terms & conditions

Terms and conditions – Pay at Table

last updated: November 2022

These Terms and Conditions constitute a legal agreement between you and Sunday. The use of the Application is subject to the executed Order Form that details your access to the Application, these Terms and Conditions, our Privacy Policy, any additional services that may be listed in a Special Conditions Agreement, and any exhibits or appendixes attached thereto. You acknowledge that you have read, understood and accepted Sunday’s Privacy Policy. All capitalized terms shall have the meaning as defined in the Order Form, unless otherwise defined herein. By signing the Order Form, you agree to use the Services in accordance with this Agreement.

Section 1 – Definitions

“Activation Fee” refers to a lump sum for the activation of the Application at each of the restaurants specifically stated in the Order Form, hereto attached and incorporated.

“Affiliates” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.

“Agreement” refers to, in descending order of priority, the entirety of the Order Form, Special Conditions Agreement (if applicable), these Terms, the Privacy Policy, and any exhibits or appendixes attached thereto, and which together supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

“Application” refers to either the proprietary Sunday web -based quick response (QR) code, or the downloadable Sunday payment application, or any other application or product, current or future developed, made available to you under this Agreement and that allows Customers to pay their bill directly via their smartphone.

“Back-office Platform” refers to the interface (website) developed by us and made available to you, in SaaS (Software as a Service) mode, which, associated with the Application, allows you to access the details of the payments made by your Customers via the Application and to services related to the consultation of usage statistics of the Application.

“Client” “you” or “your” refers to the legal entity who has signed and executed an Order Form.

“Client Account” a client account allows you to control the use of the Services for one or more of your Establishments. This account includes the possibility of giving different accesses to different people involved in your Establishment(s), according to your needs and the rights you wish to give them.

“Customer” means your customer who makes use of the Application in order to make payment to you.

“Data” means all the data transmitted by you to us in the context of the performance of the Agreement.

“Data Protection Legislation” refers to 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.

“Documentation” refers to a set of documents explaining the Application and its use (description and configuration manuals, terms of use of the Services, etc.) provided by us to you regardless of their form (paper, digital, etc.).

“Effective Date” refers to the effective date of the Agreement as stated in the Order Form.

“Establishment” any type of venue open to the public in which you offer food and/or beverage services (e.g. bar, festival, restaurant, food court, stadium, etc) and/or a venue as listed and defined in the Order Form.

“Fees” refers to any combination of or collectively Activation Fees, Service Fees, and/or Transaction Fees.

“Initial Term” means a one (1) year starting from the Effective Date.

“Order Form” refers to the order form document executed and entered into between you and us that is incorporated herein.

“Party” or “Parties” refers to Sunday, or you, or both parties collectively.

“Payment Provider” means a secure payment service provider approved by us and that can handle the processing between you and your Customers using the Application.

“Point of Sales” or “POS” means a point of sale payment system that enables the Establishment’s Customers to pay amounts owed to Establishment for goods or services rendered by Establishment to such Customers.

“Personal Information” means information that you provide or for which you provide access to us, or information which we create or obtain on behalf of you, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, etc.).

“Renewal Term” means one (1) month period starting from the end of the Initial Term or the previous Renewal Term.

“Services” has the meaning set forth in Section 2.1.

“Service Fee” refers to a percentage on each transaction made by the Customers via the Application, specifically stated in the Order Form, hereto attached and incorporated.

“Special Conditions Agreement” refers to a separate special additions agreement that may be executed between you and Sunday.

“Sunday” “we” “us” or “our” refers to the SundayApp, Inc. PBC, a Delaware public benefit corporation, and its Affiliates and assigns.

“Taxes” refers to any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever.

“Term” means collectively the Initial Term and any subsequent Renewal Terms.

“Transaction Fee” refers to a lump sum for each transaction processed, specifically stated in the Order Form, hereto attached and incorporated.

Section 2 – Description of Services

2.1. Our Application improves the payment experience of your Customers. Pursuant to this Agreement, we provide you, in a non-exclusive manner, the following Services:

Displaying Sunday QR codes in your Establishment, so your Customers can benefit from the Sunday Application:
- your Customers will be able to access your menu of items via the QR code;
- your Customers will be able to pay their bill, tip, donate to an association and/or obtain a receipt of the payment transaction, all via the QR code.

We will take care of:
- the integration of the Application to your POS and/or to your aggregators and middlewares/software;
- the creation of QR codes to be printed and displayed in your establishment;
- the payment transaction, in real time (which can be implemented and executed by a Payment Provider) at the end of which you will receive a notification;
- the troubleshooting as well as upgrading and maintenance of the Application.

We also provide you with a Back-Office Platform where you can:
- customize the interface that your Customers access,
- add, remove or modify your menu and offers,
- access all payments made via the Application,
- access analysis on the use and performance of the Application.

Notwithstanding anything to the contrary contained in this Agreement, we may, from time to time change the Services without your consent, provided that such changes do not materially affect the nature or scope of the Services, or the fees. In addition, we may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.

2.2. Except for maintenance periods and force majeure, we will use commercially reasonable efforts to ensure that the Application is accessible 24/7. In the event of a malfunction or interruption of the Services and upon notification by an e-mail sent by you to support-us@sundayapp.com, we will make our best efforts to restore the Services as soon as possible.

Section 3 – How to use our Services

3.1. Services are accessed (i) from your account (ii) using the usernames and passwords provided to you by us. Each account is personal and cannot be shared with third parties. You may freely change the password in compliance with the security standards necessary for data protection. The usernames and passwords are intended to reserve access to the Application to you, to protect the integrity and availability of the Application, as well as the integrity, availability, and confidentiality of the Data.

Usernames and passwords are personal and confidential. You shall keep your usernames and passwords secret, not to disclose them in any form whatsoever and to ensure their security and confidentiality. You are fully responsible for the use of the usernames and the retention of the password and for the activities occurring using your usernames and passwords. You Shall ensure that no unauthorized person has access to the Application. In the event of loss or theft of one of the usernames and passwords, you shall inform us as soon as possible so that we can communicate new identifiers allowing you access to the Application.

3.2. In the event of a security breach due to your non-compliance with this Section, only you will be liable, and we shall not incur any liability related to the same.

Section 4 – Your Obligations

You shall:

Comply at all times with this Agreement.
Take out a subscription with the Payment Provider. Upon request, we may create an account with the latter. It is agreed between the Parties that your subscription with a Payment Provider will not entail additional costs for us. You acknowledge that you have been informed that if you do not subscribe to the Payment Provider appointed by us, we will not be able to provide you with the Application or the Services. We are not liable for any unavailability of the Application and/or Services due to your failure to subscribe to the Payment Provider.
Grant us all necessary access to your point of sale system as needed to make necessary changes to assure the Application and/or Services work properly.
Comply with the pre-requirements to ensure the technical compatibility of equipment with the Application. 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 this Agreement in the event of a change of POS service or a change that is incompatible with the pre-requirements.

You will need certain equipment, software, and internet access to be able to access the Services. Acquiring, installing, maintaining and operating equipment and internet access is solely your responsibility. You are responsible for ensuring that such equipment is compatible with the Services and complies with all configurations and specifications provided by us, which may be amended from time to time. We neither represent nor warrant that the Services will be accessible through all web browser releases or used with all operating systems.

You will: (a) be responsible for your employees and your contractors’ compliance with this Agreement and for all their acts and omissions; (b) be responsible for the accuracy, quality, and legality of any data you provide and the means by promptly notify us of any unauthorized access or use of which you become aware; (d) comply with all laws, and in particular, any laws applicable to your respective use of the Services; and (e) promptly and fully cooperate with us and make the necessary personnel and resources available to us in order to deliver the Services, when we reasonably request.

In addition you are solely responsible for the following:

complying with this Agreement, as well as with any Special Conditions, additional terms and the documentation, updating the Data that is sent to us and/or the Application, whether it relates to Customer activity or to that of your establishment(s),
for obtaining all the appropriate authorizations to carry out your business activity and allow your establishment(s) to benefit from the Application and the Services,
In the event of identity theft, fraud, unauthorized use of a Client Account, or in the event of misappropriation by a third party of the Data in said account to use the Application, as a consequence of any breach by you of this Agreement,
for the placing of and compliance with Orders placed by your Customers via the Application. We only provide a tool to facilitate the processing of transactions. We do not intervene in the catering service that you may offer to your Customers. You are therefore solely responsible for the conditions under which the catering or restaurant services are offered (including, in particular, the 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) and the Customer relationship,
for all content that you may include in the Application, 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 us and to any third party,
to comply with all applicable regulations, in particular, in terms of product safety, health rules and consumer law. In this respect, you, in particular, are solely responsible for communicating exhaustive information, and keeping it up to date, relating to the list of ingredients, allergens or calories that may be present in the products that are offered to your Customers, in accordance with the applicable regulations,
not charging Customers additional fees for using the Application. The use of the Application must remain free of charge for your Customers,
Where applicable, to comply with the general terms and conditions of sale and other contractual documents imposed by a Payment Provider, and
All tax and social security consequences resulting from the use of the Application and the associated Services with respect to any third party and any administrative or public authority.

Section 5 – Term

Unless expressly agreed otherwise between the Parties, the Agreement shall enter into force from the Effective Date and continue for the Initial Term.

After the Initial Term, the Agreement will be automatically renewed for an indefinite number of Renewal Terms, until terminated by either Party upon written notification. Termination notice:

By us: by providing written notice at least fifteen (15) days before the end of the Initial Term or any Renewal Terms.
By you: by email sent at any time to us (without minimum notice) at the address: goodbye@sundayapp.com.

Section 6 – Fees

6.1. We will receive the following Fees as remuneration for our Services:

Activation Fee
Service Fee
Transaction Fee

Fees are non-cancelable and non-refundable. You agree to pay all invoices net thirty (30) days from the date of our invoice. All Fees paid and expenses reimbursed under this Agreement will be in Canadian currency, unless otherwise agreed on in writing signed by both Parties. Our Fees do not include any Taxes. You are responsible for paying all Taxes associated with your purchases hereunder.

6.2. The Activation Fees will be directly deducted by us from the transactions carried out between you and your Customers via the Application, in one or more installments until full payment is made, which you and each of your establishments expressly accepts.

6.3. The Service Fees and Transaction Fees will be directly deducted by us from the transactions carried out between you and your Customers via the Application which you and each of your establishments expressly accepts.

6.4. Each month, we will issue an invoice to you which will include (i) the details of the transactions carried out via the Application during the past period, (ii) the amount of Fees paid to us over the past period and (iii) the date of deduction of the Fees for the past period by us. Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.

6.5. We will update you daily on your Back-Office platform. We will provide you with information regarding the amount of payments due by your Customers, the time frame for receipt of funds by you, which may vary according to the method of payment used by Customers, usually between one (1) and fifteen (15) business days. In the event that a payment from a Customer takes longer than fifteen (15) days, we will inform you of such a delay and make our reasonable best effort to make sure that the payment is made as soon as reasonably possible

6.6. Any service not included in the Services and performed by us will be subject to an additional invoice after prior written validation by you.

6.7. Any disagreement related to invoicing must be reported by email to support-us@sundayapp.com within thirty (30) days of the invoice date. Failing this, you will be considered as having accepted the invoice. If any invoiced amount is not received by us by the due date, then, without limiting our rights or remedies, those amounts will accrue interest at a rate of 1.5% per month or the maximum allowed under applicable law (whichever is lower). We, at our option, may suspend the Services, in whole or in part, if we do not receive all undisputed amounts due and owing under this Agreement within thirty (30) days after delivery of notice to you of the failure to pay such overdue balances. We shall be entitled to an award of reasonable attorney’s fees and collection costs in connection with your breach of your payment obligations.

Section 7 – Licence

7.1. Subject to the terms and conditions of this Agreement, we grant you, during the Term, a non-exclusive, personal, non-transferable right of access and use of the Application and Services solely in accordance with this Agreement and for your internal business purposes in connection with your use of the Services during the Term of this Agreement.

7.2. You grant to us a non-exclusive right of reproduction and representation of trademarks, logos, designs and models, trade names, company names and more generally any other right attached to the Services and Application belonging to you in accordance with any usage instructions provided to us in writing in advance. All goodwill arising from the use of such trademarks, logos, designs and models, trade names, or company names shall inure to you.

Section 8 – Ownership

8.1. Ownership of the Application

8.1.1. We own all rights, title and interest, and/or have a license, including but not limited to all worldwide intellectual property rights, in and to the Services, documentation, and the Application and/or has obtained all necessary authorizations to enter into this Agreement. This Agreement does not transfer to you any right of ownership or intellectual property rights over the Services or the Application except the license rights expressly set forth in Section 7.1 of the Agreement.

You shall not modify or alter any proprietary notices within the Services. Any reproduction, representation, modification, publication, adaptation of all or part of the elements of the Services such as in particular the trademarks, logos, domain names and any other of our distinctive signs, regardless of the means or process used, is prohibited, without prior written authorization from us. Any unauthorized use of all or part of the Application and/or Services shall be considered as constituting an infringement on our rights.

8.1.2. We hereby grant to you a non-exclusive, non-sublicensable, non-transferable license to use the Application solely for the business purposes in connection with your use of the Services during the Term of this Agreement.

8.2. Use of Data

We implement commercially reasonable means designed to prevent the unauthorized loss or access to Data. You grant to us and our subcontractors a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, translate, and otherwise use and process Data (i) as reasonably necessary or useful to perform and improve the Services and for the exercise of our rights under this Agreement, (ii) optimizing the usage experience, and/or (iii) providing – analytical or statistical – tools aimed at increasing the your profitability and/or visibility. You warrant to us that you have the right to grant the foregoing license and provide Data to us in accordance with this Agreement.

Section 9 – Personal Data Security

We will comply with applicable laws and regulations, including General Data Protection Regulation (EU) 2016/679, the California Consumer Privacy Act and the California Privacy Rights Act in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information. We will employ security measures in accordance with Sunday’s Data Privacy Policy.

Section 10 – Personal Data Processing

10.1. Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Section 10 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation. In this Section, Applicable Laws means (for so long as and to the extent that they apply to us) the law of the European Union, the law of any member state of the European Union and/or applicable data privacy laws in the United States.

10.2. The Parties acknowledge that for the purposes of the Data Protection Legislation, you are the Data Subject and/or Controller and we are the Controller and may also be a Processor. Services and the Order Form set out the scope, nature and purpose of processing by us the duration of the processing and the types of Personal Data and categories of Data Subject.

10.3. Without prejudice to the generality of Section 10.1, you will ensure that you have all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data to us and/or lawful collection of the Personal Data for the duration and purposes of this Agreement.

10.4. Without prejudice to the generality of Section 10.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this Agreement:

(a) process Personal Data only on your documented written instructions or consent unless we are required by Applicable Laws to otherwise process that Personal Data. Where we are relying on Applicable Laws as the basis for processing Personal Data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;

(b) ensure that we have in place appropriate technical and organizational measures, reviewed and accessible by you, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) For all international transfers of any Personal Data:

provide appropriate safeguards in relation to the transfer;
assure the Data Subject has enforceable rights and effective legal remedies;
We will comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
We will comply with reasonable instructions notified to us in advance by the Data Subject with respect to the processing of the Personal Data;
assist you, at your cost, in responding to any Data Subject request and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
Respond to any Data Subject request;
notify you without undue delay on becoming aware of a Personal Data Breach;
at your written direction, delete or return Personal Data and copies thereof to you on termination of this Agreement unless required by Applicable Law to store the Personal Data; and
maintain complete and accurate records and information to demonstrate our compliance with this clause and immediately inform you if, in our opinion, an information infringes the Data Protection Legislation.

10.5. You consent to us appointing a third-party processor of Personal Data under this Agreement, as necessary. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Section 10 and in either case which we confirm reflects and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this Section 10.

Section 11 – Warranties

We represent and warrant that we will provide the Services in a professional and workmanlike manner and that the Application will conform substantially to the Documentation under normal use and circumstances. You shall promptly notify us to the extent of any nonconformance with the foregoing warranty, and our sole obligation and your exclusive remedy, shall provide technical support to correct the issue, or if we determine the issue cannot be corrected, we may elect to terminate this Agreement and provide a prorated refund of prepaid fees for the remaining portion left in the Term as of the effective date of termination.

OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 11, WE DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO YOU REGARDING THIS AGREEMENT, THE APPLICATION AND THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY US. NO WARRANTY IS MADE THAT USE OF THE SERVICES OR APPLICATION WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR APPLICATION WILL BE CORRECTED, OR THAT THE SERVICES OR SOLITONS’ FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDER OR THE PAYMENT PROVIDER. WE DO NOT WARRANT THAT THE SERVICES WILL FUNCTION IN COMBINATION WITH YOUR CONTENT OR APPLICATIONS OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, SERVICE, OR DATA NOT PROVIDED BY US.

Section 12 – Limitation on Liabilities

12.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2. IN NO EVENT WILL SUNDAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID TO SUNDAY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM . Some states or jurisdictions may not allow the exclusion or the limitation of liability. In such states or jurisdictions, our liability shall be limited to the full extent permitted by law.

We are not responsible for the conclusion and/or proper execution of the Order between you and Customers nor for the validity or accuracy of the payment made by Customers and are exempt from any liability as to the direct and indirect consequences that would result from the relationship between you and Customers to which we are not a party.

12.3. The limitations in Section 12.1 and Section 12.2 do not apply to your payment obligations, or a Party’s infringement or misappropriation of the other Party’s intellectual property.

Section 13 – Indemnification

13.1. Sunday Indemnification. We will defend you and your officers, directors, employees, agents, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party alleging that your receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of that third party (each, a “Claim Against the Client”), and will pay all settlements agreed to by us and damages awarded against you as a result of a Claim Against the Client; provided, however, that we will have no obligations under this Section 13.1 with respect to claims to the extent arising out of: (a) use of the Services in combination with any materials or equipment not supplied to you by us; (b) any modifications or changes made to the Services by or on behalf of any person or entity other than us; (c) Data; or (d) your breach of this Agreement. If a Service, or any part thereof, becomes, or in our opinion may become, the subject of a claim of infringement or misappropriation, we may, atiouroption: (x) obtain a license for your continued use of that Service in accordance with this Agreement; (y) replace or modify the Services so that they are no longer claimed to infringe or misappropriate; or (z) terminate this Agreement and refund to you any portion of the fees prepaid by you for the infringing Service.

13.2. Client Indemnification. You will defend us and our officers, directors, employees, agents, Affiliates, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party: (a) alleging that any information or materials provided by you (including but not limited to Data), or our receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of that third party; (b) arising from your breach of Section 4; (c) arising from your failure to comply with applicable law; or (d) arising from a dispute between you and any of your Customers (each of (a) – (d), a “Claim Against Sunday”) and will pay all settlements entered into and damages awarded against us as a result of a Claim Against Sunday.

13.3. Indemnification Procedures. The Party seeking indemnification hereunder will promptly notify the indemnifying Party in writing of a claim for which it seeks indemnification hereunder and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party will immediately take control of the defense and investigation of the claim and will employ counsel of our choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party will not settle any claim hereunder in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this Section 13.3 will not relieve the indemnifying Party of our obligations under this Section 13 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at our own cost and expense.

Section 14 – Confidentiality

It is agreed between the Parties that the written or oral information obtained from the other Party during the negotiation and/or performance of the Agreement is confidential information. In particular, the following are considered confidential, the Application, information relating to the Services, know-how, commercial, industrial, or organizational strategy, prospects, financial data of either Party as well as any information contained in documents bearing the words “confidential” or whose confidential nature has been indicated, in writing, when communicated or which are by nature confidential (the “Confidential Information”).

During the Term and for a five (5) year period thereafter, the Parties shall use the same degree of care they use to protect the confidentiality of their own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of the Disclosing Party. The obligations in this Section will survive termination and continue for so long as the applicable information constitutes Confidential Information.

The Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Recipient gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.

Any feedback, comments, suggestions or proposed modifications to the Services provided by or on behalf of you to us may be freely used by us without duty of confidentiality, limited use, notice, or accounting.

This obligation of confidentiality shall not apply to information which, within the meaning hereof, should be considered Confidential Information, but for which the Party concerned may provide proof that it:

was already in its possession, that 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,
was already in the public domain on the date of its disclosure or became so after this date other than by its actions or that of its staff, representatives, agents, or service providers; it was communicated in a non-confidential manner by a source other than the other Party, its staff, representatives, agents, or service providers that are not subject to any prohibition (in particular legal or contractual) of disclosing this information, and
has been the subject of a written disclosure authorization by the other Party.

Section 15 – Insurance

During the Term each Party will maintain the types of insurance customary and appropriate for this Agreement, in the amount necessary to cover its obligations and responsibilities under this Agreement or required by law, whichever is less. On the other Party’s request, each Party will deliver to the other Party a certificate or other proof of its insurance, describing the amount and coverage of its insurance. If there is any material change to either Party’s insurance, that Party will promptly notify the other Party.

Section 16 – Termination

This Agreement may be terminated by you at any time, with or without cause, upon providing written notice via email to goodbye@sundayapp.com.

We may terminate this Agreement at any time by providing you with fifteen (15) days written notice.

In the event of termination of the Agreement, for any reason whatsoever, the Parties expressly agree as follows:

you may no longer use the Services or the Application,
you are responsible for removing all QR codes from your premises,
we will receive any Fees due to us on any payment made to you and/or your Establishments via the Application as of the date that notice of termination is received, and
the following sections of this Agreement shall survive termination: Section 7 (License), Section 8 (Ownership), Section 9 (Data Security), Section 10 (Data Processing), Section 11 (Warranties), Section 13 (Indemnification), Section 14 (Confidentiality), Section 17 (Anti-Corruption) Section 21 (General Provisions), and Section 22 (Governing Law).

Section 17 – Anti Corruption

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 so-called “Sapin II” Law of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life, the United Kingdom Bribery Act 2010 and 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 18 – Reference

It is agreed between the Parties that we may reproduce and represent your trademarks, logos, designs and models, trade names, company names, and more generally any other right attached to the services and products belonging to you as a reference, including in the context of marketing operations on any medium and by any process of our choice such as presentations, website brochures, etc., with any third party, regardless of the method of communication.

Section 19 – Assignment

Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed; provided that upon prior written notice to the other Party, either Party may assign this Agreement, in whole, to a successor of all or substantially all of the assets of that Party through merger, reorganization, consolidation or acquisition. If a Party makes any attempted assignment, transfer or other conveyance in violation of the foregoing, the attempted assignment, transfer, or other conveyance will be null and void.

Section 20 – Force Majeure

Neither Party will be liable for delay or failure in performing any of its obligations (other than payment obligations) hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations or orders, epidemics or pandemics, terrorism, denial of service, ransomware or other cyberattacks, communication or utility failures or casualties or the failures or acts of third parties.

Section 21 – General Provisions

21.1. Nothing in this Agreement will constitute or be deemed to constitute a partnership between the Parties hereto or constitute or be deemed to constitute one Party as agent of the other, for any purpose whatsoever, and neither Party will have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.

21.2. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.

21.3. In case any one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.

21.4. The fact that a Party does not avail itself of a provision of this Agreement does not in any way constitute a precedent or a general waiver to avail itself of said provision or any other provision.

21.5. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and sent to the address of each Party as indicated in the Agreement. Any amendment to the indicated address must be notified by registered letter with return receipt requested to the other Party to be binding. All notices shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission or email).

21.6. Each Party represents and warrants that it has full power and authority to enter into this Agreement and perform its obligations hereunder, and that it has taken all actions necessary to authorize entering into this Agreement.

Section 22 – Governing Law

This Agreement will be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the Parties. Each of the Parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by any other Party or its successors or assigns shall be exclusively brought in the Delaware Court of Chancery and any state appellate court therefrom within the state of Delaware. The Parties each hereby consent to the jurisdiction and venue of the Delaware Court of Chancery, and waive any objections to such jurisdiction and venue.

Terms and Conditions – Order & Pay

last updated: November 2022

These Terms and Conditions constitute a legal agreement between you and Sunday. The use of the Application is subject to the executed Order Form that details your access to the Application, these Terms and Conditions, our Privacy Policy, any additional services that may be listed in a Special Conditions Agreement, and any exhibits or appendixes attached thereto. You acknowledge that you have read, understood and accept Sunday’s Privacy Policy, found here. All capitalized terms shall have the meaning as defined in the Order Form, unless otherwise defined herein. By signing the Order Form, you agree to use the Services in accordance with this Agreement.

Section 1 – Definitions

“Activation Fee” refers to a lump sum for the activation of the Application at each of the restaurants specifically stated in the Order Form, hereto attached and incorporated.

“Client” “you” or “your” refers to the Establishment and/or legal entity who has signed and executed an Order Form.

“Customer” means your customer who makes use of the Application in order to make payment to you.

“Data” means all the data transmitted by you to us in the context of the performance of the Agreement.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organizational measures: as defined in the GDPR.

“Effective Date” refers to the effective date of the Agreement as stated in the Order Form.

“Establishment” rany type of venue open to the public in which you offer food and/or beverage services (e.g. bar, festival, restaurant, food court, stadium, etc) and/or a venue as listed and defined in the Order Form.

“Fees” refers to any combination of or collectively Activation Fees, Service Fees, and/or Transaction Fees.

“Initial Term” means a one (1) year starting from the Effective Date.

“Order” refers to a Customer’s order made at one of your Establishments.

“Order Form” refers to the order form document executed and entered into between you and us that is incorporated herein.

“Party” or “Parties” refers to Sunday, or you, or both parties collectively.

“Payment Provider” means a secure payment service provider approved by us and that can handle the processing between you and your Customers using the Application.

“Renewal Term” means one (1) month period starting from the end of the Initial Term or the previous Renewal Term.

“Services” has the meaning set forth in Section 2.1.

“Service Fee” refers to a percentage on each transaction made by the End Customers via the Application, specifically stated in the Order Form, hereto attached and incorporated.

“SMS Fee” refers to an SMS fee for each SMS sent to a Client Customer in connection with an Order.

“Special Conditions Agreement” refers to a separate special additions agreement that may be executed between you and Sunday.

“Sunday” “we” “our” or “us” – refers to the SundayApp, Inc. PBC, a Delaware public benefit corporation, and its Affiliates and assigns.

“Term” means collectively the Initial Term and any subsequent Renewal Terms.

“Transaction Fee” refers to a lump sum for each transaction processed, specifically stated in the Order Form, hereto attached and incorporated.

Section 2 – Purpose/Description of Services

2.1. Our Application improves the Order and payment experience of your Customers. Pursuant to this Agreement, we provide you, in a non-exclusive manner, the following Services:

Displaying Sunday QR codes in your Establishment, so your Customers can benefit from the Sunday Application:
- your Customers will be able to access your menu of items via the QR code and place an Order;
- your Customers will also be able to be informed of the preparation of their Order;
- your Customer will be able to pay their bill, tip, donate to an association and/or obtain a receipt of the payment transaction, all via the QR code.

We will take care of:
- the integration of the Application to your POS and/or to your aggregators and middlewares/software;
- the creation of QR codes to be printed and displayed in your establishment;
- the payment transaction, in real time (which can be implemented and executed by a Payment Provider) at the end of which you will receive a notification;
- the troubleshooting as well as upgrading and maintenance of the Application.

We also provide you with a Back-Office Platform where you can:
- customize the interface that your Customers access,
- add, remove or modify your menu and offers,
- access all payments made via the Application,
- access analysis on the use and performance of the Application.

Section 3 – How to use our Services

3.1. In order to access our Services you must create a Client Account and a user name and password that you will create. Each account is personal and should not be shared with third parties. You may freely change the password in compliance with the security standards necessary for data protection. The usernames and passwords are intended to reserve access to the Application to you, to protect the integrity and availability of the Application, as well as the integrity, availability, and confidentiality of the Data.

Usernames and passwords are personal and confidential. You shall keep your usernames and passwords secret, not to disclose them in any form whatsoever and to ensure their security and confidentiality. You are fully responsible for the security of your username and password and for the activities occurring using your usernames and passwords. It is your responsibility to ensure that no unauthorized person has access to your username and/or password and/or the Application. In the event of loss or theft of one of the usernames and passwords, you must inform us immediately so that we can communicate new identifiers allowing you access to the Application.

3.2. In the event of a security breach due to your non-compliance with this Section, only you will be liable, and we shall not incur any liability related to the same.

Section 4 – Your Obligations

You shall:

Comply at all times with this Agreement.
Take out a subscription with the Payment Provider. Upon request, we may create an account with the latter. It is agreed between the Parties that your subscription with a Payment Provider will not entail additional costs for us. You acknowledge that you have been informed that if you do not subscribe to the Payment Provider appointed by us, we will not be able to provide you with the Solution or the Services. We will not be liable for any unavailability of the Solution and/or Services due to your failure to subscribe to the Payment Provider.
Grant us all necessary access to your POS as needed to make necessary changes to assure the Solution and/or Services work properly.
Comply with the pre-requirements provided by us to you that ensure the technical compatibility of equipment with the 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 this Agreement in the event of a change of POS service or a change that is incompatible with the pre-requirements.

You will: (a) maintain an active registration and good standing as a corporation other entity under the applicable laws of the jurisdiction of your incorporation, (b) be responsible for your employees and your contractors’ compliance with this Agreement and for all their acts and omissions; (c) be responsible for the accuracy, quality, and legality of any data you provide and the means by which you acquired such data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and promptly notify us of any unauthorized access or use of which yout become aware; (e) comply with all laws, and in particular, any laws applicable to its respective use of the Services; and (f) promptly and fully cooperate with us and make the necessary personnel and resources available to us in order to deliver the Services, when we reasonably request.

In addition you are solely responsible for the following:

complying with this Agreement, as well as with any Special Conditions, additional terms and the documentation, updating the Data that is sent to us and/or the Solution, whether it relates to End Customer activity or to that of your establishment(s),
for obtaining all the appropriate authorizations to carry out your business activity and allow your establishment(s) to benefit from the Solution and the Services,
in the event of identity theft, fraud, unauthorized use of a Client 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 this Agreement,
for the placing of and compliance with Orders placed by your Customers via the Application or Solution. We only provide a tool to facilitate the processing of transactions. We do not intervene in the catering service that you may offer to your Customers. You are therefore solely responsible for the conditions under which the catering or restaurant services are offered (including, in particular, the updating of your menus, the availability of products, the quality of the products and services that you offer, the display of the allergens for your products) and the Customer relationship,
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,
to comply with all applicable regulations, in particular, in terms of product safety, health rules and consumer law. In this respect, you, in particular, are solely responsible for communicating exhaustive information, and keeping it up to date, relating to the list of ingredients, allergens or calories that may be present in the products that are offered to your Customers, in accordance with the applicable regulations,
keeping your Establishment’s business information and menus up to date. Make all information regarding its business and menus (including prices, menus, availability of products and allergens in your products) up to date,
fulfill all Orders submitted via the Application in accordance with the terms of the Back-office Platform and in accordance with applicable sanitary laws,
not charging Customers additional fees for using the Application.The use of the Application must remain free of charge for your Customers,
Where applicable, to comply with the general terms and conditions of sale and other contractual documents imposed by a Payment Provider, and
all tax and social security consequences resulting from the use of the Solution and the associated Services with respect to any third party and any administrative or public authority.

Section 5 – Term

Unless expressly agreed otherwise between the Parties, the Agreement shall enter into force from the Effective Date and continue for the Initial Term.

After the Initial Term, the Agreement will be automatically renewed for an indefinite number of Renewal Terms, until terminated by either Party upon written notification. Termination notice:

By us: by providing written notice at least fifteen (15) days before the end of the Initial Term or any Renewal Terms.
By you: by email sent at any time to us (without minimum notice) at the address: goodbye@sundayapp.com.

Section 6 – Fees

6.1. We will receive the following remuneration for the Services provided under this Agreement:

Activation Fee
Service Fee
Transaction Fee
SMS Fee

Fees are non-cancelable and non-refundable. You agree to pay all invoices net thirty (30) days from the date of our invoice. All Fees paid and expenses reimbursed under this Agreement will be in United States currency, unless agreed upon otherwise in writing signed by both Parties. You are responsible for paying all Taxes associated with your purchases hereunder.

6.2. The Activation Fees will be directly deducted by us from the transactions carried out between you and the End Customers via the Application, in one or more installments until full payment is made, which you and each of your establishments expressly accepts and agrees to.

6.3. The Service Fees, Transaction Fees, and SMS Fees will be directly deducted by us from the transactions carried out between you and End Customers via the Application which each you and each of your establishments expressly accepts and agrees to.

6.4. Each month, we will issue an invoice to you which will include (i) the details of the transactions carried out via the Application during the past period, (ii) the amount of the Activation, Services Fees and SMS Fees paid to us over the past period and (iii) the date of deduction of the Service Fees and the SMS Fees for the past period by us. Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.

6.7. The payment of the Orders can be done, in whole or in part, via our Application, at the choice of your Customers, by bank card or restaurant check. You are informed of each payment made via our Application.

6.8. We will inform you, in real time, of the payments made, including the payment of the full price of the Order as well as any tips that may have been paid via the Application.

6.9. Any service not included in the Services and performed by us will be subject to an additional fee, such additional services and fees will only be incurred by you after we receive your prior written consent.

6.10. Any disagreement related to invoicing must be reported by email to support-us@sundayapp.com within thirty (30) days of the invoice date. Failing this, you will be considered as having accepted the invoice. If any invoiced amount is not received by us by the due date, then, without limiting our rights or remedies, those amounts will accrue interest at a rate of 1.5% per month or the maximum allowed under applicable law (whichever is lower). We, at our option, may suspend the Services, in whole or in part, if we do not receive all undisputed amounts due and owing under this Agreement within thirty (30) days after delivery of notice to you of the failure to pay such overdue balances. We shall be entitled to an award of our reasonable attorney’s fees and collection costs in connection with your breach of your payment obligations.

Section 7 – Licence

Section 8 – Ownership

8.1. Ownership of the Application

8.2. Use of Data

You, as between you and us, you own all of your Data. We implement commercially reasonable means designed to prevent the unauthorized loss or access to Data. You grant to us and our subcontractors a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, translate, and otherwise use and process Data (i) as reasonably necessary or useful to perform and improve the Services and for the exercise of our rights under this Agreement, (ii) optimizing the usage experience, and/or (iii) providing – analytical or statistical – tools aimed at increasing the your profitability and/or visibility. You warrant to us that you have the right to grant the foregoing license and provide Data to us in accordance with this Agreement.

You warrant that you have all the rights and authorizations required to subscribe to our 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.

In order (i) to allow the functioning of the Solution and the Services, (ii) to allow you to follow in real time the payment of Orders by your customers in your Establishment(s), (iii) to provide you with statistical data in order to improve the management of your consumers and (iv) to improve our Services and our Solution, you expressly authorize us to access your POS and your aggregators/middlewares and to collect information relating to the transactions carried out in your Establishment(s).

Section 9 – Personal Data Security

Section 10 – Personal Data Processing

10.4. Without prejudice to the generality of Section 10.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this Agreement:

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) For all international transfers of any Personal Data:

provide appropriate safeguards in relation to the transfer;
assure the Data Subject has enforceable rights and effective legal remedies;
We will comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
We will comply with reasonable instructions notified to us in advance by the Data Subject with respect to the processing of the Personal Data;
assist you, at your cost, in responding to any Data Subject request and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
Respond to any Data Subject request;
notify you without undue delay on becoming aware of a Personal Data Breach;
at your written direction, delete or return Personal Data and copies thereof to you on termination of this Agreement unless required by Applicable Law to store the Personal Data; and
maintain complete and accurate records and information to demonstrate our compliance with this clause and immediately inform you if, in our opinion, an information infringes the Data Protection Legislation.

10.5 You consent to us appointing a third-party processor of Personal Data under this Agreement, as necessary. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Section10 and in either case which we confirm reflects and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this Section 10.

Section 11 – Warranties

Section 12 – Limitation on Liabilities

12.2. IN NO EVENT WILL SUNDAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID TO SUNDAY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. Some states or jurisdictions may not allow the exclusion or the limitation of liability. In such states or jurisdictions, our liability shall be limited to the full extent permitted by law.

12.3. The limitations in Section 12.1 and Section 12.2 do not apply to your payment obligations, or a Party’s infringement or misappropriation of the other Party’s intellectual property.

Section 13 – Indemnification

Section 14 – Confidentiality

was already in its possession, that 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,
was already in the public domain on the date of its disclosure or became so after this date other than by its actions or that of its staff, representatives, agents, or service providers; it was communicated in a non-confidential manner by a source other than the other Party, its staff, representatives, agents, or service providers that are not subject to any prohibition (in particular legal or contractual) of disclosing this information, and
has been the subject of a written disclosure authorization by the other Party.

Section 15 – Insurance

Section 16 – Termination

This Agreement may be terminated by you at any time, with or without cause, upon providing written notice via email to goodbye@sundayapp.com.

We may terminate this Agreement at any time by providing you with fifteen (15) days written notice.

In the event of termination of the Agreement, for any reason whatsoever, the Parties expressly agree as follows:

You may no longer use the Services or the Application,
You are responsible for removing all QR codes from your premises,
We will receive any Fees due to uson any payment made to you and/or your establishments via the Application as of the date that notice of termination is received, and
The following sections of this Agreement shall survive termination: Section 7 (License), Section 8 (Ownership), Section 9 (Data Security), Section10 (Data Processing), Section 11 (Warranties), Section 13 (Indemnification), Section 14 (Confidentiality), Section 17 (Anti-Corruption) Section 21 (General Provisions), and Section 22 (Governing Law).

Section 17 – Anti Corruption

Section 18 – Reference

It is agreed between the Parties that we may reproduce and represent their trademarks, logos, designs and models, trade names, company names, and more generally any other right attached to the services and products belonging to them as a reference, including in the context of marketing operations on any medium and by any process of its choice such as presentations, website brochures, etc., with any third party, regardless of the method of communication.

Section 19 – Assignment

Section 20 – Force Majeure

Section 21 – General Provisions

Section 22 – Governing Law

User terms

last updated: November 2022

The Sunday App is an application (the “Application“) developed by our Sunday teams (“we” or “SUNDAY“), in order to simplify the placing of orders (the “Order“) and/or the payment of the bills within all the establishments using our services, whether it is a restaurant, a bar, a hotel, etc. (the “Establishment(s)“).

The purpose of these General Terms of Use (the “GTU“) is to define the conditions of our service offer (the “Service(s)“). The use of the Application and our Services is conditional upon the unreserved acceptance of our GTU and our Privacy Policy

Section 1 – Our services

By either displaying our QR codes or enabling other means of connection, an Establishment may allow you to benefit from some or all of the following Sunday Services (the “Services”) provided by Sunday App Inc, PBC or one of its affiliates:

access a menu of items and place an Order;
catering services provided on our behalf by the Establishment;
pay the bill, tip, donate to an association and/or obtain a receipt of a payment transaction;
leave a review of the Establishment.

Please follow the instructions in the Application to know how to use the Services provided. The use of our Services may be subject to a service fee.

1.1 Accessing a menu of items and Ordering

You may view the menu of an Establishment and place all or part of your Order directly via the Application.

You are solely responsible for reviewing the menu and checking that it is suitable to you, including with the staff of the Establishment.

1.2. Paying the bill

You may pay all or part of the bill via the Application, whether this Order was placed via the Application or directly with the staff of the Establishment.

You are solely responsible for checking the details of the Establishment’s bill provided to you by the Establishment to ensure that they are correct before you pay.

Payment of bills is made available by means authorized by the Establishment, which, depending on the markets, may include debit/credit card, online payment or meal vouchers.

By paying a bill, you agree to provide accurate information and to comply with the terms and conditions of your payment providers (credit card providers, prepaid corporate services, online payment systems, etc.) (if applicable). We will not be held responsible for your failure to comply with any of these obligations.

Once the bill is paid via the Application, all of the following information is provided to the relevant Establishment: (i) the payment of the table concerned, operated and recorded via the Application and (ii) your identity, namely your first and last name. You can access your receipt on our Application. You can also have it sent to you by email, to the address you have provided.

In case of failure of payment via the Application, the payment of the bill will have to be done directly with the Establishment.

1.3 Tipping

When paying the bill via the Application, you may be able to leave a tip for the service provided by the Establishment if you wish to do so. The amount you choose to tip will be added to your bill. You are solely responsible for the amount you tip the Establishment for their services.

1.4 Donating to an association

At the time of your payment, we may present some associations for you to consider donating an amount of your choosing if you wish to do so. In no case is it mandatory or necessary to make such a donation to use our Services.

The amount of the donation is automatically added to the total of the bill. One hundred percent (100%) of your donation will be transferred to the association.

1.5 Regarding reviews

You have the possibility to publish on the Application comments, testimonials and satisfaction ratings about the Establishment, the quality of its products and its service. These reviews are public and available to other users of the Application as well as to the Establishments concerned.

You hereby agree not to enter any content that is defamatory, derogatory, insulting, hateful or terrorist in nature, towards us, the Establishment, their staff or customers, or third parties, or that is likely to offend public order or morality or contravene the legal and regulatory provisions in force.

Sunday reserves the right to eliminate any content that does not follow the guidelines listed on this section or overall may be harmful to Sunday’s good name and reputation.

No compensation will be provided to you in exchange for submitting your review.

Section 2 – Your User Account

2.1 The creation of a user account on the Application is not mandatory to make payments via the Application, but is necessary to access some of our Services (the “User Account“).

Only one User Account is permitted per person. You agree to create only one User Account. Account sharing is not allowed. Don’t let another person use your account, and never share your personal information used in connection with your account, including but not limited to username, password, or bank card information.

The required information provided when filling in the registration form available on the Application (such as your name, first name, email address, telephone number, your means of payment, i.e. credit card or restaurant vouchers, etc.) must be accurate, complete and regularly updated.

You can change the information you have entered or terminate your User Account at any time and without condition, by going to the Application and following the procedure provided for this purpose.

2.2 Your User Account is strictly personal.

The access codes to your User Account are under your responsibility. They are strictly confidential and must not be communicated in any way whatsoever, to anyone.

In case of unauthorized use of your User Account or any breach of confidentiality and security of your means of identification, you must, without delay, inform us by sending an email to the following address: support-us@sundayapp.com.

Not having the obligation and not having the technical means to verify the identities of people who register on the Application, we will not be responsible in case of usurpation of your identity. However, we will use our best efforts to assist you in case of difficulty.

Section 3 – Terms of Use of the Application and Services

3.1 Use of the Application requires a smartphone and an Internet connection. In order to ensure proper functioning of the Application, it is optimized for the latest versions of Android or iOS and requires activation and authorization of geolocation for its use on your terminal. All hardware and software necessary to access the Application and use the Services are at your expense.

Payment via our Application implies active means of payment and attached to a solvent account.

3.2 You agree to use the Application and the Services in a fair manner, in accordance with their purpose, the applicable legal and regulatory provisions, the GTU and the practices in force.

In this respect, you agree not to, in particular:

create fictitious profiles or use the User Account of others;
provide inaccurate information in the data collection forms of the Application and not regularly update the information in your User Account;
disseminate data, information or content on the Application contrary to the laws and regulations in force, public order or morality;
refer or create links to any content or information available on the Application without our express, written and prior consent;
use any information, content or data on the Application to provide a service that we deem, in our sole discretion, to be competitive with the Application;
sell, trade or monetize any information, content or data on the Application or Services without our express prior written consent
reverse engineer, decompile, disassemble, decipher or otherwise attempt to obtain the source code of any proprietary material used to provide all or any part of the Services on the Application;
use any manual or automated software or devices, robots or other means to access, explore, retrieve or index any page of the Application;
endanger or attempt to endanger the security of our sites or applications, including attempts to monitor, scan or test the vulnerability of any system or network or to breach security or authentication measures without express prior authorization
infringe or use any of our intellectual property rights;
simulate the appearance or operation of our sites or applications, for example by using a mirror effect;
directly or indirectly disrupt or interfere with the Application or Services, or impose a disproportionately large load on the Application’s infrastructure or attempt to transmit or activate computer viruses through or on the Application.

We reserve the right to restrict, suspend, modify, replace, deny access to, or delete, at our discretion and without notice, your User Account in the event of any use of the Services and/or the Application contrary to the GTU.

You will be solely responsible for any damages that may result from any breach of the above listed commitments and will indemnify Sunday from any action or damages that may result.

3.3 The Application may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and other interactive features that allow users to post, submit, publish, display, or transmit to other users or other persons content or materials (collectively, “User Contributions“) on or through the Application.

Any User Contribution you post to the Site (https://sundayapp.com/) or via the Application will be considered non-confidential and non-proprietary. By providing any User Contribution on the Application, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that: (i) You own or control all rights in and to the User Contributions or have a license to do so; (ii) All of your User Contributions do and will comply with these GTU; (iii) You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Sunday or its affiliates, have full responsibility for such content.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Application.

3.4. We take claims of any infringement seriously. We will respond to notices of alleged infringement under applicable laws. If you believe any materials accessible on or from the Application infringe on your rights under applicable law, you may request removal of those materials (or access to them) from the Application by submitting written notification to our agent designated below.

If using the Application in the United States, in accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated agent to receive infringement Notices is: support-us@sundayapp.com.

Section 4 – Intellectual Property

4.1. Our rights

We hold all rights, including intellectual property rights, and authorizations, relating to all content of the Application and Services, including designs, text, graphics, images, photographs, illustrations, visuals, videos, information, logos, trademarks, designs, button icons, software, databases, audio files and other.

We grant you a limited, revocable, non-exclusive, non-transferable and strictly personal right of access to our Application and Services. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material related to the Application or the Services.

You acknowledge that the use of the Services and features of the Application does not entitle you to claim any intellectual property rights of any kind on all or part of them, no assignment or license being granted to you beyond the right of use provided herein.

Our name, the term “sunday,” our logo and all related names, logos, product and service names, designs, and slogans are trademarks of Sunday or its affiliates or licensors. You must not use such marks without the prior written permission from us. All other names, logos, product and service names, designs, and slogans found in the Application or Services are the trademarks of their respective owners.

Any use of all or part of the aforementioned elements, without our express, prior and written authorization and/or that of the Establishments, is strictly forbidden, under penalty of criminal and civil proceedings, subject to the exceptions provided for by the law and regulations in force.

4.2. Your rights

You have the ability to post reviews on the Application about the Establishments where you have used the Application and received our Services.

In the event that your reviews are likely to be protected by an intellectual property right, you warrant that you are the owner of the rights or have the necessary authorizations and you grant a non-exclusive license to Sunday. You hereby authorize Sunday to reproduce and communicate to the public your opinions on all media (in particular, digital – including our Site (www.https://sundayapp.com/), our social networks and our Application – or paper, on our promotional media – including our posters, flyers, etc.), solely for promotional and informational purposes, for the entire world and for the entire duration of the protection of the intellectual property right concerned. The non-exclusive nature of this license to use implies that you also have the right to exploit your intellectual property rights in parallel.

Section 5 – Liability

5.1. The conditions for the realization of the Orders (placing, follow-up, execution) are under the sole responsibility of the EstablishmentInstitution.

We only play a technical role in the context of your use of the Services and the Application and shall in no way act as a vendor of the products of an Establishment, as an employer or guarantor of an Establishment and/or as a guarantor for you.

You are required to organize with the Establishments the legal and financial conditions of your relations for which you will be the only ones responsible, in compliance with the applicable legal and regulatory conditions. Thus, we cannot be held responsible, in particular, for the failure of the Establishments by not complying with their obligations, for any damage caused to you by the products of the Establishments or to any third party, including in particular in the event of intoxication, for any prejudice resulting from your fault or that of an Establishment, or from an event attributable to a third party or to a case of force majeure.

5.2. The information relating to the Establishments (menus, allergens, product availability, conditions of service and any other offers, graphics and photographs illustrating the products of the Establishments, link to a third party site set up by the Establishment) has been communicated by the Establishment where the Order is placed, under its sole responsibility. We do not verify or control this information. We cannot guarantee that this information is complete and up-to-date. It is your responsibility to request any confirmation or additional information directly from the Establishment.

In case of difficulty encountered with an Establishment, we naturally remain at your disposal. To do so, you can contact us through our support mechanisms at our Application or website (https://sundayapp.com/).

5.3. You are solely responsible for the consequences of your use of the Application and of our Services. You are responsible for ensuring that your use of the Application and our Services complies with the legal and regulatory provisions in force as well as with the GTU. We do not give you any guarantee in this respect.

You are also solely responsible for the notices you may leave on our Application. You release us from any action, claim, condemnation or eviction relating to your use of the Application and/or the Services, for any reason whatsoever, in particular on the basis of the infringement of third-party rights or unfair competition, in any country whatsoever. In such a case, you agree to provide any assistance necessary for our defence. In addition, you agree to assume the full cost of any judgment rendered against us, and all costs, expenses, and attorney’s fees that may result for us. More generally, you agree to fully indemnify us for any direct economic and financial consequences that may result.

5.4. You are reminded that the notices you publish are public and communicated to other users of the Application as well as to the Establishments, which you accept.

5.5. You may not blame us for the non-receipt or loss of data transmitted on the Application, on any grounds whatsoever and for any reason whatsoever, and you must ensure that you keep a backup of such data.

5.6. In any event, under no circumstances shall we be liable for any indirect or consequential loss or damage to you or any third party, including without limitation any lost profits, inaccuracy or corruption of files or data or loss of opportunity in connection with the GTU on any basis whatsoever.

5.7. We shall not be liable for any delay in the performance or non-performance of the GTUs justified by a case of force majeure, as defined by the applicable laws.

5.8. Finally, you are aware of the technical hazards and access interruptions that may occur on the Application and more generally related to the Internet. Consequently, we cannot be held responsible for the unavailability or slowdown of the Services and/or the Application.

Section 6 – Legal Notice

The Application is created, upgraded, managed and published by Sunday App, Inc. PBC, whose principal place of business is located 305 Delmont Drive, N.E. Atlanta, GA 30305 (USA), represented by Mr. Victor LUGGER, in his capacity as President.

Email address : support-us@sundayapp.com

Section 7 – Modifications

We reserve the right to modify, supplement or replace the GTU, in which case we will notify you accordingly by way of publishing the new GTU on our SIte or within the Application. Your continuous use of our Application and Services shall be deemed as your acceptance of these changes.

Section 8 – Applicable law – Jurisdiction – Consumer dispute resolution

8.1. These Terms shall be exclusively governed by and construed in accordance with the laws of the Delaware (USA), excluding its conflict of law rules, unless, if you are located in the European Union, the consumer protection regulations of your country of residence contains provisions that are more advantageous to you, in which case those provisions will apply.

8.2. In the event of any dispute or claim relating to the GTU, including without limitation, their formation, validity, interpretation, performance and/or resolution, you and we agree to seek in good faith, an amicable solution. In the absence of an amicable agreement within 30 (thirty) days following notification of the dispute by the most diligent party by registered letter with acknowledgement of receipt, any dispute between the Parties will be subject to the exclusive jurisdiction of the Courts of the Delaware (USA), subject to the mandatory provisions applicable when you are a consumer.

To do so, you can send us any possible complaint by email : support-us@sundayapp.com, or by mail to the following address: 305 Delmont Drive, N.E. Atlanta, GA 30305 (USA).

8.3. When you are a consumer, and in case of a complaint not resolved amicably with us, you can submit the dispute to a consumer mediator. Consumer mediation is available to any person who has a dispute with a professional who has sold him a product or provided a service. Mediation is a method of amicable dispute resolution, free for the consumer and confidential.

Thus, you can refer to the consumer mediator in the country in which you used the Application, within one (1) year from the written complaint you sent us.

You may also attempt to resolve the dispute amicably via the online dispute resolution platform implemented by the European Commission, if applicable, and accessible on the following website: https://ec.europa.eu/consumers/odr/main/