Liability Waiver, Release, Indemnification, and Voluntary Assumption of Risk (the "Release")

THIS RELEASE CONTAINS RELEASES, WARRANTY LIMITATIONS, ASSUMPTION OF RISK PROVISIONS, AND INDEMNITY PROVISIONS, ALL OF WHICH LIMIT YOUR LEGAL RIGHTS AND REMEDIES. YOU SHOULD READ THIS RELEASE CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.

Summary

As provided in greater detail in this Release (and without limiting the express language of this Release), You acknowledge the following:

  • You fully release the operators of the Services from all Claims You have or may have against them arising out of Your use of the Services;
  • Your use of the Services is at your sole risk;
  • The Services, including the Sunu Band and or the Sunu Nek (referred collectively and individually as “wearable device” or “wearable devices”), are provided with a limited satisfaction guarantee and a limited quality guarantee and we make no promises that they will be in good repair or defect-free;
  • You will perform a safety inspection before using any of the wearable devices, and are competent to do so, and You will not use a wearable device that is damaged or defective, otherwise you will become the sole responsible of the damages presented to such wearable device;
  • There are significant risks and dangers inherent in using a wearable device and You assume those risks;
  • You understand that electric components such as batteries, sensors, haptic components and or speakers (collectively and individually referred as “electric components”) provide a different user experience and may pose different risks and dangers, and You assume those risks with respect to the use of electric components;
  • You are responsible for all injuries or damages that You cause to other people or property;
  • We recommend You wear a helmet, but we cannot guarantee its effectiveness; and
  • You give us Your consent to use photos or videos of You that are taken while You are using a wearable device.

In consideration of Your use of any of the Services (defined below), You ("You," "Your" or "Yourself") agree to all terms and conditions in this Release. In order to rent a wearable device, You must also agree to the terms of the wearable device Rental Agreement ("Rental Agreement").

  • Releases; No Warranties; Assumption of Risk; Indemnification.
  • Section 1: Releases; No Warranties.

    IN EXCHANGE FOR YOUR BEING ALLOWED TO USE ANY OF THE SERVICES, WEARABLE DEVICES OR SOFTWARE YOU (ACTING FOR YOURSELF AND FOR ALL OF YOUR FAMILY, HEIRS, AGENTS, AFFILIATES, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS) DO FULLY AND FOREVER RELEASE, HOLD HARMLESS, PROMISE NOT TO SUE, AND DISCHARGE ALL RELEASED PERSONS FROM ALL CLAIMS THAT YOU HAVE OR MAY HAVE AGAINST ANY RELEASED PERSON ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES. Such releases are intended to be general and complete releases and waivers of all Claims arising out of or in any way related to Your use of the Services. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, and may do so as intended third-party beneficiaries of such releases, if appropriate.

    WITHOUT LIMITATION OF THE FOREGOING GENERAL RELEASES, YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS MAY OTHERWISE BE LIMITED OR EXPANDED BY APPLICABLE LAW, SUNU AND ALL OTHER RELEASED PERSONS ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (A) ANY RISK, DANGER, OR HAZARD DESCRIBED IN THIS RELEASE OR THE RENTAL AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES, WEARABLE DEVICES, OR SOFTWARE, (C) YOUR BREACH OF THIS RELEASE OR THE RENTAL AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR VIOLATION OF ANY PROHIBITED ACT SET OUT IN THE RENTAL AGREEMENT, OR YOUR VIOLATION OF ANY LAW, OR OF GOOD SAFETY PRACTICES, (D) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION BY YOU OR BY SUNUS OR ANY RELEASED PERSON, (E) YOUR FAILURE TO WEAR A BICYCLE HELMET OR OTHER PROTECTIVE GEAR OR CLOTHING WHILE USING BICYCLE, OR THE FAILURE OF SUCH HELMET OR PROTECTIVE GEAR OR CLOTHING TO PREVENT DEATH OR INJURY, OR (F) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY. YOU RELEASE AND WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF ANY OF THE OTHER RELEASED PERSONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.

    WITHOUT LIMITING THE BREADTH OF THE FOREGOING, YOU AGREE TO RELEASE SUNU AND ALL OTHER RELEASED PERSONS FOR ANY INJURY, DAMAGES OR LOSSES CAUSED BY THE ALLEGED NEGLIGENCE OF SUNU OR ANY OTHER RELEASED PERSON.

    YOU FURTHER SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, WEARABLE DEVICES, OR SOFTWARE IS AT YOUR SOLE RISK. To the fullest extent permitted by law, and with respect to Your use of any of the Service, wearable devices, or software, Sunu and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. ALL OF THE SERVICES, WEARABLE DEVICES, AND SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND YOU RELY ON THEM SOLELY AT YOUR OWN RISK. Sunu and all other Released Persons do not represent or warrant that any of the Services, wearable devices, software, or related information will be in good repair or error or defect-free. YOU ACKNOWLEDGE AND AGREE THAT DELAYS, OMISSIONS, INTERRUPTIONS, DEFECTS, OR INACCURACIES COULD EXIST WITH RESPECT TO ANY OF THE SERVICES, WEARABLE DEVICES, OR SOFTWARE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS FOR USING ANY OF THE SERVICES, WEARABLE DEVICES, OR SOFTWARE, AND SUNU AND ALL OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ANY OF THE FOREGOING. YOU ASSUME FULL AND COMPLETE RESPONSIBILITY AND LIABILITY FOR ALL CONSEQUENCES AND CLAIMS OF ANY KIND OR NATURE WHATSOEVER RELATED TO YOUR STOLEN OR LOST SUNU WEARABLE DEVICE OR PERSONAL SMARTPHONE THAT MIGHT HAVE ACCESS TO YOUR PERSONAL ACCOUNT AT THE SUNU APPLICATION SOFTWARE.

    Section 2: Assumption of Risk; Indemnification

    YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE WEARABLE DEVICES AT ALL TIMES. YOU UNDERSTAND THAT THIS AND OTHER SECTIONS IN THIS RELEASE AND THE RENTAL AGREEMENT DESCRIBE AND RELATE TO THE RISKS RELATING TO YOUR USE OF THE SERVICES. YOU AFFIRM THAT YOU HAVE READ, UNDERSTAND, AND ACCEPT THE ENTIRE RELEASE AND THE RENTAL AGREEMENT. YOU AGREE THAT WEARABLE DEVICES ARE MACHINES THAT MAY MALFUNCTION, EVEN IF THE WEARABLE DEVICE IS PROPERLY MAINTAINED, AND THAT SUCH MALFUNCTION MAY CAUSE INJURY. YOU FURTHER AGREE THAT, BEFORE ANY USE OF THE SERVICES, YOU WILL PERFORM THE SAFETY INSPECTION DESCRIBED IN THE RENTAL AGREEMENT, AND YOU WILL NOT USE A WEARABLE DEVICE THAT FAILS THE SAFETY INSPECTION AND WILL NOTIFY SUNU, AS APPLICABLE, OF SUCH FAILURE. YOU AGREE THAT RIDING A BICYCLE INVOLVES MANY INHERENT, OBVIOUS AND NOT-SO-OBVIOUS RISKS, DANGERS, AND HAZARDS, WHICH MAY RESULT IN INJURY OR DEATH TO YOURSELF OR OTHERS, AS WELL AS DAMAGE TO PROPERTY, AND THAT SUCH RISKS, DANGERS, AND HAZARDS CANNOT ALWAYS BE PREDICTED OR AVOIDED. Such risks, dangers, and hazards include and relate to, but are not limited to:

    • other vehicles
    • bicycles
    • pedestrians
    • other third parties
    • buildings
    • objects
    • potholes
    • wheelstops
    • curbs
    • docking plates
    • delineators
    • pavement cracks
    • ruts
    • animals
    • uneven or unstable roadways or bike paths
    • light rail or rail road tracks
    • weather conditions
    • road conditions
    • road kill
    • vegetation
    • other permanent or temporary obstructions on or near roadways or bike paths
    • the possibility of colliding with station elements, street fixtures, or other fixed object
    • the possibility of criminal or other third-party acts or omissions
    • bicycle or component malfunction
    • negligent acts or omissions by any released person
    • Your or any third person’s negligent acts or omissions, and
    • Your underlying known or unknown health conditions.

    YOU AGREE THAT ALL SUCH RISKS, DANGERS, AND HAZARDS, WHETHER KNOWN OR UNKNOWN, ARE YOUR SOLE RESPONSIBILITY AND YOU ASSUME ALL RELATED RISKS.

    You further agree that if Your use of any of the Services causes any injury or damage to another person or property, then You may be liable for all resulting injuries, damages, and related costs, and You agree to indemnify the Released Persons with respect to any such claims. By choosing to use a wearable device, You assume full and complete responsibility for all related foreseeable and unforeseeable risks, dangers, and hazards, and You agree that Sunu and all other Released Persons are not responsible for any death, injury, damage, or cost caused by You with respect to any person or property, including the wearable device itself.

    YOU AGREE, WITHOUT LIMITATION, TO INDEMNIFY AND HOLD HARMLESS ALL RELEASED PERSONS FROM ANY DEATH, INJURY, OR DAMAGE TO YOURSELF, ANOTHER PERSON OR PERSONS, OR PROPERTY ARISING OUT OF OR IN ANY WAY CONNECTED TO YOUR USE OF THE SERVICES.

  • Miscellaneous
  • Section 3: Helmets; Safety

    Sunu strongly recommends that all users of the Services when riding a bicycle wear a Snell, CPSC, ANSI, or ASTM approved helmet that has been properly sized, fitted, and fastened, according to the manufacturer’s instructions. Wearing a Snell, CPSC, ANSI, or ASTM approved helmet, properly sized, fitted, and fastened, while cycling may protect against an injury or may lessen the severity of an injury caused by an impact to the head; however, bicycle helmets are not 100% effective, do not protect against all head injuries, and do not protect against other injuries. SUNU AND THE OTHER RELEASED PERSONS DO NOT REPRESENT OR WARRANT THE QUALITY OR SAFETY CHARACTERISTICS OF ANY HELMET, AND YOU AGREE THAT SUNU AND THE OTHER RELEASED PERSONS ARE NOT LIABLE FOR ANY INJURY YOU SUFFER WHILE USING ANY OF THE SERVICES, WHETHER OR NOT YOU ARE WEARING A HELMET AT THE TIME OF INJURY AND WETHER OR NOT YOU WERE RIDING A BYCICLE AT THE TIME OF INJURY. YOU ASSUME ALL RISK OF NOT WEARING A HELMET OR OTHER PROTECTIVE CLOTHING AND GEAR. You agree that, when using any of the Services, You might need to take additional safety measures and precautions that are not specifically addressed in this Release.

    Section 4: Term and Termination

    The term of this Release begins when You first access the Services, and ends 10 years after Your last use of the Services. For the avoidance of doubt, the terms of this Release apply to any renewal of Your Membership and to any short-term subscriptions You purchase subsequent to Your initial subscription.

    You may terminate Your use of the Services at any time; provided, however, that the term of this Release continues in accordance with this Section. This Release remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how Your use of the Services is terminated.

    Section 5: Notices

    You may contact Sunu by writing, calling or emailing at the address listed below:

    Sunu Inc.
    340 Elm Street
    2nd and 3rd Floor
    Somerville, MA 02144
    United States of America
    +1-855-705-1244
    E-Mail: hello@sunu.com

    Section 6: Choice of Law; Dispute Resolution

    This Release is governed by, and must be construed and enforced in accordance with, the laws of Delaware in the United States of America, excluding principles of conflicts of laws. For every dispute regarding this Release: (i) each party consents to the jurisdiction of the courts of Delaware in the United States of America and agrees that those courts have personal jurisdiction over each party; (ii) venue must be in Delaware in the United States of America; and (iii) the parties must submit the dispute to mandatory mediation held in Delaware in the United States of America. Every mediation must be completed within 6 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 6-month period, then the parties may continue seeking to resolve the dispute by use of any process, including litigation by trial.

    Section 7: Waivers

    No waiver of any breach of any provision of this Release is a waiver of any other breach or of any other provision of this Release. The terms of this Release may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.

    For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do hereby knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to Sunu, the Released Persons, and their respective affiliates, successors, and assigns to use at any time and from time to time, without any restriction, Your appearance and voice in photographs, videos, and other recordings, but in each such instance only to the extent recorded during Your use of the Services (a) for purposes of maintaining the safety and functionality of the Services and (b) for purposes of promoting or marketing the use of the Services; (2) grant to Sunu, the Released Persons, and their respective affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice, at any time that You are using the Services, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Sunu or the Released Persons may decide in their sole discretion in connection with the promotion or marketing of the Services, the photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge all Released Persons from all Claims that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by You in this paragraph.

    Section 8: Cumulative Remedies

    All rights and remedies granted under or referred to in this Release are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.

    Section 9: Final Agreement; Modification by Sunu

    This Release and the Rental Agreement contain the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Release and the Rental Agreement supersede all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Your consent, Sunu may unilaterally amend, modify, or change this Release, in its sole discretion and without any notice or cause, and by continuing to use any Services after any amendment, modification, or change, You have agreed to be bound by all such amendments, modifications, and changes. You must carefully review this Release on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Release, Sunu will post a notification on the Platform.

    Section 10: Severability

    If a court deems any provision of this Release illegal or otherwise unenforceable for any reason, You agree that that provision shall be severed from the Release and shall be inoperative, and the remainder of the Release shall remain operative and shall be binding on the parties.

    Section 11: Definitions

    "Claims" or "CLAIMS" means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys’ fees, whether incurred at or in preparation for trial, appeal, mediation, or otherwise), damages (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the Services, including any of the wearable devices, electronic components, or software, or (b) Your use of any of the foregoing.

    "Sunu" means Sunu Inc and or its subsidiary companies, the provider of the Services in connection to the rent or sale of wearable devices.

    "Sunu Application", “Sunu App” and “Software” means the software that Sunu provides to any user, rather on their mobile phones, or through the world wide web.

    “Released Persons” or “RELEASED PERSONS” means, collectively, (i) Sunu and all of its and their owners, managers, affiliates, employees, agents, representatives, successors, and assigns, (ii) Sunu’s authorized distributors, (iii) Stripe Inc and all of its owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (iv) PayPal Holdings Inc and all of its owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (vi) any lender to Sunu and all of such lender's owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (v) First Republic Bank and all of its owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, (vi) any lender to Sunu and all of such lender's owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns, and (vii) every sponsor of any of the Services and all of the sponsor’s owners, officers, directors, affiliates, employees, agents, representatives, successors, and assigns.

    "Services" means the Sunu mobile application ("Mobile Application"), the Sunu software that operates the wearable devices (“Firmware”), the Sunu websites, sunu.com, snek.sunu.com and sband.sunu.com (together, the "Website"), the Sunu hardware sold or rented (“Wearable Device” or “wearable devices”) (the Mobile Application, Firmware and the Website, collectively, the "Platform"), and all related equipment, personnel, and information.

Your Agreement to Release

I certify that I am the person renting or buying a wearable device, I am 18 years of age or older, and I have read and agreed to all of the terms and conditions set forth in this Release.

OR

I certify that I am the parent or legal guardian of the Subscriber, who is 16 years of age or older, and I have read and agreed to the terms and conditions set forth in this Release on behalf of myself and the Subscriber, and I authorize the use of the Services by such minor Subscriber.

May 17th, 2021