rate until the renewal immediately following your 26th birthday, at which time you agree that Surfline has the authority to begin billing your Payment method at the Premium membership price then in effect, unless you cancel your Paid Membership.

Cooling-off period (UK and EEA customers only). If you are a customer based in the UK or EEA, you must reach out to us at [email protected] within 14 days of beginning your Paid Membership to exercise any rights of cancellation that you may be afforded under applicable law. For any refunds issued, we will not include the sum payable for the time you were receiving the Services before you reached out to communicate cancellation. Please note, if you signed up for a Paid Membership through the iTunes Store, Google Play or similar third party store, you will need to seek a refund from the third party store directly.

Cam Rewinds

The Surfline camera rewinds feature ("Cam Rewinds") may allow certain users (which may be restricted in Surfline’s sole discretion) to view and/or download certain content captured by select Surfline cameras for a limited period of time. Cam Rewinds may allow such users, through their Surfline Account, to identify, trim, download and share certain Cam Rewinds. Surfline does not make any representation or warranty, and shall have no obligation, with respect to: (a) the capture, retention, storage, or availability of any Cam Rewinds; (b) the availability or accessibility of Cam Rewinds; (c) making any audio or video content captured by Surfline accessible or available through the Cam Rewinds; (d) the quality, viewing angles, continuity, unobstructed view or any other deficiency of any Cam Rewinds; or (e) capturing audio or video in any particular location or during any particular time-frame. Cam Rewinds may not be available or accessible, and Surfline has no obligation to make any Cam Rewind available or accessible, even if a user has identified or marked for storage such Rewind Material. Use of the Cam Rewinds is subject to our Privacy Policy.

Surf Parks

Surfline may partner with surf park operators (a “Park Partner”) to provide video capture and related services at the Park Partner’s property. Your surf sessions at a Park Partner property may be captured on Surfline cameras and shared on our Services. Video of your surf sessions may also be made available as Cam Rewinds. You may be required to create a Surfline Account and sign up for a Paid Membership to access the Cam Rewinds feature. Use of Cam Rewinds captured at a Park Partner property is subject to these Terms and our Privacy Policy.

In addition to any waiver of claims and releases provided to a Park Partner to participate in activities at their property, you acknowledge that: (a) when you participate in activities captured by Surfline cameras at a Park Partner property, you accept that there are risks in doing so, and that Surfline is not responsible for such risks; (b) Surfline has no control over, and assumes no responsibility for, the property, services and practices of any Park Partner; (c) we are not responsible for any liability related to your visit to a Park Partner property or arising from your use of a Park Partner’s services. We encourage you to be aware when you visit a Park Partner property and to read the terms and conditions and privacy policy before visiting or utilizing their services.

By surfing in front of a Surfline camera at a Park Partner property, you grant us and our assigns, licensees, and successors in interest the irrevocable right to record or otherwise capture any or all of your participation in the activities offered by the Park Partner or use of the property and to use and exploit photographs and/or videos of you arising therefrom, as well as your image and likeness portrayed therein or recorded from such photographs or videos (collectively, the “Images”) in all forms, media and manners, known or unknown, in perpetuity throughout the world, in any manner for publicity, promotions, advertising, trade, commercial, and/or any other lawful purposes (whether public or private), without any reimbursement of any kind due to you, or the need to pay you any fee or compensation whatsoever. You agree to a full release of all your rights and claims related to the Images and you waive and release any right to inspect or approve any Image, including any changes or alterations thereto. We will not be liable in any way for any loss or damage of any kind incurred as a result of your participation in the activities offered by the Park Partner or your use of the Park Partner property, including use of any Image. Surfline is under no obligation to produce, distribute, or use any Image.

Changes to the Services

Surfline and its third party service providers may make improvements and/or changes in the Services from time to time. For example: (a) the Services may experience temporary interruptions due to technical difficulties, maintenance or testing, or updates, including those required to reflect changes in relevant laws and regulatory requirements, (b) we may modify, suspend, or discontinue (permanently or temporarily) providing any part of the Services (including particular functions, features, Paid Membership plans, and promotional offerings), (c) we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services for Paid Memberships and free users, and (d) we may replace the Services with a substantially similar service offering.

We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Surfline reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or any portion thereof, in our sole discretion, and without notice. You agree that Surfline shall not be liable to you or to any third party, nor have any obligation to provide a refund or credit to you, for any outage, modification, suspension or discontinuance of any part of the Services (including particular functions, features, Paid Membership plans, and promotional offerings).

Third Party Services

The Services may contain links or connections to third party websites or services that are not owned or controlled by Surfline (“Third Party Services”). When you access Third Party Services, you accept that there are risks in doing so, and that Surfline is not responsible for such risks. Surfline has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, practices of or opinions expressed in any Third Party Services or by any third party that you interact with through the Services. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize. We are not responsible for any liability arising from your use of any Third Party Service.

Use of Applications

You acknowledge and agree that the availability of our mobile applications and your ability to access the Services through such mobile applications is dependent on the third party stores from which you download the mobile application, e.g., the iTunes Store from Apple or the Google Play store for Android (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from the applicable App Store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use apply.

Through our mobile applications, you may purchase ("In-App Purchase") certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.html and http://play.google.com/intl/en_us/about/play-terms.html). Surfline is not a party to any In-App Purchase.

Use of the Surfline App available via the Apple App Store

These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. ("Apple") App Store, but the following additional terms also apply to the Application:

  • Both you and Surfline acknowledge that the Terms are concluded between you and Surfline only, and not with Apple, and that Apple is not responsible for the Application or the Content;

  • The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;

  • You will only use the Application in connection with an Apple device that you own or control;

  • You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

  • In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;

  • You acknowledge and agree that Surfline, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;

  • You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Surfline, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

  • You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

  • Both you and Surfline acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and

  • Both you and Surfline acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

2. YOUR USE OF THE SERVICES

Account Creation and Access

To access the Services, you may be required to sign up for an account (“Surfline Account”), and provide us with certain information or data, such as your contact information. You agree to provide and maintain accurate, completed and updated information relating to your Surfline Account. When creating a Surfline Account, you may not use a name or email that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your Surfline Account to anyone else without our prior written permission.

Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Facebook. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.

You agree to create a Surfline Account for your own personal, non-commercial use and will not share your Surfline Account, credentials, or Paid Membership with others, unless otherwise allowed by your membership plan. You must protect the security of your Surfline Account, password and any other access tools or credentials. You’re responsible for any activity associated with your Surfline Account. To help maintain control over your Surfline Account and prevent any unauthorized users from accessing your Surfline Account, you should maintain control over the devices that are used to access the Services and not reveal the password or details of the Payment Method associated with the Surfline Account to anyone. Surfline, or its third party service providers, can take action we deem necessary (without any refund or credit if you have a Paid Membership) to protect you, Surfline or our partners from activity in violation of these Terms, identity theft or other fraudulent activity, including logging out devices linked to your Surfline Account, requiring you to change your login credentials, terminating your Surfline Account or Paid Membership (if applicable), placing your Surfline Account on hold or otherwise restricting your ability to use or access the Services.

Permitted Use and Restrictions

You will only access and use the Services for your own internal, personal use, and not on behalf of or for the benefit of any third party, including without limitation for research, as part of any business, reselling of the Services, or other commercial use.

You agree to use the Services, in accordance with all applicable laws, rules and regulations, or other restrictions on use of the Services. We can’t and won’t be responsible for your use of the Services in a way that breaks the law or is in violation of these Terms.

You represent, warrant, and agree that you will not provide or contribute anything, to the Services, or otherwise use or interact with the Services, in a manner that:

  • infringes or violates the intellectual property rights or any other rights of anyone else (including Surfline);

  • violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Surfline;

  • is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

  • jeopardizes the security of your Surfline Account, such as password sharing or allowing someone else to log in to your Surfline Account;

  • attempts, in any manner, to obtain the password, account, or other security information from any other user;

  • violates the security of any computer network, or cracks any passwords or security encryption codes;

  • runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

  • use any robot, spider, scraper or other automated means to access the Services or portion thereof;

  • use any manual, automated or programmatic method to crawl or extract data, Outputs, or portion of the Services or Content or to circumvent limits on Services, including scraping, web harvesting, or web data extraction;

  • use any data mining, data gathering or extraction method;

  • allows unauthorized API access;

  • copies or stores any significant portion of the Content; or

  • decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

  • We may terminate or restrict your use of the Services if you violate these Terms or are engaged in illegal or fraudulent use of the Services and, if you have a Paid Membership, you will not be entitled to any refund or credit.

Billing and Payment

Billing. We use a third party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Surfline Account (your “Billing Account”). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Currently, we use Stripe as our Payment Processor for the Surfline website. You can access Stripe’s Consumer Terms of Service at https://stripe.com/legal/consumer and their Privacy Policy at https://stripe.com/privacy. If you sign up through the Google Play or iTunes Store, the corresponding App Store will serve as the Payment Processor. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any fee-based Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment method (e.g., credit card, App Store, or other payment method approved by Surfline) (the “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Surfline may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.

Recurring Billing. By signing up for a Paid Membership, you acknowledge that such Services have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, ANNUALLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION BY FOLLOWING THE CANCELLATION INSTRUCTIONS IN THESE TERMS OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS.

IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, YOU MUST CANCEL THE APPLICABLE PAID MEMBERSHIP IN YOUR ACCOUNT SETTINGS, OR AS OTHERWISE DESCRIBED IN THESE TERMS, BEFORE THE END OF THE RECURRING TERM. PAID MEMBERSHIPS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, SURFLINE WILL NOT ISSUE A REFUND OR CREDIT ANY FEES THAT YOU HAVE ALREADY PAID.

Reaffirmation of Authorization. Your non-termination or continued use of a Paid Membership reaffirms that we are authorized to charge your Payment Method for that Paid Membership. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Membership.

Change in Amount Authorized. Surfline may from time to time make changes to Paid Memberships, including recurring subscription fees. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. If you do not agree to a price change, you can cancel your Paid Membership before the change takes effect.

Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges, including during or at the end of each billing cycle.

Updated Information. YOU MUST PROVIDE AND PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). IF THIS INFORMATION CHANGES, OUR PAYMENT PROCESSOR MAY UPDATE IT USING INFORMATION AND THIRD PARTY SOURCES AVAILABLE TO THEM WITHOUT ANY ACTION ON YOUR PART. YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS UNAUTHORIZED ACCESS TO YOUR SURFLINE ACCOUNT. CHANGES TO SUCH INFORMATION CAN BE MADE IN YOUR ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID MEMBERSHIPS UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE CANCELLED YOUR PAID MEMBERSHIP AS SET FORTH ABOVE.

3. PRIVACY

To learn more about what information we may collect about you, how we use that information, and with whom we share the information, please review our Privacy Policy.

United States, Children’s Online Privacy Protection Act

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at [email protected].

4. CONTENT AND INTELLECTUAL PROPERTY RIGHTS

Surfline Content

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, video (including all live webcam videos and Cam Rewinds), API data, illustrations, look and feel and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (a) without the prior consent of the owner of that Content or (b) in a way that violates someone else’s (including Surfline’s) rights.

Subject to these Terms, we grant each user of the Services a worldwide, limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of accessing and using the Services for your own personal, non-commercial use. Use, reproduction, modification, distribution or storage of any Content for any purpose other than personal use of the Services is expressly prohibited without prior written permission from us. You understand that Surfline owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content (such as Cam Rewinds), but please remember that even where these functionalities exist, all the restrictions in this section still apply.

AI-Powered Technology

Some Services or components thereof may be powered by artificial intelligence (“AI”). The Content of the Services may also include AI outputs. “Outputs” means any outputs, including any text, data, audio and images that are elicited directly or indirectly by, or otherwise made available to, you in connection with your use of the Services, including, but not limited to, the use of non-human tools, platforms and/or other technology powered or made available in connection with the use of generative AI or machine learning models (“AI-Powered Technology”). You may, accordingly, interact with Outputs in the course of utilizing the Services, and use of the Services may generate Outputs. For the avoidance of doubt, Outputs are Content.

You and anyone you share Outputs with are solely responsible for their subsequent uses. You acknowledge that Outputs may contain errors and misstatements and may be incomplete or inaccurate. Before leveraging any Outputs, you are responsible for making your own determination that the Outputs are suitable, and you are solely responsible for any reliance on the accuracy, completeness, or usefulness of any Outputs. We cannot control and have no duty to take any action regarding how you may interpret and use the Output or what actions you may take as a result of having been exposed to the Output, and you hereby release us from all liability for you having acquired or not acquired Outputs through the Services. You should not act or refrain from acting on the basis of the Outputs. We make no representations or warranties regarding any Outputs, which are provided “AS IS” and should be accessed and used at your own risk. We will not be liable in any way for any Outputs or for any loss or damage of any kind incurred as a result of your interaction with the Services or any AI-Powered Technology. You agree to defend, indemnify and hold harmless us with respect to any claims, damages or liability related thereto.

Content Restrictions

You represent, warrant and agree that you will not:

  • Exploit or otherwise grant to any third party any right, title or interest in or to the Content or any enhancements, modifications and derivative works thereof or derived therefrom (collectively, the “Content Derivatives”) for any commercial purpose, or to improve AI-Powered Technology or Third Party Model (as defined below);

  • Use or provide access to any Content or Content Derivatives to train, optimize, improve or otherwise influence the functionality or performance of AI-Powered Technology or Third Party Model;

  • Represent that any Outputs were human generated; or

  • Allow any Third Party Model provider or other third party to do any of the foregoing.

"Third Party Model” refers to any AI-Powered Technology that is developed or operated by a third party. Your use of Third Party Models may be subject to additional terms and conditions, and you are solely responsible for complying with such terms and conditions. We are unable to guarantee the suitability, accuracy, quality, security, legality and reliability of Third Party Models.

User Submissions

Anything you post, upload, share, or otherwise provide through the Services, are your “User Submissions.” Some User Submissions may be viewable by others.

You are solely responsible for all User Submissions you contribute to the Services and represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You further agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (a) infringe any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.); (b) contain sexually explicit content or pornography; (c) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (d) exploit minors; (e) depict unlawful acts or extreme violence; (f) depict animal cruelty or extreme violence towards animals; (g) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (h) that violate any law.

Licenses

In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally identifiable information.

By submitting User Submissions through the Services, you hereby do and shall grant Surfline a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services unless the Services provide you with the ability to elect for limited use of your User Submissions, in which case your User Submissions will be handled in accordance with your elections. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.

The Services may provide you with the ability to select how your User Submissions are used and mark certain User Submissions as private, public, or available only to select users of the Services. Surfline will maintain the privacy of such User Submissions in accordance with your elections where that functionality is made available. However, if you do not elect to limit use of your User Submissions, mark your User Submissions as private or available for a limited group of users or later change such designations, you are responsible for the public nature of the content and understand and acknowledge that the User Submissions may be shared publicly and used in accordance with the User Submission license granted to Surfline in these Terms.

Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “download” or “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Surfline to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.

Finally, you understand and agree that Surfline, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

United States, Digital Millennium Copyright Act (“DMCA”) Notice

In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We reserve the right to (a) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (b) remove and discontinue service to repeat offenders.

  • Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to our Designated Agent to Receive Notification of Claimed Infringement, whose contact details are listed below): (a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed; (b) Identification of works or materials being infringed; (c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Surfline is capable of finding and verifying its existence; (d) Contact information about the notifier including address, telephone number and, if available, email address; (e) A statement that the notifier has a good faith belief that the material identified is not authorized by the copyright owner, its agent, or the law; and (f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

  • Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to: remove or disable access to the infringing material; notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and terminate such content provider’s access to the Services if he or she is a repeat offender.

  • Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent: (a) A physical or electronic signature of the content provider; (b) 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 disabled; (c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and (d) Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Agent, Surfline may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Surfline may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Surfline’s discretion.

Agent to Receive Notices of Claimed Infringement:

  • Address: 2261 Market Street STE 10852, San Francisco, CA 94114, Attn: Surfline Copyright Agent

  • Email: [email protected]

5. YOUR FEEDBACK

We welcome your comments, feedback, suggestions, and other communications regarding the Services and the information and services we make available through the Services (collectively, “Feedback”). If you provide Feedback, you hereby grant to Surfline a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback without any payment to you. For this reason, we ask that you not send Surfline any Feedback that you do not wish to license to us as set forth above.

6. TERMINATION

These Terms will continue to apply to you until terminated by either you or Surfline. Surfline may suspend or terminate your Surfline Account or access to the Services, or terminate these Terms, at any time without prior notice. Cause for such suspension or termination shall include but not be limited to: (i) if we believe you have breached any of these Terms, (ii) if we stop providing the Services or any material component thereof, (iii) as requested by you (self-initiated Surfline Account deletions), (iv) unexpected technical or security issues or problems, (v) extended periods of inactivity, and/or (vi) as we believe necessary to comply with applicable law and regulations or as requested by law enforcement or other government agencies. Further, you agree that Surfline shall have no liability or responsibility to you, and (except as expressly provided in these Terms) Surfline will not refund or credit any amounts that you have already paid for any suspensions or terminations. Subject to any limitations set forth in these Terms, you may terminate these Terms at any time, in which case you may not continue accessing or using the Services. To learn how to terminate and delete your Surfline Account, please contact us at [email protected].

Provisions that, by their nature, should survive shall survive termination of these Terms. By way of example, all of the following will survive termination: any limitations on our liability, any terms regarding ownership or license to intellectual property rights and your Feedback, and terms regarding disputes between us including without limitation the arbitration agreement (if applicable).

7. DISCLAIMER AND LIMITATIONS OF LIABILITY

BECAUSE CERTAIN STATES/JURISDICTIONS, DO NOT ALLOW SOME OR ALL OF THE INDEMNIFICATION OBLIGATIONS, EXCLUSIONS, OR LIMITATIONS OF LIABILITY SET FORTH BELOW, SUCH AS EXCLUSIONS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE TERMS AND CONDITIONS IN THIS SECTION 7 MAY NOT APPLY TO YOU.

Third Party Disputes

If there is a dispute between participants on this site or Services, or between users and any third party (including providers of products made available through promotions and giveaways or surf park operators), you agree that Surfline is under no obligation to become involved. In the event that you have a dispute with one or more other users or any third party, you release Surfline, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

Disclaimer of Warranties

Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content, including Outputs, at your own risk. We aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. Without limiting the foregoing, you acknowledge and agree that some or all Outputs may be inaccurate or incomplete and that we shall not have any liability or responsibility for any Output. It is your responsibility to review and validate any Output. Nothing provided through the Services, including any Outputs, is a substitute for your independent expertise and judgment. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it

SURFLINE AND ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (SURFLINE AND ALL SUCH PARTIES TOGETHER, THE “SURFLINE PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES, INCLUDING WITHOUT LIMITATION REGARDING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND THE SURFLINE PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES OR ANY CLAIMS, ACTIONS, SUITS PROCEDURES, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF, OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN, THE SERVICES. THE SURFLINE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY ADVERTISED PRODUCTS AND SERVICES OR PRODUCTS FEATURED IN THE CONTENT. THE SERVICES AND CONTENT ARE PROVIDED BY SURFLINE (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE SURFLINE PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO SURFLINE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL.

Indemnity

You agree to indemnify and hold the Surfline Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Consumers Residing in the UK or EEA

IF YOU ARE A CONSUMER RESIDING IN THE UK OR EEA, YOU HAVE LEGAL REMEDIES IF WE CAUSE YOU LOSS BY OUR BREACH OR NON-PERFORMANCE OF OUR LEGAL OBLIGATIONS, OR BY OUR NEGLIGENCE, AND WE WILL BE RESPONSIBLE FOR LOSSES YOU SUFFER IN ACCORDANCE WITH THOSE STATUTORY REMEDIES, UNLESS THE LOSS IS:

  • Unexpected. It was not obvious that it would happen and nothing you said to us before we accepted your order meant we should have expected it (so, in the law, the loss was unforeseeable).

  • Caused by a delaying event outside our control. If a loss is caused by a delaying event outside our control and not otherwise contemplated under these Terms, we will try to contact you as soon as possible to let you know and do what we can to reduce the delay. As long as we do this, we won't compensate you for any loss associated with such delay.

  • Avoidable. Something you could have avoided by taking reasonable action. For example, damage to your own digital content or device, which was caused by digital content we supplied and which you could have avoided by following our advice to apply a free update or by correctly following the installation instructions or having the minimum system requirements advised by us.

  • A business loss. Our Services are not permitted to be used for any commercial purposes, including the purposes of your trade, craft or profession.

8. RESOLVING DISPUTES WITH US

For users in the EEA and UK, disputes may be resolved as follows:

Resolving disputes without going to court: Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without parties having to go to court. If you are a user based in the EEA and you are not happy with how Surfline handles any complaint, you are entitled to submit the dispute for online resolution to the European Commission Online Dispute Resolution platform: here.

You can go to court: These Terms are governed by and will be construed under the laws of the country where you reside. In the event you bring legal proceedings in respect of these Terms in the courts of the country in which you reside, you will benefit from any mandatory provisions of the law of the jurisdiction in which you are a resident. For example, if you live in England, you can bring claims against us in the English courts.

FOR USERS IN ALL OTHER JURISDICTIONS, PLEASE REFER BELOW TO ANNEX A BINDING ARBITRATION AND CLASS ACTION WAIVERS, WHICH SHALL BE BINDING WITH RESPECT TO THE RESOLUTION OF DISPUTES UNDER THESE TERMS.

9. ABOUT THESE TERMS

Transfer

Surfline may transfer our contract with you, so that another entity is responsible for supplying the Services or similar services. We'll try to ensure that the transfer won't materially affect your rights under the contract and will tell you in writing if such a transfer is expected to materially affect your rights. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.

Changes

Surfline may, from time to time, change these Terms. We reserve the right to change the Terms at any time by posting modified Terms on our website(s) and our mobile application(s) and changing the “Last Updated” date above, so you know when the new terms took effect. Such revisions shall be effective immediately; provided however, for users with existing Surfline Accounts, material revisions shall, unless otherwise stated, be effective one month following notice to you through electronic means, for example via email to the email address associated with your Surfline Account or by displaying a notice on our website(s) and mobile application(s).

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

Other Important Terms

The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. Even if we delay in enforcing any rights under these Terms, we can still enforce it later. We might not immediately chase you for not doing something (like paying) or for doing something you're not allowed to, but that doesn’t mean we can't do it later. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Surfline agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Surfline, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Surfline, and you do not have any authority of any kind to bind Surfline in any respect whatsoever.

Except as expressly set forth in the section above regarding the Apple Application and in Annex A, you and Surfline agree there are no third party beneficiaries intended under these Terms.

ANNEX A

BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.

Both you and Surfline acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Surfline’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

1. Informal Dispute Resolution Procedure

If a Dispute (as defined below) arises between you and Surfline, Surfline is committed to working with you to try to reach a reasonable resolution. For any such Dispute, both parties acknowledge and agree that they will first use good faith efforts to settle the Dispute informally and directly through consultation and negotiations before initiating any formal dispute resolution proceeding in arbitration or otherwise. Such informal resolution requires first sending a written description of the dispute to the other party. For any Dispute you initiate, you agree to send the written description of the Dispute along with the email address utilized as your username and profile associated with your Surfline, if applicable, to Surfline, 2261 Market Street STE 10852, San Francisco, CA 94114 and [email protected]. The written description must be on an individual basis and provide, at minimum, the following information: your name and contact information; a description of the nature or basis of the claim or dispute; the specific relief sought; and proof of your relationship with Surfline. Unless the parties agree to extend the period for informal resolution, if the Dispute is not resolved within sixty (60) days after receipt of the written description of the Dispute, you and Surfline agree to the further Dispute resolution provisions below.

The informal dispute resolution procedure in this Annex A, Section 1 is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution procedure.

2. Mutual Arbitration Agreement

If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes, (except as provided herein) subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to [email protected]. If you have a Surfline Account, any demand filed by you initiating arbitration must include the email address you used to log onto Surfline, as well as any profile associated with that account that is controlled by you.

You and Surfline agree that the terms of this Annex A (collectively the “Arbitration Agreement”) govern any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, the Terms of Use, or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (each a “Dispute” and collectively “Disputes”).

The parties further agree that the determination of the scope, enforceability, or applicability of this Arbitration Agreement, including, but not limited to any claim that all or any part thereof of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment) will be resolved exclusively by final and binding arbitration in accordance with this Annex A.

The only matters excluded from this Arbitration Agreement are the litigation of certain intellectual property and small court claims, as provided below.

This Arbitration Agreement supersedes any prior Arbitration Agreement entered by the parties and is applicable to unfiled claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth herein.

The parties agree that this Arbitration Agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.

Notwithstanding the parties’ decision to resolve all Disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.

3. Class Arbitration and Collective Relief Waiver

YOU AND SURFLINE ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN SECTION 6 BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR COLLECTIVE ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF SURFLINE PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

With the exception of this Section 3 and Sections 5 and 6 below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, this Section 3 and Section 5 and 6 below are found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Surfline shall be entitled to arbitrate their Dispute.

4. Arbitration Rules

The arbitration will be administered by NAM and conducted before a single arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Supplemental Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at [email protected].

5. Arbitration Location and Procedure

For all U.S. residents, the arbitration shall be held (i) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than 100 miles from your home or place of business; or (ii) at another location you and we agree upon. For non-U.S. residents, the arbitration shall be held in Los Angeles, California (unless otherwise agreed by the parties). The arbitrator shall apply California law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.

If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Surfline submit to the arbitrator, unless the arbitrator determines that a hearing is necessary, or the parties agree otherwise. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Surfline (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

6. Mass Arbitration

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against Surfline (a “Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 10 demands per batch (to the extent there are fewer than 10 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each demand within the batch (the same arbitrator may preside over multiple demands in a batch if the relevant claimants and Surfline so agree); (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 10 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Surfline and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (vi) that the staged process of batched proceedings, with each set including 10 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved; and (vii) to make good faith efforts to resolve each batch of demands within 180-days, failing which any of the claimants or Surfline may cease arbitration and file in a court of competent jurisdiction.

Arbitrator selection for the demands in each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings for each demand within a batch will be conducted.

You agree to cooperate in good faith with Surfline and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of demands. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of demands necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Surfline otherwise consents in writing, Surfline does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 6. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.

The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this Section 6 or the engagement of a mediator in Section 7 is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Surfline shall be entitled to arbitrate any claim that is a part of the Mass Filing.

7. Mediation Following First Batch in a Mass Filing

The results of the first batch of demands will be given to a NAM mediator selected from a group of 5 mediators initially proposed by NAM, with Surfline and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Surfline, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either Surfline or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Surfline nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.

8. Arbitrator’s Decision

The arbitrator’s decision shall be controlled by the terms and conditions of these Terms of Service and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the “Disclaimer and Limitation of Liability” section of these Terms of Use as to the types and the amounts of damages or other relief for which a party may be held liable. No individual arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.

9. Fees

If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Surfline will pay any filing and hearing fees in excess of $250 that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys’ fees) may be imposed upon you consistent with the Arbitrator’s Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in subpart (vi)) provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

10. 30-Day Right to Opt Out

You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out [email protected] with the subject line, “ARBITRATION OPT-OUT.” The notice must be sent within thirty (30) days of (a) these Terms taking effect; or (b) your first use of the Services, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, Surfline also will not be bound by it.

11. Changes

Surfline will provide thirty (30) days’ notice of any material changes to this Arbitration Agreement. Any such changes will go into effect 30 days after Surfline provides notice and will apply to all claims not yet filed regardless of when such claims may have accrued. If Surfline makes changes to this Arbitration Agreement after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes.