Terms of Service

OUR SERVICES

Sunset MKTG (“Sunset MKTG,” “we,” or “us”) provides a range of marketing products and services for businesses of all sizes (the “Services”). Your Service Agreement (the “Service Agreement”), Service Order (the “Service Order”), or Online Order Form (the “Order Form”) sets forth which Services you are purchasing, the party entering the agreement (the “Client,” “you” or “your” and together with Sunset MKTG the “Parties” or each individually a “Party”), the costs for such Services, the minimum Initial Term, and other relevant details. As used in this Agreement, the term Service Agreement means any Service Agreement, Service Orders or Online Order Form or any combination of the foregoing.
These Terms of Services (the “Terms of Service” or the “Terms”) are incorporated by reference into and made part of any Service Agreement submitted to Sunset MKTG and govern the relationship between you and Sunset MKTG. These Terms of Service are effective on the date the Service Agreement is signed (the “Effective Date”) and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service, and the other documents incorporated by reference herein are collectively referred to as the “Agreement.” These Terms of Service may be reviewed at any time at sunsetmktg.com/terms.
Sunset MKTG PROVIDES THE SERVICES AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPTS AND COMPLY WITH THEM. BY EITHER SIGNING A SERVICE AGREEMENT/SERViCE ORDER OR BY CHECKING THE “ACCEPT” BOX ON THE SIGNUP ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF YOU DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, Sunset MKTG DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY Sunset MKTG, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
The Service Agreement, Service Order, and/or Online Order Form, together with these Terms of Service, the Sunset MKTG Privacy Policy located in Section 4 of this document, the Sunset MKTG Payments Terms of Service, which governs all use of Sunset MKTG Payments and related services and any other ancillary documents incorporated by reference in these Terms of Service constitute the entire agreement between the Parties. Sunset MKTG limits acceptance to these agreements and objects to any other additional or different terms in the Client’s acceptance.

1. About the Services and these Terms of Service

Sunset MKTG provides a variety of DIY (“Do It Yourself”) and DIFM (“Do It For Me”) marketing, business management, and payment processing technology products and services to businesses of all sizes. All DIFM plans included a dedicated individual or team to help with your account success. To qualify as a DIFM plan, your Service Agreement must have services in addition to the Sunset MKTG Base Fee, and you must have a minimum monthly payment of $995 or higher. DIY plans include access to one of the Sunset MKTG Platforms. Dedicated individual or team Services are not available with a DIY plan but may be added at any time for an additional price. Your Service Agreement or Service Order will outline the products and/or services applicable to your account, the Term of our business relationship, and the price for each of the products and/or services. These Terms of Service define the legal terms and conditions that govern our products and services and your Service Agreement. You may add additional one-time or recurring products and services at any time during the life of this Agreement by either verbally communicating the request to your Marketing Executive/Sunset MKTG representative or communicating your request via email. Unless the Parties agree otherwise in writing, all products and services added during the Term shall be governed by this Agreement.

2. Definitions

 The Sunset MKTG products, services, and other capitalized terms have the definitions as defined in this section or in the section where they first appear.

a. Ads/Ad Credits

Ad Credits are used to run advertisements across digital platforms. Ad Credits are allocated to media buy (paid placement), campaign management, and campaign optimization. Please note, the media buy allocation percentage is subject to change without notice. Ad Credit costs, including cost-per-click reporting and more, are reflected through our advertising services within the Sunset MKTG platform for return on investment (ROI) and cost-per-conversion tracking/analysis. Ad Credits are subject to the terms and conditions of the applicable 3rd Party provider (e.g., Google, Bing, YouTube, Facebook), and some services may not be available for some client products or services. You may access a performance report which includes raw data on costs, clicks, and impressions at the Google advertising account level at any time by clicking the applicable link on your Sunset MKTG dashboard. These links are available in the top right-hand corner of the Top Placement Ads®, Retargeting Ads®, or Social Targeting Ads™ pages on your Sunset MKTG dashboard. Ad Credits are non-refundable, but may be allocated to other services with a written request (email acceptable). If you cancel your recurring Ad Credit product, your credits on file will remain in your account for one billing cycle, and must be used or transferred to another product during your next monthly billing cycle or may be forfeited. If we are developing a website for you, your Ad Credits and related services cannot be used until your site has gone live with your approval. Actual ad position on 3rd Party websites is based on several factors, and top position cannot be guaranteed. Unless instructed otherwise, your Marketing Executive will optimize your Top Placement Ads® campaign to target the top three ad positions for your keywords where possible. In any billing cycle, Sunset MKTG may spend any credits you have on file. Sunset MKTG will monitor your Ad Credit spend to keep you on budget, but in rare cases, Sunset MKTG may spend over and above the number of credits you have on file. Any balance of your Ad Credit budget remaining at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle. Any negative balance remaining at the end of the Term is due at that time. We use a master advertising account with each 3rd Party Ad Credit services provider (Google, Bing, Yahoo, Facebook, etc.). We will set up an advertising account for you within our master advertising account. You acknowledge that you must use our master advertising account in order to use Ad Credits for these services. Because all of our accounts are linked within our master advertising accounts, we will not provide access to view or control your advertising or analytics accounts at the advertising account level of the respective service provider. You acknowledge that we will not transfer any advertising accounts or related account access to you at the end of the term. You can get a report of your advertising performance and Ad Credit usage by logging into the Sunset MKTG platform at any time or by contacting your Marketing Executive, if applicable.

b. Complimentary Promotions

Sunset MKTG occasionally offers Complimentary Promotions to new Clients signing a Service Agreement. Complimentary Promotions take the form of funds, credits, or creative hours added to the Client’s account to offset marketing costs under the Service Agreement. Unless otherwise stated, Complimentary Promotions may be used to offset any cost associated with the Service Agreement with the exception of 3rd Party advertising media buy. Complimentary Promotions are fully contingent on Client fulfilling the Initial Term. If you cancel the Service Agreement prior to fulfilling the Initial Term, Client must pay back all Complimentary Promotions spent on Client’s account at the time of cancellation, in addition to any applicable Early Cancellation Fees.

c. Creative Deliverables.

Creative Deliverables shall be defined as Custom Website Design, logo design, video production, photography services, the end product of any Natural Listing Ads services, and the end product of any creative service defined in Section 1.d.

d. Creative Services/Creative Credits

Our creative services include, but are not limited to, Custom Website Design, logo design, photography services, and general design and development time. All creative services are offered via Creative Credits. Creative Credits cost one dollar ($1.00) per credit. Your Service Agreement and/or Sunset MKTG Representative will outline your specific creative services package and our estimated Creative Credit bid for the services. The credit bid is provided on the estimation, based on information received from you at the time of offer, that the projected total time spent on the design and development of this project should not exceed the total number of credits listed. In the case of additional credits are required to complete the project, you will be notified before any additional charges, beyond the initial cost estimate, are incurred. In the event of increased costs, we will proceed only after receiving both approval (written or oral) and payment from the Client. Your approval of any credit increase shall be binding and incorporated into this agreement. Any unused Creative Credits paid for by Client will remain in the Client’s account for one year from the date of payment and will then expire. You may also purchase Creative Credits which may be used for any creative services. A list of Creative Credit cost for services can be provided upon request. If you have Creative Hours on file those are the equivalent of 75 Creative Credits. Creative Hours, Complimentary Creative Hours and Creative Credits are non-refundable and expire at the end of the Term. Creative Hours or Creative Credits may not be transferred to other services without our written consent. Creative Services are available at a discounted rate for Marketing Customers. Your Sunset MKTG representative can provide you with the current rates for Creative Services. Video Production services are more involved and have a different hourly rate. Please see your Service Agreement for our current Video Production hourly rates. For more information on Video Production please see Section ae. Our Creative Services necessarily require your input and cooperation. You agree to provide materials, direction, information, approvals, authorizations or decisions necessary for us to complete your project. We will work with you to complete your Creative Services project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and you will forfeit any amounts paid for the Creative Services.

e. Custom Website Design

Custom Website Design shall mean a website not based on one of our preexisting designs and that is developed pursuant to an hourly bid and scope of work signed by the Client. All Custom Website Sites will display the words Custom Website Design prominently on Client’s Service Agreement. Websites 360® and UXi® websites are never Custom Website Designs.

f. eCommerce Website Design

 This product includes eCommerce website design services built to work on some of the most popular eCommerce website platforms (BigCommerce, Shopify, WooCommerce, Websites 360 Shop App, etc.) These services may appear on your service agreement as “Shopify Design,” “WooCommerce Design,” “Woo360 Design,” or “BigCommerce Design” Website development is a fluid process dependent on several factors, including, but not limited to, Client response time on questions and approvals, Client response time for delivering website content, and requests for additional rounds of revisions. Accordingly, we cannot guarantee your website will launch on any set timeline. We will, however, strive to minimize response times on our end and bring your website live as soon as practicable. Unless you have contracted for a Custom Website Design, a site will be developed for you based on our standard website design layouts. If you require specialized functionality and/or complex design features, you will need to contract for a Custom Website Design. If you have contracted for Custom Website Design services, it will be clearly stated as “Custom Website Design” on your Service Agreement and will include both a scope of work and an estimated work hour quote. Additional information regarding Custom Website design is included in Section 1.n.

g. Email & Text Marketing

Sunset MKTG designs, creates, and sends targeted communications campaigns to your email or phone marketing list through a third-party platform. Client is responsible for all charges for operating third-party email providers and/or amount of operating contacts. Any excess charges due will accrue over the month and you will be billed for these charges by a third-party provider. Sunset MKTG agrees to comply with all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity and defamation, and regulations such as HIPAA and other applicable privacy laws.) We agree not to use email in a way that is obscene, harassing, threatening, libelous, or in any way that violates or infringes upon any 3rd Party intellectual property rights. You hereby agree to indemnify and hold harmless Sunset MKTG against any damages, losses, liabilities, and expenses arising from an alleged violation of the foregoing or otherwise relating to your use of the Email Sunset MKTG services.

i. Fees

Your Fees are the amounts you owe pursuant to your Service Agreement. Your Service Agreements will include one-time, monthly and/or annual Fees required for your use of the Services. Fees may also include additional Products and Services are added during the Term at your request.

j. Sunset MKTG Payments

Sunset MKTG Payments and related services are governed by the Sunset MKTG Payment Terms located at www.sunsetmktg.com/payment-terms (the “Payment Terms”). The Payment Terms are incorporated in full by this reference. If you use Sunset MKTG Payments services you hereby agree to be governed by the Payment Terms.

k. Marketing Client

For the purposes of this Agreement, a Marketing Client shall mean any active Client that is current on its Sunset MKTG Base Plan Fee.

l. Reputation Management

Your online reputation is vitally important in online marketing. With Reputation Management services, we will provide a dedicated Reputation Manager to help you manage your business’ online reputation. Your Reputation Manager will work with you to help improve your online reputation by reaching out to verified clients to solicit reviews on reputable review websites. Your reputation manager will also read and reply (with your permission) to reviews of your business posted throughout the internet. Your Reputation Manager will also challenge verification on questionable reviews and request customer feedback for reviews left below three stars.

m. Social Media - Posts and Management Services

If you have Social Media Management Services added to your DIFM account, we will provide a dedicated Social Media Manager to help you manage your business’ social presence across your social media platforms. Your Social Media Manager will work with you to help engage and interact with your followers, optimize your profiles, and work to create more visibility and loyalty to your brand. Included in each plan are regular postings on applicable social media platforms, branding and design, regular monitoring and communication on platforms to engage with followers, and response (with your permission) to comments, messages, posts and spam.

Your Service Agreement will outline your specific plan (Basic, Standard or Advanced) including the monthly recurring price. The Basic or Maintenance Plan includes 4 posts per month on a maximum of two social media platforms, and up to 1 hour per month of engagement on your profiles. The Standard Plan includes 8 posts per month across a maximum of 3 social media platforms, up to 2 hours of engagement per month, and up to one video per month. The Advanced Plan includes 16 posts per month on a maximum of 4 platforms, up to 4 hours of engagement per month, and up to 2 videos per month. Additional services may be added as follows: +1 Platform per month – $150/mo, +1 Post per month – $75/mo, and +1 hour of engagement per month – $75/mo. Additional Ad Credits may be added on demand for an additional monthly or one-time fee. All Social Media related services are governed by the terms of service of the platform in question (Instagram, Facebook, Twitter, LinkedIn, etc).

n. Website Hosting

Website hosting for up to one site is billed by a third party provider. We do not use the same hosting provider for all of our websites and are chosen based on the best fit for your website solution. Sunset MKTG is not liable for any overage charges and will be billed automatically by the hosting provider. You must have a website maintenance plan active with Sunset MKTG in order to guarantee website uptime. If your website goes down, Sunset MKTG is not liable for any downtime or interruption by third-party providers and you must pay us a service fee to recover your website and/or assets.

2. Compliance with Laws/Prohibited Content

Client shall not use or permit the Services to be used in violation of any applicable national, state, or local laws or regulations. Without limiting the foregoing, Client may not use any Sunset MKTG’s Services for any illegal activity including the storage or transmission of information, data, files, or links to content that violate any applicable local, state, national, or international law. This includes, but is not limited to, pirated software, copyrighted data or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all Sunset MKTG servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services, or addresses are also prohibited. Sunset MKTG may terminate this agreement if it determines, in its sole discretion, Client has violated this policy.

3. Client Obligations

In addition to making all required payments, Client shall (a) cooperate with Sunset MKTG in all matters relating to the Services and provide access to Client’s advertising accounts including Client’s Google Adwords and Analytics accounts as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Sunset MKTG to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Sunset MKTG may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. Sunset MKTG is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

4. Payment

Once you have executed your Service Agreement, you will be responsible for payment in full of all associated Fees. All Fees are due in US dollars. Unless otherwise stated, Client will pay all Fees due under this Agreement monthly, in advance. Fees for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement. For recurring Fees, the initial payment will be taken on the Effective Date, and you will be billed for subsequent Fees as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date each month is the 25th. If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless canceled as provided in Section 5 below. You acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring marketing total listed in your Service Agreement. You will be required to agree to all applicable payment authorization forms which authorize recurring billing in accordance with your agreement. Sunset MKTG shall have the right to charge your credit card or debit from your account through ACH for Fees in accordance with these Terms of Service and the Service Agreement. Client warrants the validity of any ACH information provided to Sunset MKTG and acknowledges that Sunset MKTG is entitled to debit Client’s account for any ACH fees charged to Sunset MKTG due to Client’s error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. Sunset MKTG uses a credit card updating service that automatically updates credit card numbers where a credit card has expired or been replaced. You acknowledge that Sunset MKTG has a right to charge any credit card updated in this manner in accordance with these Terms of Service and the Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.

5. Term/Termination

a. Term

The Agreement shall begin on the Effective Date and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for such period. Unless otherwise stated in the Service Agreement, all Websites 360 Site Only plans or website hosting plans have a twelve (12) month Initial Term and all other plans have a six (6) month Initial Term. Your Initial Term may be extended by any added Service Order or Online Order Form. If there is a conflict the most recent agreement’s Initial Term shall control. Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s digital marketing plan is designed based on the Initial Term defined in Client’s Service Agreement. After the Initial Term, the Term will be automatically renewed for successive one-month periods (each, a “Renewal Term”) or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)

b. Cancellation

Client may cancel the services by providing no less than 30 days’ written notice of cancellation via mail or email addressed to Client’s Marketing Executive or Project Manager, as applicable. If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term. If you have completed the Initial Term, services will continue through the end of the next applicable Renewal Term and will then be cancelled.

c. Early Cancellation

You acknowledge that Sunset MKTG requires a Setup Fee for all marketing accounts. Sunset MKTG agrees to waive this Setup Fee for all accounts that sign up for an Initial Term of six (6) months or more. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both written notification of cancellation and previously waived Setup Fee. The amount of your Setup Fee is defined in your Service Agreement. If your Service Agreement does not define the Set Up Fee it shall be equal to $2,350.00. The Setup Fee payment is in addition to your monthly payments to date and may not be paid with credits on file or any prior payment. The Setup Fee must be provided within five (5) business days from our receipt of your written notice of early cancellation. No early cancellation of a Service Agreement will take effect until the Setup Fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Setup Fee, as applicable. Upon execution of this agreement, Sunset MKTG will be investing considerable work into your business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup, and opportunity costs that Sunset MKTG bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Sunset MKTG for early cancellation of the Services. Client’s who signed a Service Agreement prior to November 10, 2020 do not have a Setup Fee, but instead may cancel prior to the end of the Initial Term only by paying an Early Cancellation Fee. The Early Cancellation Fee, if applicable, is defined in your Service Agreement. You acknowledge the aforementioned investment, up-front sales, setup, and opportunity costs that Sunset MKTG bears in connection with your Service Agreement and you acknowledge that this Early Cancellation Fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Sunset MKTG for early cancellation of the Services

d. Cancellation Revocation

You may, upon written notice (email is acceptable), revoke such cancellation after you have made a cancellation request, in which case the Service Agreement will be reinstated, and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.

e. Sunset MKTG’s Right to Cancel

We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you. Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email. If we terminate this Agreement pursuant to this Section 5e., we will reimburse you for any unused credits and funds within 30 business days from the effective cancellation date.

f. Pause or Downgrade of Service

During the Initial Term, you may request a pause or a downgrade in your Services, however it will be in Sunset MKTG’s sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade during the Initial Term will be effective without a signed written confirmation from both Sunset MKTG and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. After the Initial Term a downgrade that fully eliminates the recurring portion of certain services (e.g. NLA Credits, Ad Credits, Social Media Management, Reputations Management) shall be deemed a cancellation of such services and will terminate all Sunset MKTG obligations related to that service at the end of the then current billing cycle. Further, the Parties agree that any downgrade that eliminates the Sunset MKTG Base Platform Fee (e.g. a downgrade to hosting services only) will terminate all Sunset MKTG obligations related to those removed services. The Parties agree that the preceding two sentences shall not apply to temporary downgrades accompanied by a signed agreement. Clients may upgrade or reinstate services at any time with a written or oral request.

h. Collection of Amounts Owed

You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by Sunset MKTG in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).

i. Charge Disputes

If you dispute any payment with your credit card company or bank, and such dispute is resolved in Sunset MKTG’s favor, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Sunset MKTG for the additional costs incurred in defending your payment dispute.

6. Intellectual Property.

a. Your License Grant to Sunset MKTG

During the Term, you hereby grant to Sunset MKTG a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast, and transmit any of your content, including but not limited to your website, text, images, logos, copyrights, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing Sunset MKTG to perform the Services. This license will terminate upon termination of the Service Agreement.

b. Ownership of Creative Deliverables and Content

Upon receipt by Sunset MKTG of full, unconditional payment from Client, Client shall own all rights, title, and interest in and to the Creative Deliverables created under this Agreement. Sunset MKTG will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and Sunset MKTG reserves the right to use the Creative Deliverables for advertising, publication, promotion, display or other purposes.

c. Ownership of non-custom Website Design

Notwithstanding Section 6b. and Section 6d, Sunset MKTG retains all copyrights in all non-custom website designs delivered under this Agreement in accordance with Section 1.i. Upon valid cancellation of this Agreement in accordance with Section 6, and so long as full, unconditional payment has been received by Sunset MKTG for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty-free, revocable, non-transferable license to use, copy, and publish any website design and related materials delivered to Client under this Agreement. Sunset MKTG reserves the right to revoke this license only if either (1) Client does not fulfill the Initial Term and/or pay the waived Setup Fee fee or (2) Client initiates a payment dispute for any past payment.

d. Work Product Ownership

Any copyrightable works, ideas, discoveries, inventions, patents, products, marketing data, marketing campaigns or other information (collectively, “Work Product”) developed in whole or in part by Sunset MKTG during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7a. above, shall be the exclusive property of Sunset MKTG.

e. Trademarks

All trademarks used in this agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein. Use of the Sunset MKTG trademarks without the express written consent of Sunset MKTG is prohibited.

7. Authorization and Limited License to the Access Sunset MKTG Software Platforms.

Upon execution of a marketing Service Agreement, and for so long as your Service Agreement is in effect and you are current on all applicable fees or payments, you will be granted a revocable, non-transferable, non-sublicensable, non-exclusive limited license to access the Sunset MKTG Software Platforms. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in the Sunset MKTG Platforms, including, without limitation, Sunset MKTG, our platforms, software, data, applications, methods of doing business, or any other content provided through Sunset MKTG whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Sunset MKTG Platforms and Services, are and will remain with Sunset MKTG. You may only access the Sunset MKTG Platforms via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other person to access or use the Sunset MKTG Platform or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of Sunset MKTG Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Sunset MKTG Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Sunset MKTG systems, in whole or in part; (d) bypass or breach any security device or protection used by the Sunset MKTG Platforms or Services, or access or use the Sunset MKTG Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Sunset MKTG’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Sunset MKTG’s systems or Sunset MKTG’s provision of services to any 3rd Party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other Sunset MKTG materials, including any copy thereof; (h) access or use the Sunset MKTG Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Sunset MKTG or any 3rd Party or in a way that violates any applicable law; (i) access or use the Sunset MKTG Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to Sunset MKTG’s detriment or commercial disadvantage. In addition to the other remedies Sunset MKTG may have, Sunset MKTG may terminate the foregoing license and this Agreement if it determines, in its sole discretion, that you have violated the provisions of this license.

8. Representations

By signing, you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to enter this agreement and use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to Sunset MKTG for use in conjunction with the services.

9. Agency

If you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service.

10. DISCLAIMER OF WARRANTIES

Sunset MKTG PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, Sunset MKTG’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Sunset MKTG DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, Sunset MKTG MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.

11. LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, Sunset MKTG SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO Sunset MKTG IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, Sunset MKTG IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN CLIENT’S Sunset MKTG ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.

12. Dispute Resolution

a. Good Faith and Cooperation

Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes, or controversies, and allow the other Party no less than 30 days to cure the issue or demonstrate that there is in-fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships of the other.

b. Agreement to Arbitrate

If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration in Bergen County, New Jersey by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

c. Exceptions to Agreement to Arbitrate.

Sunset MKTG may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in Trenton, New Jersey and Bergen County, New Jersey, respectively. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.

d. Costs and Attorney’s Fees:

Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.

e. Voluntary and Knowing Waiver.

BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.

13. Indemnification

You agree to indemnify, defend, and hold Sunset MKTG harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms of Service by you or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any claims it may have against Sunset MKTG arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Sunset MKTG against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.

14. Non-Solicitation

You agree not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of Sunset MKTG or its subsidiaries, or induce the termination of employment of any Sunset MKTG employee during the Term and for a period of three (3) years following the termination of this Agreement.

15. Miscellaneous

a. Choice of Law

This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of New Jersey without giving effect to conflict of laws principles.

b. Entire Agreement

These Terms of Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Sunset MKTG limits acceptance to these agreements, and objects to any other additional or different terms in the Client’s acceptance.

c. Amendment/No Waiver

We may update and change any part or all of these Terms of Service. If we update or change the Terms of Service, the updated Terms of Service will be posted at https://sunsetmktg.com/terms and we will let you know via email and/or via notification in the Sunset MKTG Platforms. If you do not agree with a modification to the Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your Initial Term or your current Renewal Term. Upon renewal, the Terms of Service published on our website will apply. Any material amendment to your Service Agreement must be contained in writing and executed by the Parties. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter.

d. Electronic Signatures

Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.

e. Severability

If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect

f. Assignment

Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon written notice to the other Party

g. No Third-Party Beneficiaries

The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.

h. Third-Party Sites and Products.

Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third party website or product does not mean we endorse, support or warranty the 3rd Party site or product. We do not warranty the performance of any third-party product or service. If you are using a Woo360 website, certain WooCommerce plugins may be required for certain website functionality. You will be required to create your own WooCommerce account to access these plugins for your website, and you may be required to pay WooCommerce an additional fee for certain plugins.

i. HIPAA.

If Client is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Sunset MKTG makes no claims or warranties regarding compliance with HIPAA.

j. EU/EEA Data Processing

To the extent that we process customer data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, such processing will be undertaken pursuant to the terms of the Sunset MKTG Data Processing Agreement (the “DPA”) located at https://sunsetmktg.com/data-processing-agreement/. Please contact your Sunset MKTG representative to receive a signed version of the DPA. The DPA is hereby incorporated by reference for all accounts whereby we process data subject to the GDPR. You acknowledge that in all cases Sunset MKTG acts as the data processor of this data and you are the data controller of the data. You are required under the GDPR to obtain and maintain documentation of the applicable legitimate purpose and consent to process any GDPR data shared with Sunset MKTG under this Agreement.

k. Google Third Party Disclaimer

Sunset MKTG resells Google AdWords as a Google Third Party Partner. For more information on this program please see Google’s “Working with a Third-Party Disclaimer” located at http://www.google.com/adwords/thirdpartypartners/

l. Bing Ads Agreement

Sunset MKTG resells Bing Ads as a Bing Ads Elite SMB Partner, if you use our services to market on Bing you agree to be bound by the Bing Ads Agreement located at: https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement.

m. Facebook Advertising Guidelines

Your use of these services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time).

n. Relationship of the Parties

The Parties to the agreement are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created

o. Referrals

Sunset MKTG may provide incentives to 3rd parties to introduce potential Clients to Sunset MKTG. From time to time, Sunset MKTG may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from 3rd party advertisement providers, payment processors, and/or other 3rd parties based on hitting revenue or advertising spend thresholds or referring potential customers to the 3rd party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by Sunset MKTG.

p. Survival

The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Sunset MKTG as of the effective date of termination.

q. Subcontracting.

Sunset MKTG may, without your consent, subcontract to any party the performance of all or any of Sunset MKTG’s obligations under this Agreement provided that Sunset MKTG remains primarily liable for the performance of those obligations.

r. Taxes.

Sales tax and/or VAT tax may be added to certain products or services in certain states and countries. Sales and VAT taxes are automatically calculated based on Client’s billing address and the product or services on Client’s invoice. Client is responsible for any sales, use or VAT taxes not collected by Sunset MKTG.

s. Call Recording.

You acknowledge that we may record Client phone calls for quality control purposes.

t. CCPA Contract Clauses.

If we are processing data for you that is protected by the California Consumer Privacy Act (CCPA) such data will be processed in accordance with our CCPA Contract Clauses located at sunsetmktg.com/ccpaclauses. If you are covered by the CCPA, it is your obligation to inform us of those obligations so that we can provide you with the CCPA Contract Clauses to sign.

u. Trade Name.

Sunset MKTG is a federally registered trademark and registered trade name of Madwire, LLC a Colorado limited liability company.

v. Communication Preferences.

You consent to receiving electronic and telephone communications from us relating to your account or the Services. These communications may involve telephone calls to any number you provide, SMS text messages to a phone number you provide, sending emails to any email address you provide, and posting communications to you in the Sunset MKTG Platforms, or in the “My Account” page. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about new features and content, special offers, promotional announcements and customer surveys via email or other methods. Please review our Privacy Policy for further detail on our marketing communications.

w. Headings.

Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section.

x. Force Majeure.

 Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.

y. Notices.

All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing.

End of Terms of Service

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