Terms and Conditions
Welcome to the Surge Motion. We offer a digital platform that remotely measures, analyzes, and tracks a user’s balance, gait, and other functional movements. We do this through our websites, including, but not limited to, www.surgemotion.bio, www.aspiremotion.com, and their related sites (the “Sites”), one or more mobile applications (the “Applications”), the one or more motion sensing Aspire Sensors (together, the “Services”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as "Content"). The Services are owned and offered by Surge Motion, Inc. and its subsidiaries or affiliates involved in providing and supporting the Services (collectively, “We”, “Us, “Our”, or “Surge Motion”).
By accessing or using the Services, you agree to be bound by these Terms and Conditions (the “Terms”). Surge Motion has the right to accept or reject any applicant for Services, in its sole and complete discretion. If you do not agree to these Terms, please do not use our Services.
Services Content is Not Medical Advice
Surge Motion Inc. does not practice medicine, provide physical therapy, or provide wellness service. Content provided as part of the Services is not medical advice.
Any content accessed through the or offered by the Services is for informational and educational purposes only, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects. You should not rely on anything contained in the Services as a substitute for medical advice, and you should consult a healthcare provider licensed in your state in all matters relating to your health.
The Services may be used to supplement and enhance your medical or healthcare treatment under the guidance and supervision of a qualified healthcare professional licensed in your state. Any medical or healthcare advice provided using the Services is not provided by Surge Motion but rather by the individual medical or healthcare providers with whom you must first establish a physical therapist-patient relationship or a physician-patient relationship.
Unless otherwise expressed to you in writing, nothing in the Services is intended to create a physical therapist-patient relationship, or physician-patient or to replace the services of a licensed, trained, in-person physician, physical therapist, or other health professional or be a substitute for medical advice of a physician or trained health professional licensed in your state.
Using, accessing, and/or browsing the Sites or Applications or providing personal medical history including via the Sites or Applications does not create a physical therapist-patient or physician-patient relationship between you and Surge Motion or any of its employees and/or affiliates.
You agree that you will not make any health or medical related decision based in whole or in part on anything contained in the Services. Do not ignore or delay obtaining professional medical advice because of information accessed through the Services.
DO NOT USE THE SERVICES FOR YOUR MEDICAL EMERGENCY NEEDS NOR YOUR OTHER MEDICAL NEEDS. YOU SHOULD CONSULT A PHYSICIAN LICENSED IN YOUR STATE IN ALL MATTERS RELATING TO YOUR HEALTH.
IF YOU EXPERIENCE A MEDICAL EMERGENCY, PLEASE CALL 9-1-1 IMMEDIATELY.
Reference to any product, recording, event, process, publication, service, or offering of any third party by name, trade name, trademark, service mark, company name, or otherwise, does not constitute or imply the endorsement or recommendation of such by Surge Motion.
Surge Motion is not responsible or liable for any advice, course of treatment, diagnosis or any other information, services or products that you may obtain through the Services.
Using the Services
To use the Services, you must (1) register for an account (the “Account”), (2) be at least 18 years of age and be of legal age in your jurisdiction to form a binding contract or, if you are between the ages of 13 and 18, have your parent or legal guardian create an account on your behalf, (3) accept these Terms, (4) physically located or are a resident of the State you have chosen as your current residency when creating your Account, (5) meet certain physical and medical criteria.
You acknowledge that your ability to access and use the Services is conditioned upon the truthfulness of the information you provide regarding your age, residence and contact information. You agree not to open more than one account, impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You also agree to notify us promptly at support@surgemotion.bio of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to our Sites.
You acknowledge that as part of the Services, you will engage in physical exercises and use exercise equipment and, as with all such physical activity, there is an inherent risk of injury or complication to any existing conditions. By using the Services, you are voluntarily participating in these physical activities and knowingly and freely assuming all risks of injury, loss, or damage on account of these activities. While the Services are developed in accordance with accepted clinical practice guidelines, results are not guaranteed. Prior to starting any physical activities, we strongly advise you to discuss the purposes and risks associated with all physical activities with a qualified healthcare professional licensed in your state. If you have a pre-existing medical condition that may impact your ability to use the Services, you agree to seek medical advice from a qualified professional before using the Services.
Your Privacy
Surge Motion will only use your information as permitted by our Privacy Notice, and applicable laws,
You are solely and fully responsible for maintaining the confidentiality of the login credentials (such as username and password or other means of authentication) of your Account and for all activities that occur under your Account. You agree not to disclose your login credentials to any third party. If you forget your password, you can request through the appropriate channel to have a new password issued. Your Account is at risk if you let someone else use it inappropriately. We reserve the right to suspend or terminate your Account if we determine that you or anyone using your Account violates these Terms. If you failed to properly maintain your login credentials, Surge Motion will not be liable for any loss that you incur as a result of someone else accessing and using your Account, either with or without your knowledge.
Note that terminating your account may cause the loss and/or unavailability of content, features, or capacity with regard to your account. Surge Motion shall not be liable in any way for such unavailability and/or loss.
Using Or Accessing the Services Through a Third-Party
In some cases, you may be able to access the Services via certain third-party service providers (“Third Party Service Providers”). Where accessing the Services via such Third Party Service Providers you agree and acknowledge that the Third Party Service Providers are paying for the Services you receive from Surge Motion and your access to the Services (including, without limitation, the length of your access to the Services) shall be subject to the terms agreed between Surge Motion and the applicable Third Party Service Provider, and you acknowledge and agree that Surge Motion may share information pertaining to you or your use of the Services with such Third Party Service Provider. You further agree and acknowledge that by participating in and using the Surge Motion Services through a Third Party Service Provider you may be foregoing discounts or insurance coverage that may be available to you via alternative care options. You understand that following the period during which the Third Party Service Provider provided you with access to the Surge Motion Services, you shall be solely liable for any payments in connection with your use of the Services.
Acceptable Use
You agree not to access or use the Services in an unlawful way or for an unlawful or illegitimate purpose or in any manner that contravenes these terms. You shall not post, use, store or transmit (1) a message or information under a false name; (2) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening or hateful to any person; or (3) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. You shall not attempt to circumvent, damage, disable, disrupt, breach, otherwise interfere with the operation of the Services by any method, including through use of viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming. You shall not use the Services in any manner that could damage, disable or impair the Services. You shall not attempt to gain unauthorized access to any user accounts or computer systems or networks, through hacking, password mining or any other means. You shall not use any robot, scraper or other means to access the Services for any purpose. You shall not attempt to decipher, decompile, disassemble, or reverse engineer any of the code or software used to provide the Services. You should not assist or permit any third party to do anything prohibited by these Terms. Neither Surge Motion nor its affiliates are under any obligation to respond to messages posted on the Services. You are solely responsible for the information or material you post on the Services.
User Generated Content
The Services may allow you to upload, post, publish and make available through it, your own information such as text, images, text material, photos, videos and any other communications and proprietary materials (the “User Generated Content”). The User Generated Content may be hosted, shared, and/or published as part of the Services and may be visible to and accessed by other users of the Services. We urge you to be aware and conscious of your privacy with respect to the User Generated Content that you choose to upload. Please ensure that when you use the Services, you respect the proprietary rights including any intellectual property and privacy rights of third parties who have any rights with respect to the User Generated Content you upload to the Services. Surge Motion will not bear any liability for any loss, damage, cost or expense that you may suffer or incur as a result of or in connection with uploading any User Generated Content.
As long as your User Generated Content is subject to the applicable copyright law, such User Generated Content shall remain at all times, and to the extent permitted by law, your sole and exclusive property. You hereby further acknowledge and agree that the User Generated Content is non-confidential and may be viewed by certain third parties.
You understand and agree that you are solely responsible for your User Generated Content and the consequences of posting or publishing such User Generated Content, on the Services, in any way. You hereby warrant that your User Generated Content is true, current, accurate and complete.
You represent and warrant that you are the rightful owner of the User Generated Content you upload to the Services or that you have (and will continue to have) all the necessary licenses, rights, consents, and permissions from the rightful owners of such User Generated Content and that such User Generated Content does not infringe any third party's intellectual property rights or other rights (including without limitation, any privacy rights, publicity rights, copyrights, or any other intellectual property rights). IT IS THE USER’S RESPONSIBILITY TO OBTAIN ANY AND ALL CONSENTS REQUIRED UNDER ANY APPLICABLE LAWS, REGARDING THE POSTING OF ANY PERSONAL INFORMATION OF OTHERS WHICH IS PART OF THE USER GENERATED CONTENT, AND TO ADHERE TO ANY APPLICABLE STATE, PROVINCIAL, TERRITORIAL AND FEDERAL LAWS REGARDING SUCH INFORMATION.
You expressly agree that the User Generated Content that you post or upload will not include (1) content or information that is confidential or that is not in the public domain; (2) any spam, unsolicited promotions, advertising, contests or raffles; (3) content which is, inter alia, unlawful, defamatory, libelous, harassing, offensive, indecent, pornographic, abusive, fraudulent, threatening or vulgar; (4) content that unlawfully discriminates on the basis of race, origin, ethnicity, nationality, religion, gender, occupation, sexual orientation, illness, physical or mental disability, faith, political view or socio-economical class; (5) content that encourages criminal behavior or conduct that would constitute a criminal offense under any law, or could give rise to civil liability or other lawsuit; (6) content that poses a risk to a person’s safety, security or health; (7) content that violates any applicable federal, state or local law or regulation; or (8) content that impersonates another individual or entity. The above examples of unlawful and prohibited User Generated Content do not constitute an exhaustive list.
Although Surge Motion has no obligation to screen, edit or monitor any of the User Generated Content, Surge Motion explicitly reserves the right, at its sole discretion, to remove or edit, without giving any prior notice, any User Generated Content available on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Generated Content you post or store on the Services at your sole expense.
When you upload, post, publish or make available any User Generated Content on the Services, you grant to (1) Surge Motion an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, fully sub-licensable and worldwide license, to use, reproduce, distribute, transmit, create derivative works of, display, copy, make available to other users and the public and perform that User Generated Content, along with the name that you submit in connection with such User Generated Content, in connection with the Services, whether through the internet, mobile devices or otherwise, in any media formats and through any media channels known today and developed in the future; and (2) unless you otherwise restrict through your Account, each user of the Services a non-exclusive and royalty-free license to access your User Generated Content through the Services and to use such User Generated Content for personal and non-commercial purposes. Surge Motion may publish and use any User Generated Content without the user’s prior consent. You hereby agree and understand that you will not be entitled to prevent any transfer of User Generated Content to any third party. Surge Motion shall not bear any liability for any use by any third party of the User Generated Content. In addition, you hereby explicitly waive any moral right and other intellectual property right you may have in and to the User Generated Content and forever waive and agree not to claim or assert any entitlement or interest to any and all moral rights or other intellectual property rights in any of the User Generated Content.
Surge Motion takes no responsibility and assumes no liability for any User Generated Content upload, posted, published and made available by you or any third party in the service, or for any loss or damage thereto, nor is Surge Motion liable for any mistakes, defamation, libel, falsehoods, obscenities or pornography you or any other third party may encounter.
Intellectual Property
All of the content, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) available on or through the Services is the property of Surge Motion or its licensors and is protected by United States and international copyright, trademark, patent, trade secret and other intellectual property law.
You agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate the content received through the Service to any third party. All software and accompanying documentation made available for download from the Service is the copyrighted work of Surge Motion or its licensors. Any copy made of information obtained through the Services must include all applicable copyright notices.
Subject to the terms of this Agreement, Surge Motion hereby grants you a limited, revocable, non-transferable and non-exclusive license to use the software, network facilities, platform, content and documentation on and in the Services to the extent, and only to the extent, necessary to access and use the Services.
The license granted herein does not permit you to, and you agree not to: (1) modify, translate, reverse engineer, disassemble, decompile or create derivative works of the Service or allow a third party, whether directly or indirectly (including, but not limited to the direct or indirect use of wizards, agents, bots, or other utilities), to modify, translate, reverse engineer, disassemble, decompile or create derivative works of the Services; or (2) transfer, distribute, sell, lease, rent, disclose or provide access to the Services to any third party or use the Services to provide service bureau, time sharing or other services to third parties.
Physical Hardware
You agree that any physical hardware provided to you as part of the Services, such as a tablet, a phone, or motion sensors, are, and will remain, the property of Surge Motion. If you cease receiving Services, or upon our request, you are responsible for returning all physical equipment provided by us to us. You are responsible for maintaining the security of any devices. If you lose any physical hardware we provided to you, you are fully responsible for any such lost device, including loss, breach, or misuse of any data contained on or within the hardware.
Content And Third-Party Service Accessed through the Services
You may choose to allow a third-party service which Surge Motion may offer as an integration to the Services to retrieve, provide, modify or otherwise use health and other information in your Account or otherwise share your information with the third-party service provider of your choice. Once you enable such a specific third-party to access your account, the service provider may continue to access your account until you affirmatively disable access. Third-party service providers include both health care providers and other entities. It is your sole responsibility to review and approve each such third-party service before sharing your information through or otherwise accessing it. USE OF THESE SERVICES AND RELIANCE ON THIS CONTENT IS SOLELY AT YOUR OWN RISK. SURGE MOTION MAY NOT BE HELD LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF ANY THIRD-PARTY SERVICE OR CONTENT.
Disclaimers
ACCESS TO THE SERVICES AND THE INFORMATION CONTAINED THEREIN IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, S URGE MOTION DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, SURGE MOTION DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND YOUR RELIANCE UPON ANY OF ITS CONTENTS IS AT YOUR SOLE RISK.
YOU SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE TO THE SERVICES OR ANY COMPUTER SYSTEM, ANY LOSS OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION ON THE SERVICES CAUSED BY YOU OR ANY PERSON USING YOUR USERNAME OR PASSWORD. SURGE MOTION CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET, OR FOR YOUR MISUSE OF ANY PROTECTED HEALTH INFORMATION, ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICES.
Limitations of Liability
IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY OF ITS CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES. UNDER NO CIRCUMSTANCES SHALL SURGE MOTION , ANY SURGE MOTION LICENSOR OR SUPPLIER, OR ANY THIRD PARTY WHO PROMOTES THE SERVICES OR PROVIDES YOU WITH A LINK TO THE SERVICES BE LIABLE IN ANY WAY FOR YOUR USE OF THE SERVICES OR ANY OF ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, ANY INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT.
UNDER NO CIRCUMSTANCES SHALL SURGE MOTION, ITS LICENSORS OR SUPPLIERS OF NON-MEDICAL/ PHYSICAL HEALTHCARE SERVICES OR ANY THIRD PARTY WHO PROMOTES THE SERVICES OR PROVIDES YOU WITH A LINK TO THE SERVICES, BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF SURGE MOTION OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your Indemnity
You agree to indemnify, defend, and hold harmless Surge Motion and its respective employees, directors, officers, subsidiaries, affiliates, partners, contractors, subcontractors and agents of each, against any and all claims, damages, or costs or expenses (including reasonable attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your computer, mobile device or login credentials; (b) any claim, loss or damage experienced from your use or attempted use of (or inability to use) the Services; (c) your violation of any law or regulation; (d) your infringement of any right of any third party; (d) information you provide to or use in connection with the Service violating third party intellectual, privacy or other rights and (e) any other matter for which you are responsible hereunder or under law. You agree that your use of the Services shall be in compliance with all applicable laws, regulations and guidelines.
Links
Any link (including a hyperlink, button or referral device of any kind) used in the Services is provided for your use and convenience. The appearance of a link does not constitute an endorsement, recommendation or certification by Surge Motion, nor should the presence of a link in any way be construed as a suggestion that any third-party website has any relationship to Surge Motion. Surge Motion does not endorse the content on any third-party websites. Surge Motion is not responsible for the content of linked third-party websites or third-party advertisements, and does not make any representations regarding its content or accuracy. Surge Motion does not knowingly link to websites that may infringe on valid and existing trademarks, service marks, copyrights or patents. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such websites.
Termination
Surge Motion may suspend or terminate your access to the Services at any time, for any reason or for no reason at all. Surge Motion has the right (but not the obligation) to refuse to provide access to the Services to any person, agency or organization at any time, for any reason or for no reason at all, in our sole discretion. Surge Motion reserves the right to change, suspend, or discontinue all or part of the Services, temporarily or permanently, without prior notice.
Dispute Resolution
Any dispute or claim relating in any way to your use of the Surge Motion Services will be resolved by binding confidential arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to these Terms.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must interpret these Terms as a court would.
It is agreed that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, Surge Motion and you each waive any right to a jury trial. It is further agreed that you may not bring suit in court to enjoin infringement or other misuse of intellectual property rights.
This Dispute Resolution section survives any termination of your Account or the Services.
General
These Terms are governed by the laws of the State of California, without regard to any conflict of laws rules or principles. You agree to submit to the venue and jurisdiction of the California courts in the cases that arbitration is not successful or is assigned or appealed to a civil court.
Surge Motion’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. Notices required to be given to you by Surge Motion may be delivered by electronic mail to the address provided during the creation of your Account.
These Terms constitute the entire Agreement between Surge Motion and yourself regarding the Services, and supersede and replace any prior agreements you and Surge Motion might have regarding the Services. Surge Motion may revise these Terms from time to time without notice to you. By continuing to access or use our Services after those revisions become effective, you agree to be bound by the revised terms. We encourage you to read the stems periodically.
Please send any questions or report any violations of these Terms to legal@surgemotion.bio
Terns last updated on and effective on July 11, 2024.