IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THESE SERVICE TERMS CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW). BY ENTERING THESE SERVICE TERMS, YOU AGREE TO RESOLVE ALL DISPUTES WITH SUNSET TECHNOLOGIES, INC., THROUGH SMALL CLAIMS COURTS OR THROUGH ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN JURY TRIALS OR CLASS ACTIONS (SEE SECTION 15 BELOW).
Customer Software Service Agreement
THIS CUSTOMER SOFTWARE SERVICE AGREEMENT (this “Agreement”) is made and executed as of the last date indicated below, by and between (i) SUNSET TECHNOLOGIES, INC., a Delaware corporation, and its successors and assigns (“Sunset”, “we”, or “us”); and (ii) the entity or individual, whose name is indicated beneath its signature below (the “Customer” or “you”) (Sunset and the Customer are referred to hereafter collectively as the “parties” and each as a “party”).
R-1. WHEREAS, Sunset provides an array of software services and products, including, certain digital estate management services which it makes available to its clients; and
R-2. WHEREAS, the Customer (on behalf or itself or through an authorized third party), has enrolled, registered, subscribed, or has otherwise signed up (collectively, “enroll”) to utilize certain digital estate management services of Sunset, as specified in the document attached hereto as Exhibit A, the terms of which are fully incorporated hereby, (collectively with any other service or product which may be made available to you by Sunset for which you have registered or enrolled or have been registered or enrolled by an authorized third party, the “Services” and individually a “Service”); and
R-3. WHEREAS, Sunset and the Customer desire to specify and describe the terms and conditions under which the Customer agrees to utilize such Services (the “Service Terms”); so
NOW, THEREFORE, in consideration of the mutual promises, obligations, representations, warranties, and covenants set forth herein, it is hereby agreed by the parties as follows:
1. Enrollment. Upon completion of the Enrollment Process, and payment to us of any fees owed, you will become eligible to receive the Services for which you have enrolled. Depending upon the Services you enroll for, we may permit you to be enrolled (i) by telephone; (ii) online at https://noni.digital/ (our “Site”); (iii) by some other method we expressly permit; or (iv) by a third party who is authorized to receive on our behalf or provide your Personal Information to enroll you on your behalf (collectively, the “Enrollment Process“). In order to enroll in and receive one or more Services, you must provide us with the full and accurate Personal Information that we require for the applicable Services, which may include without limitation your name, address, telephone number, email address, date of birth, driver’s license number, and other personal information to verify your identity, as well as financial information such as your credit card number (collectively, “Personal Information“). You agree to keep all Personal Information updated and accurate, by updating your information in the Software. In the event we do not receive all the required Personal Information during your Enrollment Process, you agree that we may, in our sole discretion, use our database, the database of our affiliates, or other resources to attempt to complete the required Personal Information on your behalf. If we are unable to obtain the required Personal Information or you fail to authenticate your identity as may be required, the Services for which you have enrolled may be limited or unavailable.
2. No Fee Services. We may make certain features and Services available to users for no fee (the “No Fee Services“), including but not limited to those features or services we make available on or through your mobile phone. No Fee Services may include the ability to receive SMS text messages, email, push notifications and other notifications from the Services (the “Mobile Alerts“) and the ability to access the Services for which you have enrolled or registered through our mobile enabled application (our “App“). Users of our No Fee Services are required to enroll as a “Member” and provide us with certain information, including your name, mobile telephone number and email address, and must also create a username and password.
3. Changes to Services. We reserve the right to modify, add to, discontinue, and/or retire any Service and/or any feature of a Service at any time. We may also modify the terms and conditions that apply to the features and your use of the Services. We shall make reasonable attempts to provide you with notice of such modifications by posting them on the Site. We have no obligation to provide direct notice of any such changes. We reserve the right to define eligibility criteria for the Services, and make changes to those criteria at any time. Except as explicitly provided herein, or unless you have otherwise affirmatively agreed to such changes, by continuing to use the Service(s) and Site after any such changes or modifications to the Service(s) become effective, you agree to be bound by the revised terms. If you object to such change, your sole remedy shall be to terminate and/or cancel the Service. You can cancel the Service at any time, and may be eligible for a refund, as set forth in our refund policy in Section 7 below.
5. Customer Conduct. You understand and agree that perfect security does not exist anywhere, and that you will protect your Personal Information in a reasonable way at all times. Accordingly, you will not recklessly disclose or publish your Digital Assets or any other Personal Information to anyone who might reasonably be expected to improperly use or disclose that Personal Information, by way of example but in no way limited to: in response to “phishing” scams, unsolicited emails, or pop-up messages seeking disclosure of Personal Information.
6. No Legal Services Rendered Hereunder. Customer understands and agrees that Sunset is not a law firm or an attorney, may not perform services performed by an attorney, and any of its forms including but not limited to codicils and exhibits or templates are not a substitute for the advice or services of an attorney, nor do they constitute legal advice or services. You understand and agree that you are representing yourself to the extent anything under this Agreement constitutes a legal matter. No attorney client relationship or privilege is or shall be created with Sunset.
7. Term, Termination & Cancellation. Sunset reserves the right to terminate the Services and/or Service Terms upon notice, with or without cause. Unless cancelled and/or terminated, the Services shall automatically continue indefinitely, and you shall pay the applicable then-current prices as published by us. As you authorize during enrollment for the Services, we store your payment method, the Services will automatically renew, and you will be billed, until you cancel.
a. Direct Customers. You may cancel your Service or the automatic renewal of your Service at any time, upon prior written notice, as provided herein. To terminate and/or cancel your Service, you must request cancellation through your account. If we modify or update your Service and you object to such change, your sole remedy shall be to terminate and/or cancel the Service.
b. Customers Enrolled via Third Party. If you have enrolled in or obtained your membership to the Service(s) through a third party, and you wish to cancel the Service and/or Service Terms, you must notify the third party of your intent to cancel. We will terminate the Services and/or Service Terms upon notice to us provided by such third party. If you are enrolled in any Services through a third party, you may not be entitled to any refund of fees by Sunset. Sunset shall have no obligation to, and shall not, refund any fees paid by you to a third party. If we modify or update your Service and you object to such change, your sole remedy shall be to terminate and/or cancel the Service.
8. Privacy. You agree that we may use your Personal Information in accordance with our Privacy Plans, which are available on our Site and are incorporated by reference into these Service Terms. You expressly authorize Sunset, its agents, and its employees to obtain various information and reports about you as we deem reasonably necessary or desirable in the course of performing the Services. We may share your Personal Information with any other person registered on your Sunset account, in accordance with our Privacy Plans. You expressly authorize Sunset, its agents, and its employees to take any steps necessary to implement the Services, including, but not limited to, completing and executing any documents, communicating with third parties, and acting as a personal representative to the fullest extent permitted by law.
9. Intellectual Property. We retain all right, title and interest (including all copyright, trademark, patent, trade secrets and all other intellectual property rights) in our Services, our App (including the Data) as well as our trademarks, service marks, designs, logos, URLs, and trade names that are displayed in connection with our Services and our App.
10. Local Laws; Exports. We control and operate the App and Services from our headquarters in the United States of America and the content and features may not be appropriate or available for use in other locations. If you use the App or Services outside the United States of America, you are responsible for following applicable local laws. By using the App or Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
11. Customer Acknowledgements & Representations. By executing this Agreement customer agrees, understands, acknowledges, affirms, represents and warrants to Sunset as follows:
a. YOU ARE A NATURAL PERSON OVER EIGHTEEN (18) YEARS OF AGE, THAT YOUR ACCESS TO OR USE OF THE SERVICES DOES NOT VIOLATE APPLICABLE LAWS, AND THAT YOU AGREE WITH ALL THE TERMS OF THESE SERVICE TERMS. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE ENROLLING IN ANY SERVICE(S) ONLY FOR YOURSELF AND NOT ON BEHALF OF ANY OTHER INDIVIDUAL.
b. YOU REPRESENT AND WARRANT THAT YOU ARE A U.S. RESIDENT AND THAT AND THAT YOU SHALL ONLY USE SUCH SERVICES IN CONNECTION WITH YOUR PERSONAL ONINE ACCOUNTS, DEVICES AND DIGITAL FILES.
c. YOU UNDERSTAND THAT THE SUNSET REVIEW OF YOUR DATA IS LIMITED TO POSSIBLE COMPLETENESS. YOU WILL READ THE FINAL DOCUMENT(S) AND CONSULT YOU ATTORNEY BEFORE SIGNING IT, WHERE APPLICABLE, AND AGREE TO BE SOLELY RESPONSIBLE FOR THE FINAL DOCUMENT(S).
d. IF YOU DO NOT AGREE TO THESE SERVICE TERMS, YOU MUST NOT ENROLL OR REGISTER FOR ANY OF THE SERVICES OR OTHERWISE USE THE SERVICES.
e. DEPENDING ON YOUR OFFER, YOUR MEMBERSHIP MAY HAVE AN
INTRODUCTORY OR SPECIAL OFFER. AFTER THE INTRODUCTORY OFFER EXPIRES, YOUR MEMBERSHIP WILL AUTOMATICALLY RENEW AT THE APPLICABLE PRICE PUBLISHED ON OUR SITE (OR SUCCESSOR SITE AS DETERMINED BY SUNSET), DEPENDING ON YOUR SELECTION (E.G., ANNUAL, MONTHLY, MEMBERSHIP TIER/LEVEL, ETC.) (THE “RENEWAL PRICE“) UNTIL CANCELLED BY YOU. OUR PRICES, INCLUDING ANY RENEWAL PRICE, ARE SUBJECT TO CHANGE, HOWEVER WE WILL NOTIFY YOU IN ADVANCE. PLEASE NOTE THAT FOR ALL SERVICES OR FEATURES WHICH REQUIRE AN E-MAIL ADDRESS, INCLUDING BUT NOT LIMITED TO ANY ALERTS DELIVERED VIA E-MAIL, YOU MUST KEEP YOUR EMAIL ADDRESS UP TO DATE FOR PURPOSES OF RECEIVING SUBSCRIPTION NOTIFICATIONS AND YOU HEREBY WAIVE YOUR TO RIGHT TO RECEIVE SUCH NOTICES IF YOU DO NOT PROVIDE A VALID EMAIL ADDRESS.
f. IF YOU WISH TO CANCEL OR TERMINATE YOUR SUBSCRIPTION TO THE SERVICES TRANSACTED DIRECTLY WITH SUNSET, YOU MUST CANCEL THROUGH YOUR SUNSET ACCOUNT.
g. YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THESE SERVICE TERMS. WE MAY MODIFY, UPDATE, ADD OR REMOVE PROVISIONS OF THESE SERVICE TERMS AT ANY TIME BY POSTING THOSE CHANGES ON OUR SITE. EXCEPT AS PROVIDED BY SECTION 7 ABOVE, OR UNLESS YOU HAVE OTHERWISE AFFIRMATIVELY AGREED TO SUCH CHANGES, YOUR CONTINUED USE OF THE SERVICES AFTER SUCH POSTING SHALL CONSTITUTE YOUR ACCEPTANCE OF ANY SUCH CHANGE(S) TO THESE SERVICE TERMS. IF YOU DO NOT AGREE WITH ANY OF THE UPDATED SERVICES TERMS YOU MUST STOP USING THE SERVICES.
12. Disclaimer of Warranties. UNLESS OTHERWISE EXPLICITLY STATED, SUNSET, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED IN THE SERVICES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THROUGH THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
13. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUNSET, OUR AFFILIATES, OUR RESPECTIVE LICENSORS, LICENSEES, AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXTRAORDINARY, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER (HOWEVER ARISING), ARISING OUT OF, RELATING TO OR RESULTING FROM YOUR USE OR INABILITY TO USE OR ACCESS THE SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING LIMITATION OF LIABILITY, IN THE EVENT WE ARE FOUND LIABLE FOR DAMAGES TO YOU IN A COMPETENT LEGAL PROCEEDING OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF ORRELATED TO THESE SERVICE TERMS IS LIMITED TO THE LESSER OF (A) ONE THOUSAND U.S. DOLLARS ($1,000); OR (B) THE AMOUNTS PAID TO US FOR THE SERVICES THAT ARE THE BASIS OF THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. Indemnification & Warranty Coverage. Customer shall indemnify and hold Sunset (and our officers, directors, agents, subsidiaries, joint ventures, licensees, employees, and third-party partners) harmless from any claim, demand, liability, loss, cost or expense, including reasonable attorneys’ fees, due to or arising out of your breach of these Service Terms, or your violation of any law or regulation, or the rights of any third party. Sunset warrants the Services it provides hereunder, and in connection therewith, Sunset agrees to reimburse, indemnify, defend and save harmless the Customer from and against all liability, loss, cost or expense incurred by Customer (or the Customer’s estate), arising solely out of Sunset’s negligence in the performance of the Services hereunder only to the extent and in accordance with the terms of warranty coverage purchased and agreed to in writing by the Customer, except that Sunset shall not be liable under any circumstance to reimburse, defend or save harmless the Customer from or against any of those liabilities, losses, costs or expenses caused in whole or in part by the Customer’s acts, omissions, or breach of this Agreement.
15. Dispute Resolution. Sunset believes that most disagreements can be resolved informally and efficiently by contacting Sunset customer support. If you are a U.S. customer, and the dispute is not resolved through Sunset customer support after your reasonable efforts to do so, you and Sunset agree that any such dispute, claim or controversy arising out of or relating in any way to the Services or these Service Terms (a “Claim”), shall be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction, as follows:
a. Small Claims Court. You may elect to litigate your Claim in small claims court if all the requirements of the small claims court are satisfied, including any limitations on jurisdiction and the amount at issue in the dispute. In any such event, you agree to bring a Claim in, small claims court in your county of residence or in the Eastern District Court of Virginia, Alexandria, VA.
b. Arbitration. 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. You agree that, by agreeing to these Service Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and Sunset are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Service Terms and/or the termination of your Service. If you elect to seek arbitration, you must first send to Sunset, by certified mail, a written Notice of Your Claim (“Notice of Claim“) addressed to General Counsel, Sunset Technologies, Inc., 8577 Sudley Road, Ste D, Manassas, VA, 20110 and prominently captioned “NOTICE OF CLAIM”. Your Notice of Claim shall include both the mailing address and email address you would like Sunset to use to contact you. In the event Sunset elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your billing address on file. Any Notice of Claim, whether sent by you or by Sunset, must (a) describe the nature and basis of the claim or dispute; (b) set forth the specific amount of damages or other relief sought (“Demand“); and (c) whether you reject any subsequent modification of the Dispute Resolution section by Sunset. If you and Sunset do not reach an agreement to resolve the claim within thirty (30) days after the Notice of Claim is received by the party against whom such Claim is being made, you or Sunset may commence an arbitration proceeding (or, alternatively, file a claim in small claims court). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org. The arbitration will be governed by the Consumer or Commercial Arbitration Rules, as appropriate, of the American Arbitration Association (“AAA”) (collectively, the “AAA Rules”), as modified by these Service Terms, and will be administered by the AAA. AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of these Service Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless Sunset and you agree otherwise, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim. If your claim is for U.S. $10,000 or less, Sunset agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Sunset’s last written settlement offer made before an arbitrator was selected (or if Sunset did not make a settlement offer before an arbitrator was selected), then Sunset will pay you, in addition to the award, either U.S. $500 or 10% of the amount awarded, whichever is greater.
c. Injunctive & Declaratory Relief. Except as set forth in Section 15(a)., the arbitrator shall determine all issues of liability on the merits of any claim asserted by you or Sunset, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or Sunset prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
d. Arbitration Fees. If your claim for damages does not exceed $10,000, Sunset will pay all fees imposed by the AAA to conduct the arbitration, including reimbursement of your initial filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set
forth in Federal Rule of Civil Procedure 11(b)). If your claim for damages exceeds $10,000, standard AAA Rules will govern the payment of all AAA fees, including filing, administration and arbitrator fees.
e. Class Action Waiver. YOU AND SUNSET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if you have elected arbitration, unless both you and Sunset agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
f. Modification of Dispute Resolution. Notwithstanding Section 3 or Section 15, if Sunset changes this “Dispute Resolution” section after the date you first accepted these Service Terms, and you have not otherwise affirmatively agreed to such changes, you may reject any such change by so stating within your Notice of Claim. By failing to reject any changes to this Dispute Resolution section in your Notice of Claim, you agree to resolve any Claim between you and Sunset in accordance with the terms of the Dispute Resolution section in effect as of the date of your Notice of Claim.
g. Severability. With the exception of any of the provisions in Section 15(e) of this Agreement (“Class Action Waiver“), if an arbitrator or court of competent jurisdiction decides that any part of these Service Terms is invalid or unenforceable, the other parts of these Service Terms shall still apply.
16. General Terms.
a. Notice. Unless otherwise provided herein, all notices, requests, consents and other communications required of Customer hereunder shall be in writing and shall be (i) personally delivered, in such event delivery will be deemed to have occurred at the time of delivery; or (ii) by a nationally recognized overnight courier company, in such event delivery will be deemed to have occurred the business day following deposit with the courier to Sunset at 8577 Sudley Road, Ste D, Manassas, VA, 20110.
b. Jurisdiction. This Agreement, these Service Terms and any Services provided hereunder shall be governed by the laws of the State of Virginia, without regard to any laws that would direct the choice of another state’s laws and, where applicable, will be governed by the federal laws of the United States of America.
c. Assignment. Neither these Service Terms, nor any rights hereunder, may be assigned by you, either by operation of law or otherwise, in whole or in part, without our prior written permission. Any purported assignment without such permission shall be void.
d. No Waiver. Any waiver of our rights under these Service Terms must be in writing, signed by Sunset, and any such waiver shall not operate as a waiver of any future breach of these Service Terms. Our failure to enforce any of these Service Terms is not a waiver of such term or right.
e. Severability. In the event any portion of these Service Terms is found to be illegal or unenforceable, such portion shall be severed from these Service Terms, and the remaining terms shall be separately enforced.
f. Legal Compliance. Your use of the Services shall at all times comply with all applicable laws, rules, and regulations.
h. No Implied Warranties. Sunset has not made, and shall not be deemed to have made, and Customer has not relied upon, any warranty, either express or implied, to Customer concerning the Services except for those warranties expressly set forth in this Agreement.
i. No Partnership. Nothing contained in this Agreement shall be construed to create a partnership or joint venture between the parties or their successors in interest or permitted assigns.
j. Survival. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Service Terms.
k. Third Parties. These Service Terms are solely and exclusively between you and Sunset and you acknowledge and agree that (i) no third party, including a third-party partner or affiliate of Sunset is a party to these Service Terms; and (ii) no third party, including any third-party partner of Sunset has any obligations or duties to you under these Service Terms.
m. Construction. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted by both of the parties, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any of the provisions of this Agreement.
Copyright © 2022 Sunset Technologies, Inc.
All Rights Reserved
Effective Date: March 22, 2022