US Terms and Conditions
Last updated: November, 20th 2023
Sunday offers to improve the experience of customers who frequent your Establishments (the “Users”) by providing services to you (“Sunday Services“) and by allowing them to benefit from all or part of the Solution.
Section 1 – Definitions*
- “Anomaly” : any non-compliance of the Solution with the Documentation.
- “Beneficiary Companies” : a group of companies, which may belong to the same group or to the same franchise network, which benefit from Sunday Services, and for which you have obtained all the appropriate authorizations to subscribe to this Agreement.
- “Back-office Platform” : The Sunday interface (consisting of a website) in Software as a Service (“SaaS”) mode , which we make available to you, and which, associated with the QR Code Application, allows you to access Sunday Services.
- “Merchant Account” : an account allowing you to control the use of the Sunday Services for one or more of your Establishments that includes the possibility of giving different access levels to different people involved in your Establishment(s), according to your needs and the rights you wish to give them.
- “Data” » : all data that you provide or make available to us in connection with the use of Sunday Services.
- “Data Protection Legislation”: the European Union’s General Data Protection Regulation (2016/679), (“GDPR”), the California Consumer Privacy Act, and the California Privacy Rights Act and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party. Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organizational measures: as deﬁned in the GDPR.
- “Digital Fee”: the fee paid by the Merchant or the Users (as configured by the Merchant) for each transaction completed by the Users using a QR Code Application.
- “Documentation” : the documentation we provide to you setting out the terms and conditions of use of Sunday Services.
- “Effective Date”:the effective date of the Agreement as stated in the Purchase Order. When no Purchase Order is needed, as per clause 3.2, the Effective Date shall be the date when the relevant services or products are purchased by the Merchant.
- “Establishment(s)” : any type of venue open to the public in which you provide to the Users food and/or beverage services (e.g. bar, festival, restaurant, food court, stadium, and similar).
- “Fees”: means all amounts owed by Merchant to Sunday for the provision of the Sunday Services.
- “Order” : an order placed by a User in one of your Establishment(s).
- “Payment Link”: a Sunday service that allows Merchants to send a payment link to their customers by electronic means of communication to be used to purchase catering and hospitality services.
- “Payment Service Provider”: a secure payment service provider that can handle the processing of transactions.
- “Personal Data” : data directly or indirectly related to a natural person (e.g., identifier, name, identification number, location data, online identifier) that may be shared between us in the course of this Agreement.
- “Pre-Requirements” : technical prerequisites necessary for the installation of our Solution and Sunday Services.
- “Purchase Order”: the order form document executed and entered into between you and us that is incorporated herein.
- “QR Code Application”: Sunday payment solution accessible through scanning a QR Code.
- “Solution”: the Sunday Services, the QR Code Application, and all other products and services Sunday provides to Users and to the Merchant.
* For the sake of clarity, additional definitions appear in the body of the Terms and Conditions, when they concern a particular Section. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Purchase Order.
Section 2 – What we offer
2.1. Sunday will provide the Sunday Services to you in accordance with and subject to the terms of the applicable Purchase Order and of these Terms. Sunday Services are offered on a non-exclusive basis.
2.2. With the exception of maintenance periods, the Sunday Services are accessible 24 hours a day, 7 days a week. In case of malfunction or interruption of the Sunday Services or of Anomalies and upon notification sent by email to email@example.com, we will make our best efforts to restore the Sunday Services as soon as possible. For more details, please refer to our Documentation.
Section 3 – How to Subscribe
3.1. By signing the relevant Purchase Order to use Sunday Services, you agree to our Terms. Certain additional services may be subject to special terms and conditions, which shall form an inseparable whole with these Terms.
3.2. The Merchant understands that part of the Sunday Solution, including, but not limited to the Payment Link product, may not be subject to a Purchase Order and will be purchased directly on the Back-office platform. Relevant terms and conditions for such products will be available on the Back-office platform to the Merchant before any purchase is made.
3.3. To use Sunday Services, you must:
- accept and comply with the Agreement (including the Documentation),
- provide all necessary documents required by us, which may include (but not limited to) business license, personal identification, tax identification, alcohol and food license(s) (where relevant), banking documentation, and all information required for the accurate calculation and preparation of invoices and settlement statements by us. You are solely responsible for providing us with, and maintaining, accurate bank account information.
- comply with the Pre-Requirements to ensure the technical compatibility of your equipment with our Solution. In the event of a change in your POS, you must inform us at least one (1) month in advance so that we can make the necessary technical adjustments, if possible. However, we reserve the right to terminate the Agreement in the event of a change of POS service or a change that is incompatible with the Pre-Requirements in accordance with Section 5.
Section 4 – How to use Sunday Services
4.1. Your access
You must create a Merchant Account and submit all the updated information about your activity (Establishment(s), menus and prices, Beneficiary Companies, etc.). When you subscribe, we will send you a login. A temporary password is also sent to you. It is up to you to change it, if you wish, according to a minimum level of complexity required to ensure an optimal security. In order to ensure an appropriate level of security and to preserve the integrity of the Solution, the identifier and the password are personal to you and must not be communicated to anyone. In case of loss of a login, you should contact us as soon as possible so that we can provide you with new identifiers.
You are in charge of determining which users within your organization will have access to all or part of the Merchant Account. Specific access to the Merchant Account will be created for them. You must ensure that these users comply with our Terms.
We will not be liable for any damages that may result from your failure to comply with this section.
4.2. Use of Sunday Services
4.2.1. You must keep up to date the information relating to your business and your Establishment(s). You must also provide and update prices, menus, available products and allergens in your products available to Users through the Solution.
4.2.2. We will inform you of each Order placed via QR Code Application. You must fulfill the Orders in accordance with the rules, including sanitary rules, that apply in your jurisdiction.
4.2.3. Users may pay for Orders, in whole or in part, via our QR Code Application, at the choice of the Users, by bank card or restaurant check. You are informed of each payment made via QR Code Application.
4.2.4. Save for the Digital Fee mentioned in section 6.4.below, the Merchant may not impose any surcharges or other fees to Users for the use of the Sunday Solution.
Section 5 – Duration and Termination
5.1. The term of the Agreement will begin on the Effective Date and shall continue until all Purchase Orders have expired or been terminated.
5.2. The Agreement may be terminated by either Party if the other Party breaches any material term of the Agreement and such breach remains uncured for five (5) days following written notice from the non-breaching Party. In such an event, without prejudice to the non-breaching Party’s other rights and remedies, the latter may terminate the Agreement effective immediately without further liability or obligation to the breaching Party. A material breach of the Agreement shall include, but shall not be limited to, the Merchant changing its POS service to one that is not compatible with the Solution, in violation of the Pre Requirements.
5.3. Termination shall be notified in accordance with the terms of the Purchase Order.
5.4. In the event of termination of the Agreement, for any reason whatsoever, it is agreed that:
- You will no longer be able to use the Sunday Services or the Solution and will cease to use all associated communication media;
- Sunday will collect all accrued charges and fees in accordance with the Purchase Order, including on any payment made within your Establishment(s), via the QR Code Application, between the notification of the termination of Sunday Services and their effective suspension; and
- Any funds due to you for your services through the appointed Payment Service Provider will be settled under the normal settlement terms, subject to any deductions agreed.
- Those sections that by their nature should logically survive shall remain in force after any termination of this Agreement (including, but not limited to, the Confidentiality and Property sections).
Section 6 – Fees
6.1. The Purchase Order shall define all applicable Fees and payment terms. These financial conditions may change from time to time, subject to a thirty (30) days’ notice to you.
6.2. We may perform additional services for you. These services are carried out on the basis of a prior fee quote and are subject to additional invoicing.
6.3. In case of question or disagreement concerning invoicing, you can contact us at any time by email at firstname.lastname@example.org. Complaints must be made within thirty (30) days of the date of receipt of the invoice. Otherwise, we will consider the invoice has your full agreement.
6.4. We retain the right to charge Users fee(s) or any other amounts for the use of the Sunday Services.
6.5. The following terms shall apply to the Digital Fee:
- Unless otherwise agreed between the Parties, the amount of the Digital Fee will be at least 1% of the total transaction amount for each User transaction using the QR Code Application.
- The Merchant can decide whether to charge the Users for all or part of the Digital Fee. The Merchant understands that it will be responsible for paying to Sunday any Digital Fee or any part of the Digital Fee not paid by the Users.
- The Merchant shall not present any Digital Fee as a convenience fee, surcharge or other fee related to payment processing such as a merchant assessed fee.
- When the Merchant decides to charge the Users for all or part of the Digital Fee, the Merchant shall make a means of card payment that does not require use of the QR Code Application or payment of Digital Fee available to its customers.
- For the avoidance of doubt, unless otherwise agreed in the Purchase Order, Sunday will be in receipt of Digital Fees.
Section 7 – Property
7.1. Property of Sunday
7.1.1. We hold all rights, in particular all Intellectual Property Rights and authorizations relating to our website, brands, logos, domain names and other distinctive signs, to Sunday Se
rvices, to the Solution (including the software and hardware infrastructure implemented or developed by our teams, namely our QR Code Application) and to its documentation, and more generally to the content that we may provide to you in the course of the Agreement. We grant you only a personal, non-assignable and non-transferable right to access and use the Solution and Sunday Services, for the entire duration of the Agreement. This license is reserved solely for your use of the Solution and Sunday Services, to the exclusion of all others. You are also authorized to reproduce our trademarks, solely in connection with the use of the Solution with the Users. Your subscription to Sunday Services does not imply any transfer or assignment of these rights, of any kind, for any reason whatsoever. Any removal or modification of the proprietary notices within the Solution and/or Sunday Services is prohibited. Any unauthorized use of any of the elements listed in this section shall be considered as constituting an infringement and shall be prosecuted in accordance with the legal provisions in this regard.
7.1.2. We guarantee to you that in the event of an action brought against you on the grounds that our trademarks, Sunday Services, Solutions and programs made available to you constitute an infringement of the intellectual property rights of third parties we will indemnify you in the event of a final judgment resulting in an infringement. This section defines Sunday’s sole liability and the sole and exclusive remedy available to you in the event of an action for infringement of intellectual property rights.
7.1.3. We make no other warranties. In particular, we do not warrant (i) that Sunday Services will be error-free and/or available on an uninterrupted basis or that Sunday will be able to correct all errors in Sunday Services, (ii) that Sunday Services will work in combination with your content or applications or with any other hardware, software, systems, services or data not provided by Sunday.
7.2. Your property rights
7.2.1. You are the owner of the Data and of the existing rights on the information relating to your activity that you communicate as well as the materials that you produce within the framework of the use of Sunday Services. In particular, you are the sole owner of the existing rights on your menu, your logos and brands, your graphic design and/or the photographs and content that you communicate to us.
7.2.2. You grant us a non-exclusive right to reproduce and represent your trademarks, logos, designs, trade names, company names and more generally any other rights attached to the content that you communicate via the Solution, in order to integrate them into the Solution and Sunday Services. You authorize us to reproduce and represent your trademarks, logos, designs, trade names, company names, and more generally any other rights attached as a reference, including in the context of marketing operations, on any medium and by any process of your choice, such as presentations, websites, brochures, etc., to any third party, regardless of the method of communication.
7.2.3. You warrant that you have all the rights and authorizations required to provide your services and/or to subscribe to Sunday Services, use our Solution and upload your content. You indemnify us, in particular, against any action, request or claim that would be made by any third party to whom your trademarks, logos, menus, and more generally, all content that you can communicate or upload to the Solution, would infringe. You also guarantee us against all damages resulting from the content that you may upload to the Solution. You agree to indemnify Sunday and to bear all defense and conviction costs, if any.
7.2.4. In order (i) to allow the functioning of the Solution and Sunday Services, (ii) to allow you to follow in real time the payment of Orders by Users in your Establishment(s), (iii) to provide you with statistical data in order to improve the management of Users and (iv) to improve Sunday Services and our Solution, you expressly authorize us to access your POS and your aggregators/middleware and to collect information relating to all the transactions carried out in your Establishment(s).
Section 8 – Liability
8.1. Each of the Parties is liable to the other for the performance of its obligations under these Terms and consequently undertakes to compensate the other Party for any foreseeable damage suffered as a direct result of any non-performance, partial performance or improper performance of its obligations.
8.2. In particular, in the event of either Party’s failure to fulfill its obligations, each Party will have the possibility to claim compensation for the direct and proven damage that such Party has suffered, excluding any indirect damage and in particular commercial damage, damage to the Party’s image, loss of opportunity, profits and earnings, etc. We shall not be liable, in any manner whatsoever or for any reason whatsoever, in the event of a breach by you, one of the Beneficiary Companies or one of your Establishments of these Terms and, in particular, in the event of non-compliant use of the Solution and/or the Sunday Services and/or the materials and content that may be made available to you. In any event, if Sunday’s liability were to be established and incurred, it would be expressly limited to the total of the amounts, excluding taxes, paid by Merchant in the twelve (12) months preceding the date on which the claim was made, In the Establishment(s) concerned.
8.3. You are solely responsible:
- for complying with these Terms, as well as with any special conditions, additional terms and the Documentation,
- for updating the Data that you communicate to us, whether they relate to your activity, to that of your Establishment(s) or to the Beneficiary Companies,
- for obtaining all the appropriate authorizations to carry out your activity and allow the Beneficiary Companies or your Establishment(s) to benefit from the Solution and the Sunday Services,
- in the event of identity theft, fraud, unauthorized use of your Merchant Account, or in the event of misappropriation by a third party of the data in said account to use the Solution, as a consequence of any breach by you of the Terms,
- for fulfilling Orders placed by the Users via the QR Code Application. Once you accept an Order from of a Sunday User, you are solely responsible for the conditions under which you provide your services to Users (including, in particular, updating of your menus, the availability of products, the quality of the products and services that you offer, the progress of the Order placement, the display of the allergens for your products),
- for all content that you may include in the Solution, including links to third-party websites to which you may wish to refer for the presentation of your business. You are responsible in this respect, both to Sunday and to any third party,
- where applicable, for complying with the requirements imposed by our Payment Service Provider,
- for all tax and social security consequences resulting from the use of the Solution and Sunday Services, and the provision of your services with respect to any third party and any administrative or public authority.
- for complying with all payment network rules and Applicable Laws in connection with your use of the Sunday Services.
As such, you agree to hold Sunday harmless from any dispute, challenge, damage or injury that may arise from your failure to comply with this section.
8.4. Except as expressly stated in this Agreement, all terms, conditions, representations, and warranties (whether implied by statute, course of conduct, or otherwise) are hereby excluded to the fullest extent permitted by law with respect to Sunday Services.
8.5. Finally, the Solution implies an Internet connection within your Establishment(s). You are informed and aware of the hazards of the Internet. We shall not be held responsible for the consequences of any Internet connection problem.
As such, you agree to hold Sunday harmless from any dispute, challenge, damage or injury that may arise from your inability to maintain a connection to the Internet during the term of this Agreement.
Section 9 – Personal Data
You and we undertake that the processing of Personal Data carried out in the context of our relationship shall comply with the applicable Data Protection Regulations. The Parties undertake to implement all appropriate technical and organizational measures so that the processing of Personal Data meets the requirements of the Data Protection Regulations and guarantees the protection of the data subject’s rights. In this respect, each Party will communicate to the other all documents and personal data policies governing its activity.
Section 10 – Confidentiality
10.1. The following in particular shall be considered confidential: information relating to the Solution, Sunday Services, your services, know-how, commercial, industrial or organizational strategy, prospects, financial data and any information contained in documents marked “confidential” or whose confidential nature was indicated in writing at the time of their communication or which are confidential in nature (the “Confidential Information“). Each of the Parties agrees, both during the performance of the Terms and for a period of five (5) years after its expiration for any reason whatsoever, to keep the Confidential Information secret.
Consequently, each Party undertakes to the other during this period to:
- to communicate the Agreement only to those members of its staff who need to know about it for the exclusive purposes of providing or receiving, as applicable, the services set out in this Agreement. In this respect, each party shall ensure that the members of its staff, their representatives and their external service providers comply with this section;
- take the measures it takes with respect to its own confidential information to prevent its communication or disclosure to third parties.
10.2. This confidentiality obligation shall not apply to information that should be considered Confidential Information, but which the relevant Party can demonstrate:
- It was already in its possession, and/or in possession of its staff, representatives, agents or service providers on the day of their disclosure by the other Party without the latter being bound by an obligation of confidentiality;
- It was already in the public domain on the day of its disclosure or became so after this date by other than its actions or that of its staff, its representatives, agents or contractors;
- That the information in question has been communicated on a non-confidential basis by a source other than the other Party, its personnel, representatives, agents or service providers who are not subject to any prohibition (in particular, legal or contractual) on revealing this information;
- It has been authorized in writing for disclosure by the other Party;
- It has been subject to a disclosure obligation based on, among other things, a law, regulation, order or judgment rendered by a judicial or administrative authority; and/or
- That its disclosure is necessary for the preservation of its interests in judicial or administrative proceedings.
Section 11 – Insurance
Each of the Parties to the Agreement shall be able to justify, at any time and upon request of the other Party, the subscription of a civil liability insurance policy, with a solvent and reputable insurance company, covering the risks resulting from all damages, whatever they may be, which could be caused to the other Party by itself or its employees within the framework of the execution of the Terms. You shall ensure that your Establishment(s) and/or the Beneficiary Companies comply with this obligation.
Section 12 – Force majeure
Neither Party will be liable for any loss, damage or delay resulting from any event beyond such Party’s reasonable control (a “Force Majeure”). Each Party will promptly notify the other upon becoming aware that any Force Majeure has occurred or is likely to occur and will use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. However, if the suspension due to Force Majeure is longer than fifteen (15) days, the Agreement may be terminated immediately and without notice by either Party without compensation on either side.
Section 13 – Compliance with Laws and Anti-Bribery
13.1. Compliance with Laws
The Parties shall: (i) comply with all applicable laws, rules, statutes and regulations, including all payment network rules; (ii) not undertake, nor cause nor permit to be undertaken, any activity which either: (a) is illegal under any applicable laws, decrees, promulgations, rules, or regulations in effect in any country; or (b) would have the effect of causing the other Party to be in violation of any applicable laws, rules, statutes, and regulations in any other country where the Sunday Services will be provided.
The Parties undertake to, and shall ensure that all persons with whom they have any relationship for the performance of the Agreement (” Associated Person”), including, but not limited to, any employee, director, officer, agent, co-contractor, partner or subcontractor, shall comply, at all times, with all applicable anti-corruption laws, decrees, regulations, codes or regulatory guidelines, including the United States Foreign Corrupt Practices Act (FCPA) (the “Applicable Provisions”) and shall not perform any act that may place the other Party in violation of the Applicable Provisions. The Parties declare and warrant that neither it nor any Associated Person has violated or breached the Applicable Provisions or acted in such a manner as to place the other Party in breach of the Applicable Provisions.
Section 14 – Miscellaneous
14.1. The Agreement shall be governed by the laws of the state of Delaware. In the event of a dispute or claim arising from the Agreement, including, without limitation, its creation, validity, interpretation, performance and/or resolution, the Parties undertake to seek an amicable solution in good faith.
14.2. This Agreement contains the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior negotiations, representations and understandings. In the event of any conflict between this Agreement and any Purchase Order, unless otherwise agreed, the Purchase Order shall prevail. In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.
14.3. We reserve the right to modify the Agreement at any time, in particular the description of the Sunday Services. If these changes are significant, we will inform you using reasonable means, for example, by publishing a notice relating to these modifications on our Website or by sending you an informative email with the relevant notice.
14.4. Neither Party may assign any of its rights or obligations under this Agreement or any Purchase Order without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Nevertheless, each of the Parties shall be free to assign or transfer the Agreement, whether by sale of its business, partial contribution of assets, merger, absorption or transfer of shares, to any of its subsidiaries or affiliates, after written notification to the other Party.
14.5. The personnel of each of the Parties assigned to the performance of the Agreement shall remain, under all circumstances, under the exclusive authority, direction and supervision of their employer. Consequently, such personnel shall continue to be subject to the statutes, collective agreements and management methods of their employer. They shall in no way be considered as employees of the other Party.
14.6. The Parties are, and shall remain throughout the term of the Agreement, independent business partners and professionals, each assuming the risks of its own business and always acting as such. The Parties declare, as necessary, that the Agreement expressly excludes any desire on their part to create a company, association or any other structure whose purpose is to pool skills or share any profits in any form whatsoever or to enter into an agreement whose characteristic is to constitute a hierarchy between them or to establish any subordination of one to the other.
14.7. Sunday represents and acknowledges that its activity for Merchant does not represent the entirety of its income.
14.8. It is expressly agreed between the Parties that in case of invalidity of any of the provisions of the Agreement, the other provisions of the Agreement will remain in full force and effect. The Parties shall then negotiate a clause replacing the nullified clause and having the same economic effect.
14.9. The failure of a Party to rely on any provision of the Agreement shall in no way constitute a precedent or a general waiver to rely on such provision or any other provision.
14.10. Pursuant to the provisions of applicable law, the Parties expressly assume the risks associated with a change in circumstances unforeseeable at the time the Agreement was entered into, each Party being responsible for the related contingencies.