Terms of Service

Summay Terms of Service

Last Updated: February 20, 2016

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Summay, Inc. (“Summay,” “we,” or “us”) provides the Sunsama.com website and any affiliated software and mobile applications (collectively, the “Site”), and the daily planner application and other products or services provided by or through the Site (collectively, the “Service” or “Services”) subject to these terms and conditions of use, and all polices and guidelines referenced herein (the “Terms”).

1. General

Individuals or other entities that use our Services are called “Users”. By accessing or using the Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.

The Services may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you. We may also remove any content from our Services at our discretion.

A “Device” is any mobile device or computer used to access our Services, including without limitation a desktop, laptop, mobile phone, tablet, or other consumer electronic device. By accessing or using the Services, you agree to our use of cookies placed on your Device by our Services pursuant to the terms of our Privacy Policy. We use cookies to collect information and improve our Services. If you choose to use the Services without blocking or disabling cookies, you indicate your consent to our use of these cookies and to our use (in accordance with our Privacy Policy) of any personal information that we collect using these cookies. For more information about how we use cookies, please see our Privacy Policy. The Privacy Policy is incorporated into and subject to these Terms, and by agreeing to these Terms, you are acknowledging and accepting the Privacy Policy.

2. Fees

We may charge fees for the use of certain products or services, or for the access and use of certain features in our Services. They may change from time to time. If we change them, we will give the User at least 30 days’ notice. If they do change, the continued use by any User after the change indicates User’s agreement with the new fees and charges after the effective date of the change.

User is responsible for providing complete and accurate billing and contact information to Summay. Summay may suspend or terminate the Services if fees are 30 days past due. Summay may use third-party payment processing companies, such as Stripe, to collect payments for the Services.

All purchases are final and no refunds will be provided.

IF CUSTOMER'S ACCOUNT IS SET TO AUTO RENEWAL, OR IS IN A TRIAL PERIOD, SUMMAY MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL, OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES SUMMAY THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL.

3. Ownership of and Responsibility for Content

For purposes of these Terms, “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. Content provided by Users is called “User Content.” Summay’s only right to User Content is the limited licenses to it granted in these Terms. Content includes without limitation User Content.

User Content is the User’s sole responsibility. You, and not Summay, are responsible for maintaining and protecting all User Content. Summay will not be liable for any loss or corruption of User Content, or for any costs or expenses associated with backing up or restoring any User Content. We likewise have no responsibility or liability for any loss or damage your User Content may cause to you or other entities or people. Although we have no obligation to do so, we have the absolute discretion to remove, screen or edit without notice any User Content posted or stored on the Services, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any User Content you post or store on the Services. If you authorize third parties to access your User Content through the Services, you agree that we are permitted to provide to them the User Content, and also agree that we have no responsibility or liability for their use of such User Content.

4. Limited License of User Content

We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate the Site and provide the Services, now and in the future. Therefore, by posting, modifying, or distributing User Content to or through the Services, you (a) grant Summay and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, in the manner in and for the purposes for which the Services from time to time use such User Content; (b) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Services; and (ii) the use and posting or other transmission of such User Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity.

How we collect and use your information generally is also explained in our Privacy Policy.

5. Summay Property

These Terms do not grant you any right, title, or interest in the Services, Software (as defined below), or the content in the Services. While we appreciate it when users send us feedback, please be aware that we may use any feedback, comments, or suggestions you send us or post in our forums without any obligation to you. The Software and other technology we use to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. These Terms do not grant you any rights to use the Summay trademarks, logos, domain names, or other brand features.

The Services are for the Users’ use only. You may not resell, lease or provide them in any other way to anyone else.

6. Account Security

If you want to use certain features of the Services you will have to create an account (“Account”). You can create an Account via the Site or through your account with certain third-party services, such as Google or Microsoft (“Third Party Account”). If you choose the Third Party Account option, we may create your Account by extracting from your Third Party Account certain personal information such as your name and email address, your contacts and their information, and other personal information that your privacy settings on the Third Party Account permit us to access.

Users are responsible for safeguarding the password, tokens, or other login credentials that are used to access the Services (the “Login Credentials”), and Users agree not to disclose their Login Credentials. The Login Credentials are critical to the security of Users’ data or User Content.

Users are responsible for any activity occurring under their Accounts, whether or not they authorized that activity. You should immediately notify us of any unauthorized use of any account. You acknowledge that if you wish to protect your transmission of data or files to or from us, it is your responsibility to use a secure, encrypted connection to communicate with the Services. You also acknowledge that communications over the Internet may be subject to breaches of security and that the submission of your User Content or other information may not be secure.

7. Software and Updates

Some use of our Services may require you to download a client software package or mobile application (“Software”). We hereby grant you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. Your license to use the Software is automatically revoked if you violate these Terms. We hereby reserve all rights not expressly granted in these Terms. You must not reverse engineer or decompile the Software, nor attempt to do so, nor assist anyone else to do so. Our Services may update the Software on your Device automatically when a new version is available.

8. Acceptable Use Policy

You will not, and will not attempt to, misuse the Services. For example, you must not, and must not attempt to, use the Services to do the following things:

use the Services in any way, or post, 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;
probe, scan, or test the vulnerability of any system or network;
breach or otherwise circumvent any security or authentication measures;
access, tamper with, or use non-public areas of the Service, shared areas of the Service you have not been invited to, or Summay’s (or our service providers’) computer systems;
interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
plant malware or otherwise use the Services to distribute malware;
access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);
send unsolicited communications, promotions or advertisements, or spam;
send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
use the Services to produce products or services that compete with those offered by Summay;
promote or advertise products or services other than your own without appropriate authorization;
impersonate or misrepresent your affiliation with any person or entity; or
violate the law in any way, or to violate the privacy of others, or to defame others.

You are prohibited from uploading any “sensitive” personally identifiable information to the Services, which may include, but is not limited to, information about yourself or any other person that may relate to health or medical conditions, social security numbers or taxpayer identification numbers, driver’s license numbers, information concerning political opinions, criminal charges or convictions, religious or philosophical beliefs, racial or ethnic origin, or other sensitive matters (“Sensitive Personal Information”). If you upload any Sensitive Personal Information to the Services, your account and access to the Services may be terminated immediately. Notwithstanding the foregoing, Summay is not responsible for any Sensitive Personal Information uploaded to the Services and is under no obligation to ensure that Sensitive Personal Information is not uploaded to the Services.

If you provide Personal Information (as defined in the Privacy Policy) about someone else, you must ensure and hereby agree that you are authorized to disclose such Personal Information. You must take reasonable steps to ensure that the individual concerned is aware of and consents to the disclosure of their Personal Information pursuant to these Terms and the terms and conditions of the Privacy Policy.

The Services are not intended for use by persons under the age of 13, and User will ensure that it does not allow any person under 13 to use the Services. User will promptly notify Summay of any unauthorized use of, or access to, the Services.

The Services are provided with LIMITED or RESTRICTED RIGHTS. Any access or use of the Services by the United States government is subject to restrictions as set forth in FAR 12.212 or DFARS 227.7202-1(a), 227.7202-3(a) and 227.7202-4 (1995) and, to the extent required under U.S. federal law, the minimum restricted rights as set out in FAR 52.227-19 (DEC 2007) or FAR 52.227-14 (DEC 2007). To the extent any technical data is provided pursuant to the Terms, such data is protected per FAR 12.211 and DFARS 227.7102-2 and to the extent explicitly required by the U.S. government, is subject to limited rights as set out in DFARS 252.227.7015 (NOV 1995) and DFARS 252.227-7037 (SEPT 1999). In the event that any of the above referenced agency regulations are modified or superseded, the subsequent equivalent regulation shall apply. In case of conflict between any of the FAR and DFARS provisions listed herein and these Terms, the construction that provides greater limitations on the government's rights shall control. The name of the provider is Summay, Inc., 555 10th St. #425, Oakland, CA 94607. For purposes of any public disclosure provision under any federal, state or local law, it is agreed that the Site and the Services are trade secrets and a proprietary commercial product and not subject to disclosure. If User is an agency, department, or other entity of any state government, the United States government, or any other public entity or funded in whole or in part by the United Stated government, then User, hereby agrees to protect the Site and the Services from public disclosure and to consider the Services and the Site exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or use of the Services or the Site.

9. Copyright

We respect others’ intellectual property and we ask that you do too. We will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. We reserve the right to delete or disable content alleged to be infringing and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:

Summay, Inc.

555 10th St. #425

Oakland, CA 94607

copyrights@sunsama.com

10. Other Content

The Services and the User Content may contain links to third-party websites or resources. Summay does not endorse and is not responsible or liable for their availability, accuracy, content, products, or services. You are solely responsible for your use of any such websites or resources.

11. Termination and Suspension; Survival

Though we’d much rather you stay, Users may stop using our Services any time. Before your voluntary termination, you are responsible for retrieving all of your User Content from our Services. We reserve the right to suspend or end the Services at any time, with or without cause, and with or without notice. For example, we may suspend or terminate your use if you are not complying with these Terms, or use the Services in any way that would cause us legal liability or disrupt others’ use of the Services. If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating these Terms, a court order, or danger to other users) where we may suspend immediately.

Although it is Summay’s intention for our Services to be available as much as possible, there may be occasions when our Services may be suspended or interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

Consequently, Summay encourages you to maintain your own backup of your data. In other words, Summay is not a backup service, and you agree that you will not rely on Summay to maintain your own backup of your User Content and other data.

Sections 3 through 26 will survive any termination of these Terms.

12. Indemnification

User will indemnify, defend, and hold harmless Summay from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim, suit, action or proceeding regarding: (i) User Content; (ii) User’s use of the Services in violation of these Terms; (iii) User’s uploading of Sensitive Personal Information to the Services; or (iv) User’s disclosure of or failure to protect the Login Credentials.

13. No Warranties

Though we want to provide a great service, there are certain things about the service we can’t promise. For example, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS”, AT YOUR OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Summay will have no responsibility for any harm to your Device, loss or corruption of data, or other harm that results from your access to or use of the Services or Software. You are fully responsible for securing and backing up your own User Content and other data. Summay does not warrant that the operation of our Services will be error-free or uninterrupted. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SUMMAY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT SUMMAY HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES MORE THAN THE GREATER OF $20 OR THE AMOUNTS PAID BY YOU TO SUMMAY FOR THE PAST THREE MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.

15. Force Majeure

SUMMAY WILL NOT BE LIABLE FOR FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF OUR SERVICES.

16. Confidential Information

User agrees not to use any Confidential Information (as hereinafter defined) disclosed to it by us for its own use or for any purpose other than to use the Services. User shall not disclose or permit disclosure of any Confidential Information to third parties. User agrees that they shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under these Terms to have any such information. Such measures shall include the degree of care that User utilizes to protect its own Confidential Information of a similar nature. User agrees to notify us of any misuse, misappropriation or unauthorized disclosure of Confidential Information which may come to User’s attention. If User becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, User will provide us prompt written notice of such disclosure and will assist us in seeking a protective order or another appropriate remedy. If we waive User’s compliance with this Section or fail to obtain a protective order or other appropriate remedy, User will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

User agrees that any violation or threatened violation of these provisions related to the use and disclosure of Confidential Information will cause irreparable injury to Summay, entitling Summay to obtain injunctive relief in addition to all legal remedies without showing or proving any actual damage and without any bond being required to be posted.

“Confidential Information” means any oral, written, graphic or machine-readable information, technical data or know-how, including, but not limited to, that which relates to patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), computer programs, algorithms, interfaces, inventions, processes, work flows, business plans, agreements with third parties, services, and customers, whether or not designated as “confidential” at the time of disclosure. Confidential Information shall include information disclosed by us before the date User first used our Services, but shall not include information that: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to User by us; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure to User by us through no action or inaction of User; or (iii) is in the rightful possession of User without confidentiality obligations at the time of disclosure by us to User as shown by User’s then-contemporaneous written files and records kept in the ordinary course of business.

17. Modifications

We may revise these Terms from time to time and the most current version will be posted on our Site. If a revision, in our sole discretion, is material we will notify the User (for example via email to the email address associated with the User’s account). Other changes may be posted to our terms page, so please check that page regularly. If a User continues to use the Services after revisions become effective, the User agrees to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Services.

18. Assignment

You may not assign any of your rights in these Terms, and any such attempt is void. Summay may assign its rights, with or without notice to you, to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

19. Resolving Disputes

Customer service is a priority, but if there’s an issue that needs to be resolved, this section outlines what is expected of both of us.

A. Initial Informal Dispute Resolution. Before filing a claim against Summay, you agree to try to resolve the dispute informally by contacting us via email at support@sunsama.com. We will try to resolve the dispute by contacting you via email. If a dispute is not resolved within thirty (30) days of submission, you or Summay may bring a formal proceeding.

B. Arbitration Agreement. You and Summay agree to resolve any claims relating to these Terms or the Services, whether or not such claims involve a third party, through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This arbitration agreement will survive the termination of your relationship with Summay.

C. Arbitration Notification. If either of us intends to seek arbitration under this agreement, the party seeking arbitration must first notify the other party of the dispute in writing at least thirty (30) days in advance of initiating the arbitration. Notice to Summay should be sent to us via email to support@sunsama.com, with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our Site. The notice must describe the nature and basis of the claim and the relief being sought.

D. Arbitration Procedures. You may bring claims only on your own behalf. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco California, or any other location we agree to.

In the event that the American Arbitration Association is unwilling or unable to set a hearing date within one (1) year of filing the case, then either Summay or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services.

Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms.

E. Arbitration Fees. The AAA rules will govern payment of all arbitration fees.

F. Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

You may opt out of this agreement to arbitrate, but to opt out, you must notify Summay in writing within thirty (30) days of the date that you first became subject to this arbitration provision. You must provide notice to us via email to support@sunsama.com, with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our Site. You must include your name and address, the primary contact and account administrator’s name and address, and a clear statement that you want to opt out of this arbitration agreement.

IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND SUMMAY AGREE THAT THERE WILL NOT BE A JURY TRIAL. You and Summay unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this agreement in any way.

G. Prohibition of Class Arbitrations. YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. This agreement does not allow class or collective arbitrations even if the AAA procedures or rules would allow them. Notwithstanding any other provision of this agreement, the arbitrator shall not have the power to determine that class arbitration is permissible. The arbitrator also shall not have the power to preside over class or collective arbitration, or to award any form of class-wide or collective remedy.

If for any reason the prohibition of class arbitrations set forth above cannot be enforced, then the agreement to arbitrate will not apply.

H. Judicial Forum for Disputes. IN THE EVENT THE AGREEMENT TO ARBITRATE IS FOUND NOT TO APPLY TO YOU OR YOUR CLAIM, YOU AND SUMMAY AGREE THAT ANY JUDICIAL PROCEEDING RELATING TO THESE TERMS OR THE SERVICES OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA. BOTH YOU AND SUMMAY CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.

20. Controlling Law

THESE TERMS AND THE USE OF THE SERVICES AND SOFTWARE WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. These Terms will not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable.

21. Entire Agreement

These Terms constitute the entire and exclusive agreement between you and Summay with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms create no third party beneficiary rights.

22. Notice

We may send you, in electronic form, information about our Services, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for our Services or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using our Services. You must provide legal notice to us via email to support@sunsama.com, with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our Site. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.

23. Severability

These Terms apply to the maximum extent permitted by relevant law. If a provision is found unenforceable, the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible.

24. Time Limitation on Claims

Claims must be filed within one year. You must bring any claim related to these Terms or our Services within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it is not filed in time, the claim is permanently barred.

25. Waiver

Summay’s failure to enforce a provision is not a waiver of its right to do so later.

26. Relationship

Summay and you are not legal partners or agents; instead, our relationship is that of independent contractors.

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