Last updated August 6, 2019
Welcome to the Sundaily Inc. (“Sundaily”) website located at www.getsundaily.com (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Site and our product purchasing services accessible via our Site. To make these Terms easier to read, the Site and our services are collectively called the “Services.”
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services.
No Medical Advice
The products and the claims made about specific products on or through the Site have not been evaluated by the United States Food and Drug Administration and are not intended to diagnose, treat, cure or prevent disease. The information provided on this Site is for informational purposes only and is not intended as a substitute for advice from your physician or other health care professional or any information contained on or in any product label or packaging. You should not use the information on this site for diagnosis or treatment of any health problem or for prescription of any medication or other treatment. You should consult with a healthcare professional, and carefully read all information provided on or in any product label or packaging, before using any medication or nutritional, herbal or homeopathic product (including regarding any interactions between any medication you are currently taking and such products), before starting any diet or exercise program or before adopting any treatment for a health problem, or if you have or suspect you might have a health problem.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the modified Terms whenever we modify them because if you continue to use the Services after we have posted the modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use This Service
You may use the Services only if you are 18 years or older and capable of forming a binding contract with Sundaily and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”). You must create an Account to be able to order products or make purchases through the Services.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
Products for Personal Use Only
The products available on the Site, and any samples thereof we may provide to you, are for personal use only. You may not sell or resell any of the products or samples thereof that you purchase or otherwise receive from us. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that we believe, in our sole discretion, may result in the violation of these Terms.
Payment and Order Terms
The Services enable you to order products from Sundaily. The amounts due and payable by you for any product that you purchase through the Services (including applicable taxes, shipping and handling) will be presented to you before you place your order. If you place an order for any products via the Services, you agree (a) that Sundaily may charge your credit card for verification, pre-authorization and payment purposes, and (b) to bear any additional charges that your bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. Your order is not binding on Sundaily until accepted and confirmed by Sundaily.
Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription
All amounts are payable and charged: (i) for one-off purchases, at the time you place your order; and (ii) FOR SUBSCRIPTION-BASED PURCHASES, AT THE BEGINNING OF THE SUBSCRIPTION AND, BECAUSE EACH SUBSCRIPTION RENEWS AUTOMATICALLY UNTIL YOU CANCEL IT, AT THE TIME OF EACH RENEWAL UNTIL YOU CANCEL. You must cancel your subscription before it renews to avoid the billing of the fees for the next subscription period. YOU CAN CANCEL THE RENEWAL OF YOUR SUBSCRIPTION AT ANY TIME by contacting us by email at firstname.lastname@example.org or by logging into your online account. You will not receive a refund for the fees you already paid for your current subscription period and you will continue to receive products ordered until the end of your current subscription period.
When ordering, it is your responsibility to ensure that all information submitted to Sundaily is accurate. You may not be able to submit corrections after you place an order, and, if accepted, any corrections submitted after you place an order may significantly delay shipping of your order.
Changes to Orders
We reserve the right to limit the order quantity on any product, to extend the delivery timeline for any reason after the order has been placed and accepted, and/or refuse to ship product to you for any reason. If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card charges unless you have made a reasonable attempt at resolving the matter directly with Sundaily.
Sundaily reserves the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Sundaily deems appropriate in its sole discretion. Sundaily also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. Sundaily will either not charge you or refund the charges for orders that we do not process or cancel.
We want all Sundaily customers to be happy. If you have any issue with your order, or would like to return a product, please reach out and we’ll make it right! Note we cannot accept returns of opened product.
Risk of Loss, Return Policies, and FAQ
Title to products passes from Sundaily to you upon shipment from Sundaily’s facility. For information on order processing and shipping, please see our Shipping FAQ. Please be aware that our shipping times are only estimates and are subject to change.
If you desire to return any product you ordered through the Services, please contact us at email@example.com.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, transferable license, with the right to grant sublicenses, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Sundaily does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Sundaily and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Sundaily a non-exclusive, transferable, sublicenseable, worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by Sundaily on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content contained in your Account by specifically deleting it. However, in certain instances some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Sundaily
Subject to your compliance with these Terms, Sundaily grants you a limited, non-exclusive, non-transferable, non-sublicensable license to view, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Sundaily Referral Program Terms And Conditions
Sundaily may modify these Referral Terms at any time, in its sole discretion. If Sundaily does so, Sundaily will let you know either by posting the modified Referral Terms on www.getsundaily.com (the “Site”) or through other communications. It is important that you review the modified Referral Terms whenever they are modified because, if you continue to use participate in the Sundaily Referral Program after Sundaily has posted the modified Referral Terms on the Site, you are indicating to Sundaily that you agree to be bound by the modified Referral Terms. If you do not agree to be bound by the modified Referral Terms, then you may not use participate in the Sundaily Referral Program anymore.
The Sundaily Referral Program is offered by Sundaily and provides Referrers (as defined below) with the opportunity to refer eligible individuals to purchase products from Sundaily (the “Sundaily Referral Program”). A “Referrer” is an Sundaily customer who (a) has a valid customer account in good standing on the Site, (b) is a legal resident of the United States and at least eighteen (18) years of age and (c) receives an invitation from Sundaily to participate in the Sundaily Referral Program (an “Invitation”) that contains a unique referral link (the “Unique Referral Link”). The Sundaily Referral Program will also specify the Referral Credit and Referred Reward (each, as defined below) and the manner(s) in which the applicable Referrer can distribute his or her Unique Referral Link to his or her friends. For instance, a Referrer may be able to generate an automatic email or message via social media to a potential customer containing the applicable Unique Referral Link. You represent and warrant that (i) you have the necessary consent from each such potential customer to whom you send a message regarding the Sundaily Referral Program and (ii) you will at all times remain compliant with CAN-SPAM, the TCPA and any other applicable laws.
A “Referred Customer” means an individual who:
- Clicks on a Unique Referral Link to place an order on the Site before the Sundaily Referral Program end date, communicated when Sundaily sent the applicable Referrer the Invitation;
- Does not cancel such order prior to shipment and does not return or seek a refund for such order within ninety (90) calendar days (the “Return Period”); and
- Is a new (and not a returning or existing) Sundaily customer who is a legal resident of the United States and at least eighteen (18) years of age. For the avoidance of doubt, any individual who has previously created a customer account on the Site cannot be a Referred Customer.
For every Referred Customer that use a Referrer’s Unique Referral Link to satisfy the above conditions, the applicable Referrer will receive a referral credit, which will be specified in the Invitation received by such Referrer (the “Referral Credit”). Unless otherwise set forth in an Invitation, for each Invitation that a Referrer receives, the Referrer is only eligible to receive up to three (3) Referral Credits (i.e., after such Referrer has referred nine (9) Referred Customers, such Referrer will not be eligible for any additional Referral Credits even if additional Referred Customers satisfy the above conditions using such Referrer’s Unique Referral Link).
Each Referred Customer may also receive a referred reward, which will be specified in the Invitation to the Referrer whose Unique Referral Link such Referred Customer used to create an account on the Site (the “Referred Reward”). An individual may only create one (1) customer account on the Site and may only receive one (1) Referred Reward for becoming a Referred Customer, even if the individual receives and attempts to click through multiple Unique Referral Links.
The Referral Credit and Referred Reward may consist of a promotional account credit, promotional code, promotional gift card or other similar discount or promotion that may be redeemed on the Site, which will be automatically sent by email to the applicable Referrer or Referred Customer within thirty (30) days after the above conditions have been met. Unless otherwise set forth in the applicable Invitation, all Referral Credits and Referred Rewards will only be valid for redemption for one (1) year from the date on which Sundaily sends such Referral Credit or Referred Reward to the applicable Referrer or Referred Customer and must be applied on such Referrer’s or Referred Customer’s next purchase. ALL REFERRAL CREDITS AND REFERRED REWARDS EXPIRE AFTER ONE (1) YEAR.
Referral Credits and Referred Rewards are only valid for use on the Site and are not transferable or redeemable for cash. Referral Credits and Referred Rewards may contain additional limitations, as set forth in the applicable Invitation. Sundaily reserves the right to withhold, deduct or revoke Referral Credits and Referred Rewards obtained through the Sundaily Referral Program in the event that Sundaily determines or believes that the receipt of the Referral Credit or Referred Reward was in error, fraudulent, illegal or in violation of these Referral Terms or any of the Additional Sundaily Terms. All Sundaily promotions run for a limited time only and are subject to change at Sundaily’s discretion.
We may terminate your eligibility to earn a Referral Credit or Referred Reward or terminate your account on the Site if you take any of the following actions:
- Open multiple accounts, including with different email addresses, in order to generate additional Referral Credits or Referred Rewards;
- Refer customers using spam, display advertising, sponsored links, unsolicited emails, automated systems or bots, scripts or automatic dialers or links on message boards or forums.
- Use false names, impersonate other people, or otherwise provide false or misleading information to us;
- Offer incentives to others who register new accounts;
- Violate these Referral Terms or any of the Additional Sundaily Terms;
- Participate in the Sundaily Referral Program where doing so would be prohibited by any applicable law or regulations;
- Use the Sundaily brand in connection with disparaging or defamatory content, content that promotes racism, bigotry, hatred, discrimination or physical harm against any group or individual, offensive, abusive intimidating or harassing content, content that is sexually explicit, obscene and/or contains nudity, any political and/or religious statement, any content containing image s or reference to illegal drugs, alcohol, tobacco, weapons or firearms or content that violates someone else’s privacy;
- Sell or otherwise attempt to transfer your Unique Referral Link;
- Violate or infringe the rights of any third party; and
- Pay to advertise your Unique Referral Link or the Sundaily Referral Program, including via Google, Facebook, Twitter, Bing and Craigslist.
You understand and agree that any communications you send with respect to the Sundaily Referral Program are being sent by you as an individual, on your own behalf, and not on behalf of Sundaily. You are not acting as an agent of Sundaily nor will you be deemed an employee of Sundaily. As such, while, as a Referrer, you can and should include your Unique Referral Link in communications about the Sundaily Referral Program, you must not, without Sundaily’s written permission, include any Sundaily trademarks or other Sundaily materials in such communications. The content of all of your communications about the Sundaily Referral Program must be yours alone. You will not misrepresent or embellish your relationship with Sundaily or write, say or post anything you know is untrue or may be misleading. And, if someone has asked you to stop sending them messages about Sundaily, you will respect that wish.
By participating in the Sundaily Referral Program, you agree that Sundaily will have no liability and that you will indemnify and hold Sundaily harmless for any claim, action, liability, loss, injury or damage to you or any other person or entity due in whole or in part, directly or indirectly, by reason of your participation in the Program. You will not settle any claim without the prior written consent of Sundaily. Further, you agree that Sundaily is not responsible for faulty referral links, any error, omission, interruption, defect or delay in transmission, order processing, or communication; technical or mechanical malfunctions; errors in these Referral Terms, in any Sundaily Referral Program-related materials; human-processing error; failures of electronic equipment, computer hardware or software; damage to your equipment, computer hardware or software, or inaccurate information, whether caused by equipment, programming, human error, or otherwise. UNDER NO CIRCUMSTANCES WILL Sundaily BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE PROGRAM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF YOU ARE FROM NEW JERSEY, THIS SECTION IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.
General Prohibitions and Sundaily’s Enforcement Rights
You agree not to do any of the following:
- Use the Services in any way, or upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Services, or any individual element within the Services, Sundaily’s name, any Sundaily trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Sundaily’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Client’s computer systems, or the technical delivery systems of Client’s providers;
- Attempt to probe, scan, or test the vulnerability of any Sundaily system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Sundaily or any of Sundaily’s providers or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Sundaily or other generally available third party web browsers;
- Use any meta tags or other hidden text or metadata utilizing a Sundaily trademark, logo, URL or product name without Sundaily’s express written consent;
- Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
- Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
You acknowledge and agree that any offers made available through the Service are subject to change at any time and from time to time.
Colors and Other Features
We have endeavored to be as accurate as possible in describing and displaying the colors and other features of the Products made available for purchase through the Service; however, there is no warranty or guarantee that the colors, quality, product descriptions, or other content of the Service is accurate, complete, reliable, current, or error-free.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com or by logging into your online account. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, the provisions entitled “Agreement to Terms,” “Feedback,” “Content and Content Rights,” “General Prohibitions and Client’s Enforcement Rights,” “Links to Third Party Websites or Resources,” “Termination,” “Warranty Disclaimers,” “Indemnity,” “Limitation of Liability,” “Dispute Resolution” and “General Terms.”
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE EXPLICITLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OFFERED FOR SALE ON THE SITE, EXCEPT SOLELY AS SET FORTH IN OUR RETURN POLICY FAQ. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IF YOU ARE A NEW JERSEY RESIDENT, THIS “WARRANTY DISCLAIMERS” SECTION IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.
You will indemnify and hold harmless Sundaily and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content; (ii) your User Content; or (iii) your violation of these Terms.
IF YOU ARE A NEW JERSEY RESIDENT, YOUR OBLIGATIONS UNDER THIS “INDEMNITY” SECTION ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.
Limitation of Liability
The Services & Content
NEITHER Sundaily NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Sundaily HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL Sundaily’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO Sundaily FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Sundaily, AS APPLICABLE.
Sundaily EXPRESSLY DISCLAIMS ALL LIABILITY FOR CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION AND NON-COMPLIANCE WITH ANY PRINTED DIRECTIONS.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL Sundaily BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO Sundaily' PRODUCTS, EVEN IF Sundaily HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Sundaily' LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT UPON WHICH A CLAIM IS BASED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Sundaily AND YOU.
IF YOU ARE A NEW JERSEY RESIDENT, THIS “LIMITATION OF LIABILITY” SECTION IS INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.
These Terms and any action related thereto will be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Sundaily agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (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”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Massachusetts and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Sundaily are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Sundaily otherwise agree in writing, 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 this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
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 “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822) The arbitrator will be either a retired judge or an attorney licensed to practice law 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 and Sundaily otherwise agree, 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 you and Sundaily submit 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.
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. Sundaily will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
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, Sundaily 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)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Sundaily changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Sundaily’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Sundaily in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Sundaily and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Sundaily and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Sundaily’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Sundaily may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Sundaily under these Terms, including those regarding modifications to these Terms, will be given by Sundaily: (i) via email to the email address you provide us via the Services; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Sundaily’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sundaily. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Sundaily at email@example.com.