US Terms and Conditions 

Last updated: April 1st, 2023

The following terms and conditions (“Terms“) constitute a legal agreement between you (“you” or “your” or “the Merchant”) and our entity as set out in the Purchase Order (“Sunday,” “we,” or “us“) and govern your access to and use of the Solution. By signing the Purchase Order you agree to these Terms and any other policies or terms referenced in the Purchase Order. You also acknowledge that you have read, understood and accepted our privacy policy (the “Privacy Policy“).

 

Sunday offers to improve the payment experience of customers who frequent your Establishments by providing the following services to you (“Sunday Services“).

By displaying our QR codes in your Establishment, you allow your customers using the Solution (“Sunday Users”) to benefit from all or part of the Solution:

• “Pay at Table” service: access your menu of items, pay for Orders and any additional service charges and obtain Order payment receipts,
• “Order and Pay” service: access your menu items, place an Order, pay for Orders and service charges, and obtain Order payment receipts,
• “Review” service: provide comments on your Establishment,
• “Loyalty” service: benefit from your marketing offers.

We will take care of: 

• the integration of the Solution to your point of sale (“POS”) or to your aggregators and middleware/software;
• authorization for payment for Orders entered into by Sunday Users in real time at the end of which you will receive a notification; 
• the troubleshooting as well as upgrading and maintenance of the Solution.

Sunday also provides you with a back-office virtual platform where you can: 

• customize the interface that the Users  access, 
• add, remove or modify your menu and offers to the Sunday Users,
• access records of all Orders via the Solution,
• access analysis on the use and performance of the Solution
• access a reviews/loyalty portal.

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” : Legal document that binds both parties and includes these Terms, the Purchase Order, the Privacy Policy, any special conditions provided by us and accepted by you.
• “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 Sunday Users to pay for the Merchant Services via their smartphone.
• “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 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” » : means all data that you provide to us in connection with the use of Sunday Services. 
• “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” : means the documentation we provide to you setting out the terms and conditions of use of Sunday Services.
• “Effective Date” refers to the effective date of the Agreement as stated in the Purchase Order.
• “Establishment(s)” : any type of venue open to the public in which you provide to the Sunday Users food and/or beverage services (e.g. bar, festival, restaurant, food court, stadium, and similar).
• “Fees” refers to any combination of or collectively Activation Fees, Service Fees, and/or Transaction Fees.
• “Order” : an order placed by a User in one of your Establishment(s).
• “Purchase Order” refers to the order form document executed and entered into between you and us that is incorporated herein.
• “Payment Service Provider” : means 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.
• “Solution” means the Sunday Services, the Application, and all other products and services Sunday provides to Sunday 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.

Section 2 – What we offer 

2.1. Sunday offers the Sunday Services 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 support-us@sundayapp.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. To use Sunday Services, you must:

• accept and comply with our Terms and Conditions (including the Documentation), our Privacy Policy and the Purchase Order, 
• 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 12.

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 Sunday Users through the Solution. 

4.2.2. We will inform you of each Order placed via our Application. You must fulfill the Orders in accordance with the rules, including sanitary rules, that apply in your jurisdiction.

4.2.3. Sunday Users may pay for Orders, in whole or in part, via our Application, at the choice of the Users, by bank card or restaurant check. 

4.2.4. You may not impose any surcharges or other fees to Sunday Users for the use of the Sunday Solution.

4.2.5. We will inform you, in real time, of the payments made by Sunday Users.

Section 5 – Duration

5.1. The Agreement is entered into for an initial period of three (3) months (the “Initial Period“) from the date of execution of the Purchase Order.

5.2. After the Initial Period, the Agreement shall be tacitly renewed for equivalent periods of three (3) months (the “Renewal Periods“) until terminated by either Party. 

Termination shall be notified:

• By Sunday, by any means with at least fifteen (15) days prior to the expiration of the Initial Term or any Renewal Term,
• by yourself, at any time to Sunday and without minimum prior notice, by sending an e-mail to that effect at the following address: goodbye@sundayapp.com.

Section 6 – Financial Conditions

6.1. The Purchase Order details the fees to be charged by Sunday for the use of the Sunday Services by Merchant and the terms and conditions for their payment. 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 support-us@sundayapp.com. 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 Sunday Users a service fee or any other amounts for the use of the Sunday Services, such as a convenience fee.

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 Services, to the Solution (including the software and hardware infrastructure implemented or developed by our teams, namely our 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. We do not give any other guarantee. 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 Sunday Users in your Establishment(s), (iii) to provide you with statistical data in order to improve the management of Sunday 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 Sunday Users via the 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 Sunday 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.

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 – Termination/Amendment of the Agreement

12.1. Termination for fault

The Agreement may be terminated in the event of breach of any of its obligations by either Party. It may also be terminated in the event that the Merchant changes a POS service that is not compatible with the Solution. The non-breaching Party will send the defaulting Party, by email, a formal notice to perform the obligation it is responsible for. The defaulting Party will then have a period of thirty (30) days from the receipt of the formal notice to perform the obligation it is responsible for, except that such period will be five days if it involves the payment of funds owed to the non-breaching party. If it fails to do so, the Agreement shall be terminated automatically and without prejudice to any damages that may be due to the non-breaching Party. 

12.2. Termination of the Agreement

Subject to the provisions of Section 12.1, the Parties may terminate the Agreement under the conditions set forth in Section 5. In the event of termination of the Agreement, for any reason whatsoever (Section 5 or Section 12.1), it is agreed that:

• You will no longer be able to use Sunday Services or the Solution and will cease to use all associated communication media;
• Sunday may debit any amounts owed by you pursuant to the Purchase Order between the notification of the termination of Sunday Services and their effective suspension; and
• Any funds due to you for your services, subject to any deductions agreed under this Agreement, will be paid following the termination date. 

12.3 Amendment of the Agreement

We reserve the right to modify at any time, at our sole discretion, all or part of the Agreement, and particularly the description of the Sunday Services and our fees 

If you continue to use the Sunday Services once these modifications have been made, you are deemed to accept these modifications.

If these modifications 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.

Section 13 – Force majeure

In case of force majeure, as defined by the applicable law and jurisprudence, the responsibility of each Party shall be excluded. 

If, as a result of a case of force majeure, the Parties are forced to interrupt their relations, the performance of the Agreement shall be suspended for the time during which the Party is unable to perform its obligations. 

However, if this interruption is longer than fifteen (15) days, the Agreement may be terminated immediately and without notice by either Party without compensation on either side. 

Section 14 – Miscellaneous

14.1. As the Agreement has been entered into intuitu personae, it may not be assigned or transferred under any circumstances, nor may the rights and obligations contained therein be transferred to any person, in any form whatsoever, by either Party without the express, prior and written consent of the other Party. 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. 

14.2. 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. 

14.3. 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. 

14.4. Sunday represents and acknowledges that its activity for Merchant does not represent the entirety of its income. 

14.5. 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. 

14.6. 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. 

15.7. 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. 

Section 16 – Applicable law – Jurisdiction 

The Agreement is subject to the laws of the state of Delaware, which shall be the sole Applicable Law. 

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.