US (QR Code/Handheld) Terms and Conditions

Last updated: April 23rd, 2024

The following terms and conditions (“Terms“) constitute a legal agreement between you (“you” or “the Merchant”) and our entity as set out in the Purchase Order (“Sunday,” or “we“) and govern your access to and use of our technology services. By signing the Purchase Order and/or accessing and/or using services described herein, you agree to these Terms and any other policies or terms referenced in the services.

Sunday offers to improve the experience of customers who frequent your Establishments (the “Users”) by providing services to you (the “Sunday Services“) and by allowing them to benefit from all or part of the Solution.

Section 1 – Definitions*

“Agreement” : Legal document that binds both parties and includes these Terms, the Purchase Order and any special conditions provided by us and accepted by you.
“Anomaly” : any non-compliance of the Solution with the Documentation.
“Beneficiary Companies” : a group of companies, which may belong to the same group or to the same franchise network, which benefit from Sunday Services, and for which you have obtained all the appropriate authorizations to subscribe to this Agreement.
“Back-office Platform” : The Sunday interface (consisting of a website and a supporting mobile application) in Software as a Service (“SaaS”) mode, which we make available to you, and which, associated with the Sunday Applications, allows you to access Sunday Services.
“Card”: any form of credit card, debit card or prepaid card issued under a Card Scheme.
“Card Scheme”: Visa Inc., MasterCard Worldwide, Cartes Bancaires, JCB, American Express, Union Pay International, Diners Club International/Discover Network or comparable bodies which provide Cards and regulate Card acceptance, as supported by the Payment Service Provider and notified by us to you from time to time.
“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.
“Merchant Data”: any files, graphics, images, text, data or other information submitted or made available by Merchant in the course of receiving the Sunday Services and/or collected by Sunday, including, without limitation, Merchant’s name, address, contact information, employee information, products, loyalty program information, logos, promotional information, advertisements, transaction details and other information or material submitted by Merchant to Sunday through the Sunday Services, excluding User Data. Merchant Data may include personal information, whether from Merchant’s employees or otherwise.
“Digital Fee”: the fee paid by the Users for the use of the Solution.
“Documentation” : the documentation we provide to you setting out the terms and conditions of use of Sunday Services.
“Effective Date”: the effective date of the Agreement as stated in the Purchase Order. When no Purchase Order is needed, as per clause 3.3, the Effective Date shall be the date when the relevant services or products are purchased by the Merchant.
“Establishment(s)” : any type of venue open to the public in which you provide to the Users food and/or beverage services (e.g. bar, festival, restaurant, food court, stadium, and similar).
“Fees”: means all amounts owed by Merchant to Sunday for the provision of the Sunday Services.
“Handheld Application”: Sunday payment application accessible on a payment terminal.
“Intellectual Property Rights”: any and all rights under patent law, copyright law, database rights laws, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.
“Managed Payment Facilitator”: a software provider company who facilitates payment transactions, including, without limitation, through managing onboarding of Merchants on behalf of the Payment Service Provider. For the purposes of this Agreement, with respect to transactions processed through the Handheld Application, Sunday acts as “Referrer” and/or “Managed Payment Facilitator” of the Payment Service Provider.
“Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names and all other content provided to Sunday for use with the Sunday Services or uploaded to the Solution.
“Order” : an order placed by a User in one of your Establishment(s). Sunday will inform you of each Order placed via QR Code Application. The payment of the Orders can be done, in whole or in part, via Sunday Applications, at the choice of the Users, by bank Card or restaurant check.
“Payment Link”: a Sunday service that allows Merchants to send a payment link to their customers by electronic means of communication to be used to purchase catering and hospitality services.
“Payment Facilitator”: is a company registered with the relevant Payment Scheme, such as Visa and Mastercard, to facilitate payment transactions on behalf of sub-merchants. For the purposes of this Agreement, and the applicable Payment Scheme Rules, with respect to transactions processed through the QR Code Application, in the event that Sunday acts in the future as the registered “Payment Facilitator”, you will be the “sub-merchant” or “sponsored merchant” in accordance with the terminology used by the relevant Payment Scheme (e.g. for Visa rules a “sponsored merchant”, for Mastercard rules a “sub-merchant”). In this case, Sunday will not be regulated to provide payment services and will rely on the PSD2 commercial agent exclusion to provide Sunday Services to you.
“Payment Scheme” is an entity regulating and/or offering the relevant payment method (including the Card Schemes and alternative payment method providers).
“Payment Scheme Rules”: Payment Scheme Rules means the collective set of by-laws, rules, regulations, operating regulations, procedures and/or waivers issued by the Payment Scheme, as amended and/or supplemented from time to time, and with which you must comply when accepting the relevant payment method. The Payment Scheme Rules specifically include Visa Inc. (referred to as ‘Visa Core Rules and Visa Product and Service Rules’ and currently available at https://www.visaeurope.com/about-us/policy-and-regulation/veor), MasterCard Worldwide (referred to as ‘MasterCard Rules’ and currently available at https://www.mastercard.com/ca/merchant/en/getstarted/BM_Manual.pdf), Union Pay International, Cartes Bancaires, JCB, American Express and Diners Club International/Discover Network rules. Those rules that are not publicly available, shall be communicated to you in accordance with the guidance and instruction of the relevant Payment Scheme when we receive them from the relevant Payment Service Provider.
“Purchase Order”: the order form document executed and entered into between you and us that is incorporated herein.
“Payment Link”: a Sunday service that allows Merchants to send a payment link to their customers by electronic means of communication to be used to purchase catering and hospitality services.
“Payment Service Provider”: a regulated payment service provider that processes the payment transactions between you and the Users. In the event that Sunday acts as the Payment Facilitator and your agent for transactions processed through the QR Code Application, it will mean a regulated payment service provider that processes the payment transactions between us and the Users.
“PCI DSS” or “Payment Card Industry Data Security Standards”: the security standards for transmitting, processing or storing cardholder data and sensitive authentication data, as updated from time to time and published by the Payment Card Industry Security Standards Council (“PCI SSC”) at https://www.pcisecuritystandards.org.
“Platform Merchant Terms”: the agreement among the Merchant, Sunday and the Payment Service Provider which you will have to comply with with respect to transactions processed through the QR Code Application in the event that Sunday acts as a Payment Facilitator and which will be made available to you as and when necessary.
“Pre-Requirements” : technical prerequisites necessary for the installation of our Solution and Sunday Services.
“Purchase Order”: the order form document executed and entered into between you and us that is incorporated herein.
“QR Code Application” : Sunday payment solution accessible through scanning a Quick Response Code (QR Code).
“Referrer”: a company who promotes the services of the Payment Service Provider and/or refer prospective merchants to the relevant Payment Service Provider. For the purposes of this Agreement, with respect to transactions processed through the Handheld Application, Sunday acts as “Referrer” and/or “Managed Payment Facilitator” of the Payment Service Provider.
“Solution”: the Sunday Services, the QR Code Application, and all other products and services Sunday provides to Users and to the Merchant.
“Sunday Applications”: the QR Code Application and the Handheld Application. You are informed of each payment made via Sunday Applications.
“Text-to-Pay”: a service that allows Users to accelerate their checkout, including by sending them a text message with a payment link.
“User”: as explained on page 1 herein, a user means a customer in Merchant’s Establishments to whom the Merchant provides catering services via Sunday Services. We do not act as User’s commercial agent in any circumstances when providing Sunday Services.
“User Data”: data and information, which may include personal information, collected by Sunday via the Sunday Services, such as when a User enters payment information, place an order, enrolls in a loyalty program or requests a digital receipt, and may include without limitation: contact information (such as name, phone number, email address, etc.); information about the transaction; Card information; User purchase history; and location information.

* For the sake of clarity, additional definitions appear in the body of the Terms and Conditions, when they concern a particular Section. Terms used but not defined herein shall have the meanings assigned to them in the Purchase Order.

Section 2 – What we offer

2.1. Sunday will provide the Sunday Services to you in accordance with and subject to the terms of the applicable Purchase Order and of these Terms. Sunday Services are offered on a non-exclusive basis.

2.2. With the exception of maintenance periods and Force Majeure cases, 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. For transactions through the Handheld Application, you agree to accept Payment Service Provider’s specific terms to receive the Sunday Services. If as part of Sunday Services, you use the Handheld Application you will have to rent or purchase a payment terminal and accept special terms and conditions relating to this hardware.

3.2. In the event that Sunday acts as the Payment Facilitator and your agent for transactions processed through the QR Code Application, you agree to comply with the Payment Service Provider’s specific terms, including the Platform Merchant Terms which will be provided to you by Sunday at the time in order to receive the Sunday Services.

3.3. The Merchant understands that part of the Sunday Solution, including, but not limited to the Payment Link product, may not be subject to a Purchase Order and will be purchased directly on the Back-office platform. Relevant terms and conditions for such products will be available on the Back-office platform to the Merchant before any purchase is made.

3.4. If you wish to enable Text-to-Pay to allow Users to accelerate their checkout, you must provide Sunday with the API key to your existing third party booking provider. You understand and agree that Sunday may send communications to the Users who have made an online reservation at your Establishment, for example to provide them with a payment link to improve their payment experience.

Section 4 – How to use Sunday Services

4.1. To access the Sunday Services:

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.
You understand that we will not be liable for any damages that may result from your failure to comply with this section.

4.2. To use of Sunday Services and the Solution you must:

accept and comply with the Agreement (including the Documentation);
comply with all applicable laws and the Payment Scheme Rules as amended from time to time;
acknowledge that the Payment Schemes has the right to enforce any provision of the Payment Scheme Rules and to prohibit you from engaging in any conduct that the Payment Schemes deem could injure or could create a risk of injury to Payment Schemes;
acknowledge that in the event that Sunday acts as Payment Facilitator we will be required by the Payment Service Provider to monitor your activity to ensure compliance with the Payment Scheme Rules; you consequently agree to duly and timely cooperate with our requests for information resulting from this monitoring or otherwise.
provide all necessary documents required by us, which may include (but not limited to) business license, personal identification, tax identification, information regarding VAT status, alcohol and food license(s) (where relevant), banking documentation, all information required by the relevant Payment Service Provider for the purposes of AML/KYC checks, and all information required for the accurate calculation and preparation of invoices by us. You are solely responsible for providing us with, and maintaining, accurate bank account information;
where necessary, provide us on an ongoing basis with the current address of each of your Establishments and offices, all “doing business as” (DBA) names used by you and a complete description of goods sold and services provided to the Users;
comply with the Pre-Requirements to ensure the technical compatibility of your equipment with our Solution. In the event of a change in your Point of Sale (“POS”) device, you must inform us at least one (1) month in advance so that we can make the necessary technical adjustments, if possible. However, we reserve the right to terminate the Agreement in the event of a change of POS service or a change that is incompatible with the Pre-Requirements in accordance with Section 5;
not submit for payment any transaction you know or ought to have known is illegal or brand damaging for the relevant Payment Scheme;
agree that as part of providing the Sunday Services, Sunday shall disclose Merchant Data and/or User Data to our applicable Payment Service Providers;
only submit for payment transactions that are in respect of goods and/or services provided by you to the User;
not impose any minimum or maximum transaction value, unless the applicable laws or regulations and/or the relevant Payment Schemes expressly require this;
not add any amount over the advertised or normal price to a transaction, unless applicable laws or regulations expressly require that a merchant be permitted to impose a surcharge. Any surcharged amount if allowed must be included in the transaction and not collected separately;
not discriminate against the use of Cards or other payment methods in any way;
not accept a transaction relating to goods and/or services which fall outside the description of your business without our prior written consent;
not accept a transaction which was not undertaken directly between you and the User;
not accept or process transaction in order to give the User cash unless the Payment Service Provider has specifically given its consent to do so;
not refund transactions to a Card which was not originally used to make such transaction, and you must not under any circumstances, accept money from a User in connection with processing a refund to the User’s account;
not, access or use the Sunday Services (and transactions may not be submitted for processing) for prepaying the products/services for which the delivery date is in part, or in whole, more than 6 months after the date the transaction;
follow the Payment Scheme Rules for authenticating payments and comply with any applicable law requirements;
Keep a copy of all electronic records relating to the order and delivery of your products and/or services for a period of 18 months. This must include any shipping details, delivery invoices and all contact you had with your customers/buyers;
cooperate with us and the Payment Service Provider in respect of any issues arising out of a breach or potential breach of security in relation to the holding of Confidential Information;
provide the customer service to the Users;
not transfer or attempt to transfer your financial liability by asking or requesting Users to waive their dispute rights;
agree to make changes to your website, if applicable, or otherwise, that we or the Payment Service Provider deem necessary or appropriate to ensure that you remain in compliance with the Payment Scheme Rules;
publish your privacy policy on your website;
keep up to date the information relating to your business and your Establishment(s). You must also provide and update prices, menus, available products and allergens in your products available to Users through the Solution.
fulfill the Orders in accordance with the rules, including sanitary rules, that apply in your jurisdiction;
Save for the Digital Fee mentioned in section 6.4.below, the Merchant may not impose any surcharges or other fees to Users for the use of the Sunday Solution.

4.3. You represent and warrant that (i) you have all the rights and authorizations required to provide your services and/or to subscribe to Sunday Services; (ii) that you have not had a contract which was terminated by an acquirer and/ or at the direction of the Payment Scheme or a government body or agency and that you have never been asked to terminate an agreement with an acquirer; (iii) that you have never experienced excessive chargebacks; (iv) that you have never been subject to any Payment Scheme’s monitoring programme(s); (v) that you have never committed fraud and (viiii) that you will not submit for payment transactions outside of the prescribed jurisdictions agreed with us in writing.

Section 5 – Duration and Termination

5.1. The term of the Agreement will begin on the Effective Date and shall continue until all Purchase Orders have expired or been terminated.

5.2. The Agreement may be terminated by either Party if the other Party breaches any material term of the Agreement and such breach remains uncured for five (5) days following written notice from the non-breaching Party. In such an event, without prejudice to the non-breaching Party’s other rights and remedies, the latter may terminate the Agreement effective immediately without further liability or obligation to the breaching Party. A material breach of the Agreement shall include, but shall not be limited to, the Merchant changing its POS service to one that is not compatible with the Solution, in violation of the Pre Requirements.

5.3. The Agreement may be terminated by us immediately and without any notice period, in the following cases:

if the Payment Scheme or the Payment Service Provider request us to terminate this Agreement with you;
if the Payment Service Provider terminates its agreement with us for any reason;
If the Payment Service Provider terminates its agreement with you for any reason;
if the Payment Scheme deregister us as a Payment Facilitator, as and when applicable;
if the Payment Service Provider cease to be a member of either Payment Scheme for any reason, or if the Payment Service Provider fails to have a valid license with either Payment Scheme to use the relevant payment method accepted by you;
if your activity is deemed, at our discretion or at the direction of the Payment Schemes or the Payment Service Provider, to be fraudulent or otherwise wrongful or in violation of the Payment Scheme Rules;
if the Payment Service Provider considers the percentage, number or amount of fraudulent transactions submitted by you or the number of chargebacks in relation to your business to be excessive;
you submit for processing transactions on behalf of third-party entity other than that agreed in writing with us and the Payment Service Provider;
if you begin selling items which have not been approved by us or if there is a direct or indirect change of control in your entity or any of your parent company(ies); and/or
for six (6) consecutive months you fail to submit transactions for payment.

5.3. Termination shall be notified in accordance with the terms of the Purchase Order.

5.4. In the event of termination of the Agreement, for any reason whatsoever, it is agreed that:

You will no longer be able to use the Sunday Services or the Solution and will cease to use all associated communication media;
Sunday will collect all accrued charges and fees in accordance with the Purchase Order, including on any payment made within your Establishment(s), via the Sunday Applications, between the notification of the termination of Sunday Services and their effective suspension; and
Any funds due to you for your services through the appointed Payment Service Provider will be settled under the normal settlement terms, subject to (i) any deductions agreed with us and, where applicable, (ii) any conditions for settlement set out in your direct agreement with the Payment Service Provider.
Those sections that by their nature should logically survive shall remain in force after any termination of this Agreement (including, but not limited to, the Confidentiality and Property sections).

Section 6 – Fees

6.1. The Purchase Order shall define all applicable Fees and payment terms. These financial conditions may change from time to time, subject to a thirty (30) days’ notice to you.

6.2. We may perform additional services for you. These services are carried out on the basis of a prior fee quote and are subject to additional invoicing.

6.3. In case of question or disagreement concerning invoicing, you can contact us at any time by email at 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 Users a Digital Fee or any other amounts for the use of the Sunday Services.

6.5. The Merchant shall not present any Digital Fee as a convenience fee, surcharge or other fee related to payment processing such as a merchant assessed fee.

Section 7 – Ownership: Merchant Data, User Data & Intellectual Property

7.1. Intellectual Property Rights of Sunday

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 and the Sunday Applications) 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.
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 make no other warranties. In particular, we do not warrant (i) that Sunday Services will be error-free and/or available on an uninterrupted basis or that Sunday will be able to correct all errors in Sunday Services, (i) 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. This section defines Sunday’s sole liability and the sole and exclusive remedy available to you in the event of an action for infringement of Intellectual Property Rights.

7.2. Ownership: Merchant Data, Customer Data & your Intellectual Property Rights

Merchant owns all Merchant Data. Merchant hereby grants to Sunday a non-exclusive, royalty-free, fully paid up, perpetual and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Sunday Services including the development of potential offerings or other future services under consideration by Sunday (whether developed independently by Sunday or through a third party). Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all applicable laws) of Merchant Data, the means by which Merchant Data is acquired, and any transfer and use of Merchant Data outside of the Sunday Services by Merchant or any third party authorized by Merchant. Merchant represents, warrants and covenants that it has all rights necessary to upload the Merchant Data to the Solution and to otherwise have such Merchant Data used or shared, as applicable, by Sunday in relation to the Sunday Services. Merchant will not upload or store any data or materials containing any such information in violation of this clause. To the extent Merchant Data constitutes Personal Information, the Parties’ respective obligations are set out in the data processing addendum accessible at https://sundayapp.com/dpa/.
Merchant acknowledges and agrees that, in the course of providing the Sunday Services to Merchant, both Sunday and Merchant will collect, store and use User Data. Merchant shall be solely responsible for compliance with its own legal obligations in relation to such collection, storage and use of User Data pursuant to applicable laws and rules, including putting in place any additional controls (e.g., notice, consent) and governance in relation to such use. Each Party’s use of User Data shall be in compliance with the applicable law and rules. To the extent User Data constitutes personal information, the Parties’ respective obligations are set out in clause 9 below and in the data processing addendum accessible at https://sundayapp.com/dpa/.
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 the Users in your Establishment(s), (iii) to provide you with data and business reporting and (iv) to improve Sunday Services and our Solution, you expressly allow us to access your POS and your aggregators/middlewares and to collect and process information relating to all the transactions carried out in your Establishment(s) for the purposes described in this clause.
Notwithstanding anything to the contrary in the Agreement, Sunday may create anonymized or aggregated data from Merchant Data, User Data and personal information that does not identify Merchant, your employees, any of Users or any other identifiable individual. Such aggregated or de-identified data may include data analysis across Sunday, our merchant customers and partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Sunday Services and Solution, the development of new services or otherwise. Upon creation, as between Merchant and Sunday, Sunday shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to Merchant or restriction of any kind.
Merchant hereby grants Sunday a nonexclusive, royalty free right and license to use and display Merchant’s Marks on its website, marketing collateral and other public disclosures, or to otherwise identify Merchant as a customer of Sunday. Sunday obtains no rights in the Merchant Marks except for the limited right described in this sub-section, and Merchant retains all right, title and interest in and to the Merchant Marks.
Merchant agrees to indemnify Sunday, in particular, against any action, request or claim that would be made by any third-party to whom the Merchant Maks and more generally, all content that you can communicate or upload to the Solution, would infringe. Merchant also guarantees 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.

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. We, and the Payment Service Provider used for Sunday Services, shall also not be liable for any delays in receipts of funds or errors in debit and credit entries caused by Third Parties, including but not limited to Payment Schemes. For transactions processed through the QR Code Application, in the event where we act the Payment Facilitator, as between us and the Payment Service Provider, we will be liable (i) for all acts, omissions, cardholder disputes and other cardholder customer-related issues caused by you, and (ii) for each payment transaction processed by you. We will therefore hold you liable each time, whether we act as a Payment Facilitator or as the ISO, where our liability is invoked by the Payment Service Provider due to your breach of this Agreement and/or the Payment Scheme Rules, and you will indemnify us for all our losses thus incurred. We will not transfer or attempt to transfer our financial liability by asking or requesting the User to waive their dispute rights.

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 Merchant Data that you communicate to us, whether they relate to your activity, to that of your Establishment(s) or to the Beneficiary Companies;
for obtaining all the appropriate authorizations to carry out your activity and allow the Beneficiary Companies or your Establishment(s) to benefit from the Solution and the Sunday Services;
in the event of identity theft, fraud, unauthorized use of your Merchant Account, or in the event of misappropriation by a third party of the data in said account to use the Solution, as a consequence of any breach by you of the Terms;
for fulfilling Orders placed by the Users via the QR Code Application. We only provide a tool to facilitate order taking, order tracking, and the processing of transactions. You are solely responsible for the conditions under which the catering services are provided to the Users (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);
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,
for complying with all applicable regulations, in particular, in terms of product safety, health rules and consumer law. In this respect, you are, in particular, 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 you provide to the Users, in accordance with the regulations applicable at the time the Order is placed by them;
for complying with all Payment Scheme Rules and applicable laws, both as amended from time to time, in connection with your use of the Sunday Services;
where applicable, for complying with the requirements imposed by the Payment Service Provider; and/or

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 and cardholder data

9.1. Sunday is firmly committed to protecting the privacy of your personal information and the personal information of the Users. By using Sunday Services and the Solution, you acknowledge and agree that the collection, use, and disclosure of such personal information by Sunday are governed by (i) our user privacy policy accessible at https://sundayapp.com/privacy-policy/ and (ii) our merchant privacy policy accessible at https://sundayapp.com/privacy-policy-waiters-personnel/.

9.2. To the extent that Sunday processes Users personal data as a “data processor” or “service provider” under certain data privacy or protection laws, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on data protection (“GDPR”), the UK Data Protection Act 2018 as amended,the California Consumer Privacy Act, and the California Privacy Rights Act, Sunday’s collection and use of personal information is also subject to our data processing addendum accessible at https://sundayapp.com/dpa/.

9.3. Cardholder data security

Sunday shall comply with all applicable PCI DSS requirements for the duration of the Agreement, to the extent that it possesses, stores, processes, or transmits cardholder data on behalf of the Merchant.
The Merchant acknowledges that Sunday uses trusted third-party payment partners for the storage of cardholder data. Sunday shall ensure that these partners are committed to being fully compliant with all applicable PCI DSS requirements.
Sunday is responsible for the security of the cardholder data in its possession or otherwise stored, processed, or transmitted on behalf of the Merchant, or to the extent that it could impact the security of the cardholder data environment.

Section 10 – Confidentiality

10.1. The following in particular shall be considered confidential: information relating to the Solution, Sunday Services, your services, know-how, commercial, industrial or organizational strategy, prospects, financial data and any information contained in documents marked “confidential” or whose confidential nature was indicated in writing at the time of their communication or which are confidential in nature (the “Confidential Information“). Each of the Parties agrees, both during the performance of the Terms and for a period of five (5) years after its expiration for any reason whatsoever, to keep the Confidential Information secret.

Consequently, each Party undertakes to the other during this period to:

to communicate the Agreement only to those members of its staff who need to know about it for the exclusive purposes of providing or receiving, as applicable, the services set out in this Agreement. In this respect, each party shall ensure that the members of its staff, their representatives and their external service providers comply with this section;
take the measures it takes with respect to its own confidential information to prevent its communication or disclosure to third parties.

10.2. This confidentiality obligation shall not apply to information that should be considered Confidential Information, but which the relevant Party can demonstrate:

It was already in its possession, and/or in possession of its staff, representatives, agents or service providers on the day of their disclosure by the other Party without the latter being bound by an obligation of confidentiality;
It was already in the public domain on the day of its disclosure or became so after this date by other than its actions or that of its staff, its representatives, agents or contractors;
That the information in question has been communicated on a non-confidential basis by a source other than the other Party, its personnel, representatives, agents or service providers who are not subject to any prohibition (in particular, legal or contractual) on revealing this information;
It has been authorized in writing for disclosure by the other Party;
It has been subject to a disclosure obligation based on, among other things, a law, regulation, order or judgment rendered by a judicial or administrative authority; and/or
That its disclosure is necessary for the preservation of its interests in judicial or administrative proceedings.

Section 11 – Insurance

Each of the Parties to the Agreement shall be able to justify, at any time and upon request of the other Party, the subscription of a civil liability insurance policy, with a solvent and reputable insurance company, covering the risks resulting from all damages, whatever they may be, which could be caused to the other Party by itself or its employees within the framework of the execution of the Terms. You shall ensure that your Establishment(s) and/or the Beneficiary Companies comply with this obligation.

Section 12 – Force majeure

Neither Party will be liable for any loss, damage or delay resulting from any event beyond such Party’s reasonable control (a “Force Majeure”). Each Party will promptly notify the other upon becoming aware that any Force Majeure has occurred or is likely to occur and will use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. However, if the suspension due to Force Majeure is longer than fifteen (15) days, the Agreement may be terminated immediately and without notice by either Party without compensation on either side.

Section 13 – Compliance with Laws and Anti-Bribery

13.1. Compliance with Laws

The Parties shall: (i) comply with all applicable laws, rules, statutes and regulations, including all payment network rules; (ii) not undertake, nor cause nor permit to be undertaken, any activity which either: (a) is illegal under any applicable laws, decrees, promulgations, rules, or regulations in effect in any country; or (b) would have the effect of causing the other Party to be in violation of any applicable laws, rules, statutes, and regulations in any other country where the Sunday Services will be provided.

13.2. Anti-Bribery

The Parties undertake to, and shall ensure that all persons with whom they have any relationship for the performance of the Agreement (” Associated Person”), including, but not limited to, any employee, director, officer, agent, co-contractor, partner or subcontractor, shall comply, at all times, with all applicable anti-corruption laws, decrees, regulations, codes or regulatory guidelines, including the United States Foreign Corrupt Practices Act (FCPA) (the “Applicable Provisions”) and shall not perform any act that may place the other Party in violation of the Applicable Provisions. The Parties declare and warrant that neither it nor any Associated Person has violated or breached the Applicable Provisions or acted in such a manner as to place the other Party in breach of the Applicable Provisions.

Section 14 – Miscellaneous

14.1. The Agreement shall be governed by the laws of the state of Delaware. In the event of a dispute or claim arising from the Agreement, including, without limitation, its creation, validity, interpretation, performance and/or resolution, the Parties undertake to seek an amicable solution in good faith.

14.2. This Agreement contains the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior negotiations, representations and understandings. In the event of any conflict between this Agreement and any Purchase Order, unless otherwise agreed, the Purchase Order shall prevail. In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.

14.3. We reserve the right to modify the Agreement at any time, in particular the description of the Sunday Services. If these changes are significant, we will inform you using reasonable means, for example, by publishing a notice relating to these modifications on our Website or by sending you an informative email with the relevant notice.

14.4. Neither Party may assign any of its rights or obligations under this Agreement or any Purchase Order without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Nevertheless, each of the Parties shall be free to assign or transfer the Agreement, whether by sale of its business, partial contribution of assets, merger, absorption or transfer of shares, to any of its subsidiaries or affiliates, after written notification to the other Party.

14.5. The personnel of each of the Parties assigned to the performance of the Agreement shall remain, under all circumstances, under the exclusive authority, direction and supervision of their employer. Consequently, such personnel shall continue to be subject to the statutes, collective agreements and management methods of their employer. They shall in no way be considered as employees of the other Party.

14.6. The Parties are, and shall remain throughout the term of the Agreement, independent business partners and professionals, each assuming the risks of its own business and always acting as such. The Parties declare, as necessary, that the Agreement expressly excludes any desire on their part to create a company, association or any other structure whose purpose is to pool skills or share any profits in any form whatsoever or to enter into an agreement whose characteristic is to constitute a hierarchy between them or to establish any subordination of one to the other.

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

14.8. It is expressly agreed between the Parties that in case of invalidity of any of the provisions of the Agreement, the other provisions of the Agreement will remain in full force and effect. The Parties shall then negotiate a clause replacing the nullified clause and having the same economic effect.

14.9. The failure of a Party to rely on any provision of the Agreement shall in no way constitute a precedent or a general waiver to rely on such provision or any other provision.

14.10. Pursuant to the provisions of applicable law, the Parties expressly assume the risks associated with a change in circumstances unforeseeable at the time the Agreement was entered into, each Party being responsible for the related contingencies.