Sundae Customer Terms and Conditions
These Terms and Conditions (these "Terms") apply to all Sundae (Sundae, Inc. and its affiliates and subsidiaries, including, but not limited to, Sundae Funding Inc., a licensed real estate broker wholly owned by Sundae Inc.) (collectively "Sundae") customers (each, individually, a "Customer") who request access to information about properties listed on the Sundae Marketplace. These Terms supplement Sundae’s Terms of Service, and by requesting access to the Sundae Marketplace as contemplated herein, Customer reaffirms Customer’s agreement to such Terms of Service, together with all exhibits, addenda and other materials that are a part thereof or incorporated therein. Without limiting the generality of the foregoing, Customer expressly agrees that these Terms are subject to Sections 3, 4, 5, 8, 9, 10, 12 and 14 of the Terms of Service, and that such provisions are incorporated into these Terms, mutatis mutandis. Customer further expressly agrees and acknowledges that Customer has reviewed, understands and agrees to Sundae’s Privacy Policy and the Licensing and Disclosures provided by Sundae on its website and incorporated by reference as a part of the Terms of Service.
1. Customer Access
If Customer is requesting access to information about properties listed on the Sundae Marketplace (including Sundae’s mailing and other distribution lists) on behalf of Customer only, these Terms are between Sundae and Customer. If Customer is requesting access on behalf of any other person or entity (e.g., an employer, contracting principal, or other company), these Terms are between Sundae, Customer personally, and the other person or entity, unless context requires otherwise as determined by Sundae in its sole discretion. In such circumstances, the term Customer as used herein shall include such other person or entity and Customer shall identify any and all such other person or entity on any and all applicable Order(s). By requesting access as contemplated herein, Customer represents and warrants, to the extent applicable, that Customer is duly authorized to represent Customer’s employer, contracting principal and/or entity and accepts these Terms on its behalf.
In order to access some features of the Sundae Marketplace, Customer will have to create a login account ("Account"). When creating Customer’s Account, Customer represents and warrants to Sundae that the information Customer provides is accurate and complete in all respects. All registrations must be made by Customer, personally. Accounts registered by "bots" or other automated methods are not permitted under any circumstances. Customer may never use another’s login account without permission, and Customer may not permit anyone else to use Customer’s login account. Single login accounts shared by multiple persons are not permitted under any circumstances. Customer may register multiple login accounts by contacting Sundae.
Customer agrees that Customer will be solely responsible for all activity that occurs on Customer’s Account, whether or not authorized by Customer. Accordingly, it is extremely important that Customer engage in activity consistent with all laws, including, but not limited to, anti-spam and data privacy laws and regulations. Further, Customer is obligated to keep Customer’s password secure and Customer agrees to notify Sundae immediately in the event Customer becomes aware of, or suspects, any breach of security or unauthorized use of Customer’s account.
2. Membership Plans
The prices, features, and options of the Sundae Marketplace depend on the membership plan Customer chooses ("Membership Plan") as well as any changes instigated by Customer. A description of Sundae’s Membership Plans and features are located at https://sundae.com/investor/pricing/. Sundae does not represent or warrant that a particular Membership Plan will be offered indefinitely and reserves the right to change the prices for, or alter the features and options available in connection with, a particular Membership Plan. Sundae will notify Customer in a timely manner of any changes by publishing on Sundae’s website, emailing, quoting, or invoicing Customer.
Customer may procure a Membership Plan subscription through the Sundae Marketplace interface or, in some cases, via an order form entered into between Customer and Sundae (each, an "Order"). All Orders are effective on the earlier of (i) the date set forth in Customer’s Order confirmation or online checkout portal, or (ii) the date on the signature block of the Order. Acceptance of the Order is subject to Sundae’s verification and credit approval process. In the event these Terms or the Terms of Service are terminated prior to the expiration of an Order, these Terms and the Terms of Service shall continue to apply until the expiration of such Order.
Membership Plans automatically renew unless otherwise noted. If Customer purchases a Membership Plan, Customer agrees to pay the then-current applicable fee associated with the Membership Plan and further agrees and acknowledges that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Membership Plan ("Membership Term"): (a) Customer terminates its Account or Membership Plan; (b) Sundae declines to renew Customer’s Account or Membership Plan; or (c) these Terms are otherwise properly terminated as expressly permitted herein. Canceled memberships will remain active through the time in which Customer has already paid and will not renew at the end of the paid period.
When Customer purchases a Membership Plan, Customer must provide accurate and complete information for a valid payment method that Customer is authorized to use. Customer will be billed for Customer’s Membership Plan through the payment method Customer provides, such as a credit card. Customer must promptly notify Sundae of any change in its invoicing address and must update its account with any changes related to its payment method.
BY COMPLETING REGISTRATION FOR A MEMBERSHIP PLAN, CUSTOMER AUTHORIZES SUNDAE OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS ("AUTHORIZATION") FOR: (A) THE APPLICABLE MEMBERSHIP PLAN CHARGES; (B) ANY AND ALL APPLICABLE TAXES; AND (C) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’s USE OF THE SUNDAE MARKETPLACE. The Authorization continues throughout the applicable Membership Term and any Renewal Term until Customer cancels as set forth in these Terms.
Charges for Membership Plans will be billed to Customer in advance. CUSTOMER’s PAYMENTS ARE NON-REFUNDABLE.
Customer agrees that Sundae may take steps to update Customer’s payment card information (where permitted) to ensure that payment can be processed. Customer agrees that Customer’s credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. Sundae may, where permitted by applicable law, suspend or terminate Customer’s access to the Sundae Marketplace if at any time Sundae determines that Customer’s payment information is inaccurate or not current. Customer is responsible for fees and overdraft charges that Sundae may incur when Sundae charges Customer’s card for payment. Sundae reserves the right to update the price for access to the Sundae Marketplace at any time after expiration of Customer’s then-current term. Any price changes will be effective as of Customer’s next billing cycle. In accordance with applicable law, Sundae will notify Customer in a timely manner of any price changes by publishing on Sundae’s website, emailing, quoting, or invoicing Customer. Customer’s continued use of the Sundae Marketplace after the changes have been made will constitute Customer’s acceptance of the changes. If Customer does not wish to continue subscribing with the new fees or features, Customer may terminate Customer’s Membership Plan as described above. If Customer accepts the new Membership Plan, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
If Sundae does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Sundae to collect any amount that is not paid when due. Sundae may accept payment in any amount without prejudice to Sundae’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Sundae may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from Sundae.
Sundae will provide billing and usage information in a format Sundae chooses, which may change from time to time. Sundae reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify Sundae about any billing problems or discrepancies within thirty (30) days after they first appear on Customer’s invoice. If Customer does not bring such problems or discrepancies to Sundae’s attention within thirty (30) days, Customer agrees to waive its right to dispute such problems or discrepancies.
Customer may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, "Benefits") through a separate business agreement with Sundae ("Business Terms"). Any and all such Benefits are provided solely as a result of the corresponding Business Terms and such Benefits may be modified or terminated without notice. If Customer is enrolled in a Membership Plan or receives certain Benefits tied to Business Terms with Sundae, but Customer is liable for Customer’s own charges, then Customer authorizes Sundae to share enough account information to verify Customer’s continuing eligibility for those Benefits and the Membership Plan. Benefits such as promotional codes, if offered to Customer, may only be used for Customer’s first Membership Term. If Customer purchased Customer’s Membership Plan with a promotional code, each time Customer’s Membership Plan renews Customer will be charged the full monthly or annual billing amount. If Customer’s Membership Plan is ever terminated for any reason, and Customer purchases another Membership Plan, Customer shall not be eligible to use a promotional code.
3. Non-Circumvention
Sundae’s Marketplace is a web platform with a goal of connecting investors with home sellers looking to sell real property assets (the "Assets"), which Assets Sundae has spent considerable resources to locate and make available for purchase. In exchange for access to the Sundae Marketplace, Customer agrees not to contact, directly or indirectly, the owner of any Asset (or any agent or representative thereof) for a period of one (1) year following the date when: (i) the Asset is listed for sale on the Sundae Marketplace; or (ii) Sundae otherwise informs the Customer of the Asset’s availability for purchase, whichever is later.
If a seller reports to Sundae that Customer has contacted such seller directly or indirectly by any means, including, but not limited to phone, email, or in-person at the seller’s property, Customer’s license to access Sundae’s platform, including, but not limited to, the Sundae Marketplace, may immediately be revoked by Sundae, in its sole discretion, in addition to any other rights and remedies that Sundae may pursue. Any such suspension from the Sundae Marketplace shall also apply to any future business entity or other person that Customer has equity ownership or any other interest in (e.g., convertible debt).
In the event that Customer purchases an Asset outside the Sundae Marketplace within one (1) year following the date when: (i) the Asset is listed for sale on the Sundae Marketplace; or (ii) Sundae otherwise informs Customer of the Asset’s availability for purchase, whichever is later, Customer agrees that Sundae is entitled to, and that Customer shall pay in accordance with the terms of these Terms, a commission in connection with the purchase equal to five percent (5%) of the purchase price of the Asset (the "Broker Commission"). The Broker Commission is due upon the sale of the Asset, and Customer agrees that Sundae shall be entitled to make a demand to the escrow company and/or closing attorney ("Closing Agent") and that Closing Agent is authorized and required to pay the Broker Commission to Sundae at that time.
Customer hereby understands and agrees that if Sundae discovers that Customer has violated this section of the Agreement, Customer’s access to Sundae’s Marketplace shall be immediately revoked with or without notice, and without the possibility of reinstatement. This ban from the Sundae Marketplace applies to Customer, individually, as well as to any individuals and/or business entities with which Customer is affiliated. The determination as to affiliation shall be in Sundae’s sole discretion.
4. Confidentiality
Customer understands that by accessing the Sundae Marketplace (the "Purpose"), Customer may view or receive non-public information, which is confidential or proprietary in nature. "Confidential Information" means any information or materials disclosed to Customer by Sundae that: (i) is marked or otherwise identified as "confidential" or "proprietary"; or (ii) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be "confidential" or "proprietary" or "personally identifiable information," including any information relating to Assets or other customers that could potentially be used to identify a particular person or company. Customer agrees: (a) to maintain all Confidential Information in strict confidence; (b) not to disclose Confidential Information to any third parties; and (c) not to use any Confidential Information except for the Purpose. Customer may disclose Confidential Information to its employees and consultants who have a bona fide need to know such Confidential Information for the Purpose; provided, that each such employee and consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth herein. All Confidential Information remains the sole and exclusive property of Sundae. Customer acknowledges and agrees that nothing in this Agreement will be construed as granting any rights to Customer, by license or otherwise, in or to any Confidential Information of Sundae, or any patent, copyright or other intellectual property or proprietary rights of Sundae, except as specified here. Customer acknowledges that the unauthorized use or disclosure of any Confidential Information would cause Sundae to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, Customer agrees that Sundae will have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information, in addition to any other rights or remedies that it may have at law or otherwise.
5. Use of Certain Service Providers
To ensure a timely and efficient closing, seller and Customer may use certain Sundae preferred vendors, service or product providers, whether referred by Sundae or selected by Customer, seller, or other person, including but not limited to those offering escrow, title, property insurance, home inspection, lending or loan brokering, bridge or rental mortgage loan and resale brokerage ("Service Providers"). In the event that Customer obtains the right to purchase an Asset through the Sundae Marketplace, the Asset’s purchase and sale agreement ("PSA") will identify these Service Providers.
Sundae does not guarantee the performance of any Service Providers. Customer and seller are not required to use any Service Providers referred by, or affiliated with, Sundae as a condition of the sale of the Asset, and may select any providers of their own choosing. The fees charged by these Service Providers will be disclosed on or before the close of escrow. Customer hereby assumes the obligation to investigate the fees charged by any Service Provider identified in the PSA before agreeing to the PSA. If and when applicable, Customer and/or seller may authorize Sundae to advance fees to Service Providers on behalf or for the benefit of Customer and/or seller, and Customer and/or seller may reimburse Sundae for the same at the close of the transaction.
6. Agency
Customer agrees and acknowledges that Sundae Inc. is acting on its own behalf, and is not acting as Customer’s agent or broker in connection with the sale or purchase of an Asset, or in the lending, brokering or arranging of any mortgage loan to Customer to facilitate the acquisition of an Asset. Notwithstanding the above, Sundae Inc.’s fully-owned subsidiary, Sundae Funding Inc., a licensed real estate broker, may establish single agency, dual agency, transaction broker, and/or other relationships as permitted by applicable law. For further details on Customer’s relationship or potential relationships with Sundae and its affiliated companies, including duties and potential conflicts of interest, Customer acknowledges Customer has reviewed, understands and agrees to Sundae’s Licensing and Disclosures. Customer agrees and acknowledges Customer has been advised to seek and, to the extent Customer has desired to so seek, has sought and received Customer’s own legal and professional advice before agreeing to these Terms.
7. Lending
In addition to real estate brokerage services, Sundae Funding, Inc. also offers, makes or arranges loans in connection with real property. The loans are for business purposes only and not for personal, family or household use, and any Customer who engages Sundae Funding, Inc.’s lending or loan brokering services must affirm that the subject loan is for business purposes only. Any lending or loan products offered on the Sundae Marketplace, or outside the scope thereof, are only applicable in California, Colorado, Georgia, Florida, Tennessee, Texas, and Washington. Nothing represented in any marketing material distributed by Sundae Funding, Inc. shall be considered a commitment to lend. All potential loans are subject to underwriting and due diligence until a definitive loan agreement is signed. The rates, costs, and fees advertised do not apply to all loans made or negotiated, and loans made or negotiated by Sundae Funding, Inc. may have higher interest rates or additional costs and fees.
Sundae Funding, Inc. is a licensed finance lender with the California Department of Financial Protection and Innovation, CFL #60DBO-122336. Loans made or arranged pursuant to a California Financing Law license.
8. Business Purpose Representation
Customer represents and warrants that Customer is in the business of investing in residential real estate, and that Customer has no intention to, nor will it ever, occupy any Asset acquired through Sundae’s network, including, but not limited to, the Sundae Marketplace. Neither Customer, nor any member, shareholder, partner, officer, director, manager, employee, agent, representative, or any family member of the foregoing, will occupy the Asset or acquire the Asset for personal, family, or household use.
9. Telephone Consent Contract and Recording Policy
By providing Sundae with a telephone number for a mobile device, including a number that Customer later converts to a mobile device number, Customer is expressly consenting to receiving communications - including, but not limited to, prerecorded or artificial voice message calls, text messages, and calls or text messages made by an automatic telephone dialing system, and any other method of communication permitted by law - from Sundae and its affiliates and agents at that number, about any product or services offered by Sundae. This express consent applies to each such telephone number that Customer provides to Sundae now or in the future. Calls and messages may incur access fees from Customer’s mobile services provider. Customer’s express consent applies to communications from Sundae to a land line as well as a mobile, wireless, or similar device, even if Customer is charged fees by Customer’s service provider for the communications. Customer understands that Customer need not provide this consent as a condition of obtaining goods or services from Sundae, and that Customer may decline to provide or revoke consent at any time by emailing [email protected] or by any other method that reasonably ensures Sundae receives Customer’s revocation.
By providing Sundae with a telephone number, Customer agrees that Sundae may record any telephone conversation with Customer (or any another individual) during any telephone call to or from that number for training purposes, whether or not the call was initiated by Customer, and whether or not Sundae disclosed the fact that the call was recorded during the call.
10. Taxes and Withholding
All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and similar transactional taxes imposed by any jurisdiction (collectively, "Taxes"). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Sundae Marketplace. If Sundae is required to remit Taxes associated with Customer’s purchase of, payment for, access to, or use of the Sundae Marketplace, Sundae will add the amount of those Taxes, itemized where required by law, to the payment due. Taxes may be applied without notice. Taxes shall not be deducted from the payments to Sundae, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Sundae receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that Sundae can rely on the name and address set forth in Customer’s account/registration for a Membership Plan as being the place of supply for Tax purposes. Customer’s obligations under this Section shall survive the termination or expiration of these Terms.
11. Miscellaneous
To the extent there is a conflict between any Order, these Terms, the Terms of Service, Sundae’s Privacy Policy or the Licensing and Disclosures, such conflict shall be resolved in that order.
CUSTOMER AGREES THAT ITS USE OF THE MARKETPLACE SHALL BE AT ITS SOLE RISK, AND THAT ALL CONTENT AND SERVICES ARE PROVIDED TO CUSTOMER "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, SUNDAE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND CUSTOMER’s USE THEREOF. SUNDAE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE MARKETPLACE’s CONTENT OR THE CONTENT OF ANY SITES LINKED THERETO.
IN NO EVENT SHALL SUNDAE BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING) OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
