Last Updated: May 1, 2021
PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TERMS”) CAREFULLY BEFORE USING OUR WEBSITE(S), MOBILE APPLICATIONS (TOGETHER WITH THE WEBSITE, TO THE EXTENT EACH IS GOVERNED BY THESE TERMS, THE “SITE”), OR THE SOLUTION OR RELATED SERVICES PROVIDED IN CONNECTION WITH THE SITE OR OTHERWISE GOVERNED BY THESE TERMS (TOGETHER WITH THE SITE, THE “SERVICES”), WHICH ARE OWNED OR OPERATED BY SUNDAY, INC. (“SUNDAY”, “WE”, “OUR” OR “US”).
Intellectual Property Rights
The Services and the content of the Services, including, but not limited to, text, graphics, images, audio clips, digital downloads, data compilation or code, are owned by Sunday, its licensors or other providers of such material and are protected by United States and international intellectual property or proprietary rights laws.
All trademarks, service marks and trade names of Sunday are trademarks or registered trademarks of Sunday or their respective owners. You may not use such marks without Sunday’s or the respective owner’s prior written consent or as provided below in “Third Party Links and Sites”.
You acknowledge and agree that the Services are provided under a term limited, non-transferable, nonexclusive license, and not sold, to you. You may only use, and shall only use, the Services solely in accordance with all laws and regulations applicable to you and your business. You do not acquire any ownership interest in the Services under these Terms or any other rights thereto other than to use the Services in accordance with these Terms. Sunday and its licensors reserve and retain their entire right, title and interest in and to the Services, except as expressly granted to you in these Terms.
Through your use of the Services, you may be able to submit, upload, publish or otherwise make available to Sunday textual, audio or visual content, including commentary and feedback (the “Content”). As between you and Sunday, any Content that you provide remains your property. However, by providing Content to Sunday, you grant Sunday and all of its subsidiaries, affiliates, successors and assigns a worldwide, perpetual, royalty-free, irrevocable, sublicensable, non-exclusive and transferable right to use, publish, reproduce, modify, adapt, publicly display and otherwise use your Content, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. Such right shall survive the termination of these Terms.
The Services may permit you to or you may otherwise submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service (collectively, “Feedback”). You (a) grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction and (b) agree we may freely use such feedback for any lawful purpose without restriction. Such right shall survive the termination of these Terms.
We may update, modify, upgrade, remove or add functionality or otherwise change the Services at any time in our sole discretion.
We may make changes to these Terms from time to time in our sole discretion. When we do so, we will post the most current version of the Terms on the Site or otherwise through the Services and, if a revision to the Terms is material, we will also notify you of the new Terms (for example, by email to the address provided by you when registering or through a notification on or through our Services). Changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. If you do not agree to the revised Terms, you should discontinue your use of the Services.
Third-Party Links and Sites
The Services may link to other websites operated by third parties, including, without limitation, those operated by Third Party Providers. We have no control over these linked sites, each of which has a separate privacy and data collection practices independent of Sunday. We are not responsible for, do not endorse and do not accept any responsibility for the availability, contents, products, services or use of any third-party site, any website accessed from a third-party site or any changes or updates to such sites. These linked sites are provided to you only for your convenience and you access them at your own risk. You agree that we are not responsible for any loss or damage you may incur from dealing with any such third-party site. You should contact the site administrator for the applicable third-party site if you have any concerns regarding such links or the content located on any such third-party site.
Third Party Services
The Services may contain features designed to interoperate with products, applications, or services not provided by us, including, without limitation, third party point of sale payment systems or devices (collectively, each a “Third Party Service”). To use such features, you may be required to obtain access to such Third Party Service from its provider (each ,a “Third Party Provider”), and may be required to grant us access to your account(s) on such Third Party Service or provide other information to enable the appropriate integration between the Services and applicable Third Party Service. Customer shall provide, and shall cause the applicable Third Party Provider to provide, us with any reasonably requested information and materials needed to integrate the Third Party Service with the Services.
If you choose to use a Third Party Service with the Services, you grant us permission to allow the Third Party Service and applicable Third Party Provider to access any data provided to Sunday in connection with the Services as required for the interoperation of that Third Party Service with the Services. We are not responsible for any disclosure, modification or deletion of such data resulting from access by any Third Party Service or Third Party Provider. Any acquisition by you of a Third Party Service, and any exchange of data between you and any Third Party Service or its Third Party Provider, is solely between you and the applicable Third Party Provider.
We do not warrant or support Third Party Services. Further, we cannot guarantee the continued availability of any Service features that interoperate with a Third Party Service, and may cease providing them without being in breach of this Agreement, if for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to us.
The initial term for your subscription to use the Services will be set out in the ordering document incorporating these Terms or otherwise made available to you when you sign up for the Services.
To terminate your account, please contact Sunday via firstname.lastname@example.org. We may terminate your use of the Services at any time for any reason, and we may prohibit your use of the Services at any time in our sole discretion.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SUNDAY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUNDAY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED OR THAT THE SERVICES, OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SUNDAY DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF MATERIALS ON OR THROUGH THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.
SUNDAY DOES NOT GUARANTEE THE SUITABILITY, SAFETY, ELIGIBILITY, OR ABILITY OF THIRD PARTY PROVIDERS. AS A USER OF THE SERVICES, IT IS SOLELY YOUR RESPONSIBILITY TO DETERMINE IF A THIRD PARTY PROVIDER WILL MEET YOUR NEEDS AND EXPECTATIONS. SUNDAY IS NOT OBLIGATED TO PARTICIPATE IN DISPUTES BETWEEN YOU AND YOUR CUSTOMERS. YOU AGREE THAT IN NO EVENT SHALL SUNDAY BE RESPONSIBLE FOR THE CONDUCT OR SERVICES OF ANY THIRD PARTY PROVIDER, INCLUDING ANY CLAIM, LOSS, DAMAGE, OR LIABILITY ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDER.
Limitation of Liability
SUNDAY SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) THAT RESULT FROM YOUR USE OF, OR YOUR INABILITY TO USE, THE SERVICES, ANY SERVICES PROVIDED BY A THIRD PARTY PROVIDER, OR ANY GOODS OR SERVICES RECEIVED OR NOT RECEIVED IN CONNECTION WITH THE SERVICES, EVEN IF SUNDAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUNDAY WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDER.
IN NO EVENT SHALL SUNDAY’S AGGREGATE LIABILITY EXCEED THE GREATER OF (I) THE AMOUNTS ACTUALLY PAID BY YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; OR (II) ONE HUNDRED DOLLARS ($100).
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, SUNDAY’S LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SUNDAY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE ABOVE SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
You agree to indemnify and hold harmless Sunday and its officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) your violation of these Terms or any applicable law or regulation, whether or not referenced herein, (ii) your violation of any rights of any third party, including your customers or Third Party Providers, or (iii) the use or misuse of the Services (including negligent or wrongful conduct) by you or any other person accessing the Services using your account. The obligations in this section shall survive the termination of these Terms.
Electronic Notices and Disclosures
You acknowledge and agree that Sunday may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures through the Services or by emailing it to you at any email address provided to Sunday by you. Such notices or other disclosures shall be considered received by you following the posting through the Services or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
Governing Law; Dispute Resolution
These Terms shall be governed by, and construed in accordance with, the laws of the State of Georgia, without reference to its choice and conflict of law rules. Subject to the arbitration provisions below, exclusive venue for any action arising out of or in connection with this agreement shall be in state or federal courts, as applicable, in Atlanta, Georgia. The parties each hereby consent to such jurisdiction and venue and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Sunday shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
Subject to applicable law to the contrary, you agree that any cause of action arising out of or related to the use of the Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
This obligations in this section shall survive the termination of these Terms.
These Terms, together any ordering document incorporating their term along with any rules, guidelines or policies published through the Services, constitute the entire agreement between Sunday and you with respect to your use of the Services. If there is any conflict between the Terms and other rules or instructions posted, the Terms shall control. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. You may not assign your rights or obligation under these Terms without the prior consent of Sunday. Sunday’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that Sunday may have pursuant to any intellectual property laws or other laws. All rights and remedies available to Sunday, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by these Terms. There shall exist no right of any person, other than you and Sunday, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms. This obligations in this section shall survive the termination of these Terms.
USER TERMS OF SERVICE
These user terms of service (these “Terms”) governs your use of our websites ([www.sundayapp.com] and any sub-domains) and/or the our mobile application (collectively, the “Service”). “We” or “us” or “our” or “Sunday” means [Beep Beep, Inc., a Delaware corporation, d/b/a Sunday]. “You” or “your” means the person indicating acceptance of these Terms or using the Services.
Note: THESE TERMS INCLUDE YOUR AGREEMENT TO ARBITRATE MOST DISPUTES WITH US, WHICH LIMITS YOUR RIGHTS TO SUE IN PUBLIC COURTS AND WAIVES YOUR RIGHT TO JOIN A CLASS ACTION LAWSUIT. IT ALSO INCLUDES A RIGHT TO OPT OUT. PLEASE SEE SECTION 9 FOR MORE INFORMATION.
Note: Your subscription will automatically renew unless you tell us to cancel your subscription before the start of the next subscription period as described in Section 4.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY ACCESSING AND USING THE SERVICE, YOU AGREE TO THESE TERMS.
- USE OF THE SERVICE
- Use of the Service. Subject to the terms and conditions of these Terms, we grant you a limited, worldwide, non-exclusive, non-transferable right during the term of these Terms to use the Service solely in connection with your personal, non-commercial use to pay for goods and services rendered to you by a commercial establishment. Your rights to use the Service are subject to any limitations on use of the Service we make available to you (e.g., geographic usage limits) (collectively, the “Scope Limitations”) and your rights to use the Service are contingent upon your compliance with the Scope Limitations and these Terms. You are solely responsible for your conduct, any data uploaded into the Service, or otherwise provided for processing by the Service (collectively, “Your Data”), the content of Your Data and legality and means by which you acquired it, and all communications with others while using the Service. You acknowledge that we have no obligation to monitor any information on the Service, but we may remove or disable any information that you make publicly available on the Service at any time for any reason or for no reason at all. We are not responsible for the availability, accuracy, appropriateness, or legality of Your Data or any other information you may access using the Service.
- Acceptable Use. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) rent, lease, or, except as explicitly set forth in these Terms, otherwise permit third parties to use the Service; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is false, misleading, illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system; (g) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, access, retrieve, index, “data mine”, engage in harvesting of email addresses or other personal information, unsolicited emailing, phone calls or mailings, spoofing, flooding, overloading, spidering, screen scraping, database scraping, or any similar or equivalent manual process to access copy or monitor any portion of the Services or any content on the Services or in any way reproduce or circumvent, avoid, bypass, remove, or deactivate the navigational structure or technical measures or presentation of the Services or its contents; (h) reverse look up, trace or seek to trace any information on any other user of or visitor to the Services to its source; or (i) use, display, “frame” or “mirror” any part of the Services, our names, any of our trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page, without prior written authorization from us. You agree that you will not use the Services in any manner that could damage, disable, overburden or impair the Services or interfere with any other party’s use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. You will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service or its underlying software. You will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Service and will include all such notices on any copies.
- Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version”). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may never make them generally available. We have no liability for any harm or damage arising out of or in connection with a Beta Version.
- Reservation of Rights. We retain all right, title, and interests in and to the Service, its underlying technologies, and all related intellectual property rights, including without limitation any modifications, updates, customizations, cards, apps, or other add-ons. Your rights to use the Service on are limited to those expressly set forth in these Terms. We reserve all other rights in and to the Service and its underlying technologies. There are no rights granted by implication, estoppel or otherwise.
- Service Availability. You are responsible for making Your Data available that is necessary for us to provide the Service. Actual service coverage, speeds, locations and quality may vary. We will attempt to provide the Services at all times, except for periods for maintenance and repair or in the case of emergencies or outages. The Services may be subject to unavailability for a variety of factors beyond our control including, without limitation, emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Services or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users, data, our systems, or the Services. The accuracy and timeliness of data received is not guaranteed.
- RIGHT TO RESTRICT OR TERMINATE ACCESS
- Termination. We may deny, suspend, terminate or restrict your access to all or part of the Services without notice for any reason or no reason.
- Post-Termination Obligations. Following termination, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, we may delete all of your data, and other information stored on our servers. Sections 1.2, 1.5, 2.2, 4.2, 5, 7, 8, 9, and 10 will survive termination.
- CHANGE TO THE SERVICES AND TERMS.
- Service Updates. We may from time to time, in our sole discretion, develop and provide Services updates, which may include upgrades, bug fixes, patches or other error corrections, or new features. We may add or remove features or requirements and we may suspend or stop a feature altogether. You agree that we have no obligation to provide any updates or to continue to provide or enable any particular features or functionality.
- Terms Updates. We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting a notification within the Services or by contacting you via email at the address you provided. As your next use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide all registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account. Your use or continued use of the Services following the posting or notice of any changes to these Terms shall constitute your acceptance of the changed Terms.
- Data Transmission. You acknowledge that use of the Service involves transmission of Your Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your login name and password from access or use by unauthorized parties, and are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach at [email@example.com].
- Your Data. Your Data is your property. We use data in accordance with our privacy policies found at www.Sunday.com/privacy. You grant us a non-exclusive, worldwide, perpetual, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Your Data as required to provide or perform the Service, account management and support services, and technical services, and to publish, display, and distribute de-identified information derived from Your Data and from your use of the Service for any lawful purposes, including, without limitation, improving our products and services, developing new products and services, and developing, displaying, and distributing benchmarks, analysis and similar reports, provided that we do so in accordance with all applicable laws.
- FEEDBACK AND OTHER CONTENT. The Service may permit you to or you may otherwise submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. You agree we may freely use such feedback for any lawful purpose without restriction.
- DISCLAIMERS. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. WE DO NOT MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. WE DO NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE OR DOCUMENTATION.
- INDEMNIFICATION. You agree to defend, indemnify and hold us, our affiliate companies, and each of our respective directors, officers, employees, contractors, agents, successors and assigns harmless from any claim or demand, including reasonable attorneys’ fees, arising out of or relating to (i) any violation of these Terms by you; (ii) Your Data or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any applicable laws or rights of another; (iv) your negligent or more culpable conduct; or (v) your use of the Services. We may, at our own expense, elect to assume the exclusive defense and control of any third party claim otherwise subject to defense by you. You may not settle or compromise any claim subject to this section without our prior written consent in our sole discretion.
- LIMITATIONS OF LIABILITY
- Disclaimer of Indirect Damages. UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“SUNDAY PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM PERSONAL INJURY, DEATH, LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES.
- Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL ANY SUNDAY PARTIES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) TOTAL AMOUNTS PAID BY YOU UNDER THESE TERMS DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM OR (B) FIVE HUNDRED DOLLARS ($500).
- Exception. Some states or jurisdictions may not allow the exclusion or the limitation of liability. In such states or jurisdictions, the Sunday Parties’ liability to you shall be limited to the full extent permitted by law.
- Independent Allocations of Risk. Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of these terms between the parties. This allocation is reflected in the pricing offered by us to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this section will apply notwithstanding the failure of essential purpose of any limited remedy in these terms.
- ARBITRATION AGREEMENT
- Mandatory Arbitration; Exceptions and Opt-Out. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at [firstname.lastname@example.org] or by regular mail to 305 Delmont Drive Atlanta, GA 30305 within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Services. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of Georgia and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are both waiving the right to a trial by jury and to participate as a plaintiff or class member in any purported class action or representative proceeding.
- No Class Actions. FURTHER, UNLESS WE OTHERWISE AGREE IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. IF A DECISION IS ISSUED STATING THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF ANY LIMITATIONS SET FORTH IN THIS AGREEMENT TO ARBITRATE ON THE RIGHT TO ARBITRATE CLAIMS ON A CLASS OR REPRESENTATIVE BASIS, OR AS PART OF A CONSOLIDATED PROCEEDING, AS TO A GIVEN CLAIM FOR RELIEF, THEN THAT CLAIM (AND ONLY THAT CLAIM) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN THE NORTHERN DISTRICT OF GEORGIA. ALL OTHER CLAIMS WILL BE ARBITRATED.
- Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
- Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and may provide a separate form for Demand for Arbitration for residents of a particular state, such as California. The arbitrator will be either a retired judge or an attorney licensed to practice law with at least 15 years of experience and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
- Arbitration Location and Procedure. Unless you agree with us otherwise, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
- Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
- Changes. Notwithstanding anything to the contrary in these Terms, if we change this “Arbitration Agreement” section after the date you accepted these Terms or access our Services, you may reject any such change by sending us written notice (including by email to [email@example.com]) within 30 days of the date such change became effective, as indicated in the “Effective Date” listed at the beginning of these Terms or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Arbitration Agreement” section as of the date you accepted these Terms, or accessed our Services.
- Survival. This “Arbitration Agreement” section will survive any expiration or termination of these Terms.
- CONSENT TO ELECTRONIC COMMUNICATIONS
- Updating your Consent. If you later decide that you do not want to receive certain future communications electronically, please send an email to [firstname.lastname@example.org] or a letter to 305 Delmont Drive Atlanta, GA 30305. You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from Sunday. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. Sunday will need to send you certain communications electronically regarding the Services. You will not be able to opt out of those communications – e.g., communications regarding updates to the Terms or information about your data. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to and accepted by you. If you withdraw your consent to receive communications electronically, certain Services may become unavailable to you.
- GENERAL PROVISIONS
- Access by Competitors. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
- Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of these Terms.
- Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under these Terms (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under these Terms nor release you of your liability under these Terms. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under these Terms without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, these Terms will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
- Notices. Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address at the address provided by the other party and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
- Force Majeure. We will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond our reasonable control.
- Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Georgia, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.
- Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under these Terms will not preclude the enforcement by the party of any other right or remedy under these Terms or that the party is entitled by law to enforce.
- Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Service under these Terms is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
- Headings. Headings are used in these Terms for reference only and will not be considered when interpreting these Terms.
- Entire Agreement. These Terms contain the entire agreement of the parties with respect to the subject matter of these Terms and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of these Terms.