Effective Date: November 17, 2023
These Terms of Use (“ToS”) between Sunbird Messaging Inc. (“Sunbird”, “us”, or “we”), and any person or entity (“you”, “your”, or “User”) who downloads, accesses, registers an account for, views or otherwise uses Sunbird’s mobile application and related services (the “App”). Sunbird and User are collectively referred to as the “parties.” The disclaimers, terms and conditions in these ToS are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application disclosed by Sunbird or its suppliers, developers, business partners or affiliates, including through additional processes or other means, and shall be incorporated by reference. In the event of a conflict between these ToS and any additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application shall control.
THESE TERMS INCORPORATE BY REFERENCE SUNBIRD’S TERMS OF SERVICE (THE “GENERAL TERMS”) AND PRIVACY POLICY.
If you use or access any of the Services on behalf of an entity or individual, you represent and warrant that you have the authority to bind that entity or individual. Our App is not intended for those under the age of 13 – if you access our App, you represent and warrant that you are at least 13 years of age. By using the App, you represent that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the App with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the App and agree to these ToS. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these ToS and to fully indemnify and hold us harmless if the Minor breaches any of these ToS. If you are not at least 13 years old, you may not use the App at any time or in any manner or submit any information to us or the App.
BY CLICKING THE ACCEPTANCE BUTTON (INCLUDING ANY “I AGREE” OR “I ACCEPT” BUTTON) OR BY REGISTERING AN ACCOUNT, LOGGING INTO AN ACCOUNT, DOWNLOADING, USING OR OTHERWISE ACCESSING ANY PART OF THE APP, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THESE TOS AND THE GENERAL TERMS AND PRIVACY POLICY. CAPITALIZED TERMS SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THESE TOS OR THE GENERAL TERMS. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USER MUST SELECT THE BUTTON INDICATING NON-ACCEPTANCE AND IMMEDIATELY CEASE USE OF THE APP. IN SUCH EVENT, SUNBIRD WILL PROMPTLY CANCEL THIS TRANSACTION AND USER SHALL NOT REGISTER AN ACCOUNT, LOG INTO AN ACCOUNT, USE OR OTHERWISE ACCESS ANY PART OF THE APP AT ANY TIME.
Sunbird is willing to license, not sell, the App to you only upon the condition that you accept all the terms contained in these ToS. By signing up with, downloading or using the App, you indicate that you understand these ToS and accept all of its terms. If you do not accept all the terms of these ToS, then Sunbird is unwilling to license the App to you.
You may not use the App and may not accept to the terms and conditions of these ToS if (a) you are not of legal age to form a binding contract or (b) you are a person barred from receiving the App under the laws of the United States or any other country, including the country in which you reside or from which you use the App.
You may obtain a copy of the General Terms by visiting https://www.sunbirdapp.com/terms-of-service and Privacy Policy by visiting https://www.sunbirdapp.com/privacy-policy.
NOTICE REGARDING MESSAGES
BY ACCEPTING THESE TERMS, YOU AGREE AND HEREBY PROVIDE YOUR CONSENT, THAT WE MAY: (i) CONTACT YOU AT YOUR EMAIL ADDRESS AND/OR MOBILE PHONE NUMBER BY CALL OR SMS, AND/OR VIA PUSH NOTIFICATIONS ABOUT THE STATUS OF YOUR ACCOUNT; AND (ii) TO CONTACT YOU VIA YOUR ACCOUNT FOR PUSH NOTIFICATIONS. FOR THE PURPOSES OF THIS PARAGRAPH, REFERENCE TO “SMS” SHALL MEAN BOTH SMS AND MMS MESSAGES
1. App Terms
- Description. The App is proprietary to Sunbird and is protected by intellectual property laws and international intellectual property treaties. User’s access to the App is licensed and not sold. Sunbird hereby reserves all rights not expressly granted to User, including, but not limited to, the right to alter, modify, update, enhance, improve or create derivative or collective works incorporating the App.
- Use Rights. Subject to the terms of these ToS, Sunbird grants to User, and User hereby accepts, a limited, nonexclusive, nontransferable, revocable right and license to use the App for User’s personal use. User is not permitted to use the App in excess of the usage limitations set by us from time to time or in any manner not expressly authorized by these ToS or applicable law.
- Ownership of the App. User acknowledges that all ownership of the App belongs to Sunbird and its licensors. Neither User nor User’s employees may copy, sell, license, share or otherwise transfer the App to any other user(s).
- Functionality. Sunbird may discontinue or alter any aspect of the App, restrict the time the App is available or the amount of use permitted. User agrees that such measures shall be taken in Sunbird’s sole discretion and without liability to User or any third party.
- Wireless Services Charges. You are solely responsible for any fees and costs associated with any Internet connection utilized by the App. Check the terms of your agreement with your carrier to determine if your carrier restricts or imposes fees or charges for message transmissions or terms that would otherwise prohibit your use of the App.
- Content. The App facilitates the transmission of text, jpegs, .gifs, audio files, or other types of content uploaded and/or transmitted via the App (collectively, “Content”).
- Conduct. You are solely responsible for the following:
i. your use, including any erroneous use, of the App and its functionality;
ii. your use of the App in compliance with all applicable laws and regulations;
iii. your public or private transmission of Content; and
iv. your selection of recipients for your Content, whether in error or not.
- Receipt of Content. You may receive Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any Content, including errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content transmitted via the App. User acknowledges that the App is acting as a passive conduit for transmission of Content and is not undertaking any obligation or liability relating to any your activities on the App. You shall retain all rights in any Content, records or messages viewed or sent by User using the App
- Prohibited Conduct. You agree not to use the App to:
i. upload or transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable;
ii. harm minors in any way;
iii. impersonate any person or entity, including, but not limited to, a Sunbird employee or representative, moderator, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
iv. attempt to disguise the origin of any Content transmitted through the App;
v. upload or transmit any Content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
vi. upload or transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
vii. upload or transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation;
viii. upload or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
ix. interfere with or disrupt the servers or networks connected to the App, or disobey any requirements, procedures, policies or regulations of networks connected to the App;
x. violate any applicable local, state, national or international law;
xi. “stalk” or otherwise harass another user of the App or any other person; or
xii. collect, store or use personal data about other users.
- Accessibility of the App. User understands and agrees that from time to time the App may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions with the technology hardware used in accessing the App; (ii) periodic maintenance procedures or repairs which Sunbird may undertake from time to time; or (iii) causes beyond the control of Sunbird.
- Suspension or Termination of Access. User’s privilege to use the App depends on User’s compliance with the guidelines set forth in these ToS. In our sole discretion, we may terminate User’s account for any reason. Without limiting the foregoing, we may also revoke User’s registration privileges and take any other appropriate measures to enforce these guidelines if we believe that User has engaged in any activity deemed by us to violate or be in conflict with the spirit or intent of these ToS.
- Equipment. User is solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User’s use of the App, including, telecommunications and internet access connections and links, web browsers or other equipment, and programs and services required to access and use the App.
- Updates. User acknowledges and agrees that Sunbird may update the App with or without notifying you.
2. Limitations
- Security. User shall be solely responsible for the security, confidentiality and integrity of all information that User receives, transmits through or stores on the App. User shall be solely responsible for any authorized or unauthorized access and use of User’s account by any person. User has the affirmative responsibility to monitor and control access to User’s account information. If at any time User learns or suspects that User’s account information has been disclosed or otherwise made known to any person other than User, User will immediately notify Sunbird. User will bear all responsibility for the confidentiality of User’s passwords and all use or charges incurred from use of the App through User’s account(s).
- Privacy Policy. Sunbird may collect, store, and use data collected from User in accordance with Sunbird’s Privacy Policy located at https://www.sunbirdapp.com/privacy-policy (the “Privacy Policy”), which is hereby incorporated into these ToS by this reference. Sunbird reserves the right to change the Privacy Policy as set forth therein. User acknowledges that it has read and understands the Privacy Policy, and that User has the obligation to periodically review the Privacy Policy from time to time. In the event any provisions contained in these ToS conflict with any terms, conditions or clauses contained in the Privacy Policy, the provisions of the Privacy Policy shall govern.
3. Intellectual Property
- Sunbird Intellectual Property. The intellectual property utilized in providing the App is the valuable, confidential and copyrighted property of Sunbird. User may use the App as permitted in these ToS and may not otherwise modify, adapt, translate or create derivative works based on the App without the prior written consent of Sunbird. As between the parties, Sunbird owns all right, title and interest in and to the App, including without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trademarks, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio and video therein other than User Content. All trademarks, service marks and logos used on the website or through the App are the trademarks, service marks or logos of Sunbird or their respective owners.
4. User Representations
User represents and warrants to Sunbird that: (a) User has the power and authority to enter into and perform User’s obligations under these ToS; (b) all information provided by User to Sunbird is truthful, accurate and complete; (c) User shall comply with all terms and conditions of these ToS, including, without limitation, the provisions set forth in Section 5; (d) User has provided and will maintain accurate and complete registration information with Sunbird, including, without limitation, User’s legal name and email address; (e) User’s access to and use of the App does not and will not constitute a breach or violation of any other agreement, contract, terms of use or similar policy or understanding to which User is or may be subject; (f) User will not use the App to violate any statute, law, rule or regulation to violate any agreement between Sunbird and User or to otherwise violate the legal rights of Sunbird or any third person; (g) User will not access or use the App in order to gain competitive intelligence about Sunbird, the App or any product or service offered by Sunbird, or to otherwise compete with Sunbird; and (h) User is in fact the person which User purports to be. For any User Content that User posts to the App, User hereby represents and expressly warrants to Sunbird that: (i) User is the owner of such User Content or otherwise has the right to grant Sunbird the licenses granted pursuant to these ToS; (ii) User secured any and all consents necessary to post the User Content and to grant the foregoing licenses; (iii) the User Content does not violate the rights any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such User Content does not contain any personally identifiable information about third parties in violation of such parties’ rights; and (iv) the use of any User Content will not result in harm or personal injury to any third party.
5. Disclaimer of Warranties
THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE APP IS AT USER’S SOLE RISK. SUNBIRD, FOR ITSELF AND ITS SUPPLIERS, DEVELOPERS AND BUSINESS PARTNERS, MAKES NO WARRANTY (1) THAT USER’S ACCESS TO OR USE OF THE APP WILL BE UNINTERRUPTED OR ERROR FREE, OR BE WITHOUT ANY DELAY, OR FAILURE, OR (2) ANY TRANSMISSION OF CONTENT OR DATA WILL BE ACCURATE, UNALTERED, INCORRUPTIBLE OR COMPLETE OR THAT ANY CONTENT AND DATA TRANSMITTED WILL BE PROPERLY SENT OR RECEIVED OR NOT SENT OR RECEIVED. IN ADDITION, SUNBIRD, FOR ITSELF AND ITS SUPPLIERS, DEVELOPERS AND BUSINESS PARTNERS, MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, IN RELATION TO THE APP.
USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE APP OR ANY INFORMATION OR CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. THE APP IS NOT A BACKUP SERVICE FOR STORING USER DATA, AND NEITHER SUNBIRD, NOR ANY OF ITS SUPPLIERS, DEVELOPERS AND BUSINESS PARTNERS, SHALL HAVE ANY LIABILITY REGARDING ANY LOSS OF USER DATA. USERS ARE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY USER DATA UPLOADED USING THE APP. SUNBIRD, FOR ITSELF AND ITS SUPPLIERS, DEVELOPERS AND BUSINESS PARTNERS, MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE APP WILL MEET YOUR REQUIREMENTS; (B) THE INFORMATION, CONTENT, AND DATA IN THE APP ARE ACCURATE; (C) YOUR USE OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (D) ANY ERRORS IN THE APP WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE APP IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY DEVICE YOU USE TO ACCESS THE APP, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
SUNBIRD, FOR ITSELF AND ITS SUPPLIERS, DEVELOPERS AND BUSINESS PARTNERS, DOES NOT WARRANT THAT USE OF THE APP WILL RESULT IN USER’S COMPLIANCE WITH ANY APPLICABLE LAWS AND USER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS.
6. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL SUNBIRD OR ANY OF ITS AFFILIATES, SUBSIDIARIES, SUPPLIERS, DEVELOPERS, BUSINESS PARTNERS, AUTHORIZED RESELLERS, DISTRIBUTORS OR AGENTS BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE APP OR THE INTERNET GENERALLY. IN NO EVENT SHALL SUNBIRD’S OR ANY OF ITS AFFILIATES’, SUBSIDIARIES’ OR AUTHORIZED RESELLERS’, DISTRIBUTORS’ OR AGENTS’ TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED $100 REGARDLESS OF THE REASON FOR SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE APP, ANY CHANGES TO OR INACCESSIBILITY OF THE APP, ANY INACCURACY OR INCOMPLETENESS OF THE CONTENT OR INFORMATION CONTAINED IN THE APP, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE APP OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE APP, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE.
SOME STATES AND COUNTRIES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE APP, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE APP.
THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE APP AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY SUNBIRD CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
7. Indemnification
User will indemnify, hold harmless and defend Sunbird, its suppliers, developers and business partners, authorized resellers, distributors and agents, any affiliates or subsidiaries of the foregoing and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) these ToS; (b) User’s use of the App, including any data or work transmitted or received by User; (c) infringement or misappropriation of any intellectual property or other rights of Sunbird or third parties by User; and (d) any unacceptable use of the App by User or through User’s account, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable under these ToS.
8. Miscellaneous
- Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of these ToS shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
- Amendment. Sunbird shall have the right, at any time, to add to or modify the terms of these ToS concerning the use of the App, simply by posting such amended terms via the App or online at https://www.sunbirdapp.com/end-user-license-agreement. User’s access to or use of the App after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms. User acknowledges that User has a responsibility to periodically review the most recent version of these ToS for updates, modifications and amendments that govern User’s use of the App
- Waiver. No waiver of any term, provision or condition of these ToS, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
- Severability. If any provision of these ToS is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
- Notice. Unless otherwise provided in these ToS, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by email to either party’s last known post office or email address, respectively. User hereby consents to notice by email. Unless otherwise provided in these ToS, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party. Sunbird may send User via such email address Sunbird newsletters, product updates, service-related information and other offers and information from Sunbird or its business partners, and User hereby consents to such emails. Sunbird also may contact User by email to respond to any customer service or other inquiries User submits.
- Action. No action arising under these ToS may be brought by User more than one (1) year after the cause of action has accrued.
- Equitable Relief. The parties agree that breach of the provisions of these ToS, including, but not limited to, the unauthorized use or duplication of the App, would cause irreparable harm and significant injury to Sunbird which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Sunbird has the right to enforce the provisions of these ToS by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Sunbird may have for User’s breach of these ToS.
- Headings. The captions and headings of these ToS are included for ease of reference only and will be disregarded in interpreting or construing these ToS
- Force Majeure. If the performance of any part of these ToS by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Survival. The proprietary rights, disclaimer of warranties, and representations made by you, indemnities, limitations of liability, and general provisions shall survive any termination of these ToS.
- Entire ToS. This ToS and the other documents referenced herein constitute the complete and exclusive statement of the agreement between the parties with respect to the App and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the App.
- Contact. This App is operated by Sunbird. All inquiries may be directed to Sunbird at hello@sunbirdapp.com.
