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.
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.
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.
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. Nothing and its supplier and developer Sunbird hereby reserve 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, Nothing 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 Nothing, 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. Nothing 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 Nothing’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:
your use, including any erroneous use, of the App and its functionality;
your use of the App in compliance with all applicable laws and regulations;
your public or private transmission of Content; and
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:
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;
harm minors in any way;
impersonate any person or entity, including, but not limited to, a Nothing employee or representative, moderator, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
attempt to disguise the origin of any Content transmitted through the App;
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);
upload or transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
upload or transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation;
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;
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;
violate any applicable local, state, national or international law;
“stalk” or otherwise harass another user of the App or any other person; or
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 Nothing or Sunbird may undertake from time to time; or (iii) causes beyond the control of Nothing or 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 Nothing or Sunbird may update the App with or without notifying you.
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 Nothing. 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).
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.
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. NOTHING, 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, NOTHING, 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 NOTHING, 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.
NOTHING, 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.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL NOTHING 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 NOTHING’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 NOTHING CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
User will indemnify, hold harmless and defend Nothing, its suppliers (including Sunbird), 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 Nothing 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.
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. Nothing 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/sunbird-alpha-testing-user-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. Nothing may send User via such email address Nothing newsletters, product updates, service-related information and other offers and information from Nothing or its business partners, and User hereby consents to such emails. Nothing 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 Nothing which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Nothing 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 Nothing 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.