Terms & Conditions
Effective From: 20 May 2022
We’re pretty easy-going, but even we need to tell you some boring legal information from time to time. Below you’ll find the tedious but super important terms and conditions of using the Sugary platform.
BY ACCESSING OR USING THE APP YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS. If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE APP OR SERVICES.
1. ABOUT THE TERMS
2. ABOUT THE APP
2.1. License to Use Subject to your compliance with the Terms, Sugary grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the App and Services, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the App as provided by Sugary, in the manner permitted by the Terms. 2.2. Set-Up and Operating Requirements In order to use the Services, you must: have internet access (e.g., WiFi or 3G /4G with a data plan); download the App on your smartphone or tablet; register for an Sugary account (as set forth in more detail below in the “Accounts” section below); provide and maintain complete, accurate and up-to-date account information, including contact information for your Sugary gift recipients. If any of the above requirements are not met, you will not be able to use some or all of the Services. 2.3. Acknowledgements YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT: SUGARY DOES NOT AND CANNOT GUARANTEE THAT THE APP WILL BE CONTINUOUS OR ERROR-FREE. IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR APP IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE APP. YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE APP AND YOUR CONTENT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES. 2.4. Modifications and Updates to the App and Services Sugary reserves the right, in its sole discretion, to modify or discontinue offering the App and/or Services, in whole or in part, including any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Your/ the User Content at our sole discretion at any time without prior notice to you. We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms. You agree that Sugary has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions. 2.5. International Users The App is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the App from any territory where the App or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the App from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3.1. Account Registration While certain App Content and Services are publicly available, you must register for a user account before you are able to use certain of the Services. You may register to create an account directly via the App. You may not register for an account on behalf of any person (other than yourself). No person or entity may have more than one active account at any given time. 3.2. Account Set-Up Your account and account profile page will be created based upon the information you provide to us. You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Please note that the name and contact information that you submit when you register will be shared in accordance with your selections in your account settings when you share Your Content. When you create your account, you will be asked to provide and verify your phone number. You agree to immediately notify Sugary of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Sugary cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. 3.3. Account Suspension and Cancellation You may cancel your account at any time. We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our App and Services at any time for any reason, and (ii) screen or delay the posting or delivery of Your Content. Sugary reserves the right to suspend or terminate your account or your access to the App if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent. We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms. If your account is deactivated or cancelled, Sugary will have the right, but not the obligation to delete Your Content. If Sugary has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Sugary’s reasonable satisfaction.
4. TERMS OF SALE
5. USER CONDUCT GUIDELINES
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1. The App The App, Products and Services, including all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the App, Products and Services, and all intellectual property rights therein are the exclusive property of Sugary and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the App or Services. Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Sugary (the “Sugary Marks”) are the property of Sugary, and that you are not permitted to use the Sugary Marks without our prior written consent. You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the App or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Sugary or the intellectual property owner, as applicable. This foregoing license is subject to modification or revocation at any time at Sugary’s sole discretion. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Sugary or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved. 6.2. Your Content By uploading, sharing or storing Your Content, you hereby grant Sugary a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display Your Content in any and all media as necessary to provide the Services to you, including, customer support services, and otherwise operate the App, including for product development and de-bugging purposes. We may modify or adapt Your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Your Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, broadcast, publicly perform, publish and display your name and other information in connection with Your Content as described herein or elsewhere on the App, subject to any applicable data protection laws. Sugary does not claim any ownership rights in Your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Sugary under these Terms. You acknowledge and agree that you are solely responsible for Your Content, and for any consequences thereof, including the use of your Content by other Users. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Your Content, and that neither Your Content, nor Sugary’s use of Your Content (or any portion thereof) on or through the App or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation. 6.3. Feedback We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the App (“Feedback”). You may submit Feedback by e-mailing us, at support@onSugary.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Sugary. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Sugary or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Sugary all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Sugary’s rights in such improvements, enhancements and modifications.
7. THIRD PARTY TERMS
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1. Warranties by Users You represent and warrant to Sugary that: you have the power and authority to accept and agree to the Terms; you own or control all of the rights necessary to grant the rights and licenses granted herein; you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Your Content or otherwise in connection with your access to or use of the App and Services; the exercise by Sugary of the rights granted by you hereunder will not cause Sugary to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date. 8.2. Disclaimers EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE APP, PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, SUGARY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE APP, PRODUCTS OR SERVICES, OR THAT USE OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY APP CONTENT. 8.3. Limitation of Liability YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW: THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE APP IS AND REMAINS WITH YOU. WITHOUT LIMITING THE FOREGOING, SUGARY DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE APP, (II) THE ACTS OR OMISSIONS OF ANY OTHER USER OR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP, AND (III) ANY APP CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE APP. YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE APP, SUBMITTING AND TRANSMITTING YOUR CONTENT, COMMUNICATING OR INTERACTING WITH OTHER USERS AND ACCESSING, VIEWING OR DOWNLOADING THE USER CONTENT OF OTHER USERS ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE SUGARY AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING. IN NO EVENT WILL SUGARY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUGARY 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. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, SUGARY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100). 8.4. Basis of the Bargain YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SUGARY AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. 8.5. Indemnification To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Sugary its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the App, including any and all features, functionality, tools, content and promotions available on and through the App, (ii) Your Content, (iii) any interactions with any other User, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct. 8.6. Obligation to Defend. You agree that, at Sugary’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Sugary may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Sugary (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action. 8.7. No Implied Indemnity. No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND Sugary HAVE AGAINST EACH OTHER ARE RESOLVED. 9.1. Governing Law The Terms shall be governed by and interpreted in accordance with the laws of the State of New York without regard to conflict of law principles. 9.2. Arbitration Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in the State of New York before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity. 9.3. Jurisdiction and Venue Subject to the above arbitration provisions, you and Sugary agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the App (collectively, “Disputes”) in the federal or state courts located in the State of New York and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Sugary retains the right to submit a Dispute to any court of competent jurisdiction. Sugary also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party. 9.4. Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST SUGARY ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND SUGARY OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. 9.5. Future Amendments to this Section Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Sugary. We will notify you of amendments to this section by posting the amended Terms on the App. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the App immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Sugary in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).