These Terms and Conditions (the “Agreement”) are a binding agreement between you (“Licensee” or “you”) and Sunset Messages, LLC (“Sunset Messages”). This Agreement governs your use of any mobile application, website, or Internet portal (including all related documentation or forms) associated with Sunset Messages, however accessed (collectively, the “Service”). The Service is licensed, not sold, to you.
BY DOWNLOADING, INSTALLING, USING, OR OTHERWISE ACCESSING THE SERVICE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, USE, OR OTHERWISE ACCESS THE SERVICE AND DELETE IT FROM YOUR MOBILE DEVICE OR COMPUTER.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT IN ACCORDANCE WITH THE TERMS BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SUNSET MESSAGES, LLC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AS DISCUSSED BELOW AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
License Grant. Subject to the terms of this Agreement, Sunset Messages grants you a limited, non-exclusive and nontransferable license to download, install, use, and access the Service for your personal, non-commercial use on any mobile device or personal computer owned or otherwise controlled by you (“Device”) strictly in accordance with the Service’s documentation and this Agreement.
2.1. You represent that you are at least 18 years old, or otherwise of legal age to enter into this Agreement.
2.2. You may not upload Objectionable Content onto the Service. Sunset Messages has a “zero tolerance” policy for those who upload Objectionable Content onto the Service. Objectionable Content includes but is not limited to the following:
2.2.1. Defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups.
2.2.2. Realistic portrayals of people or animals being killed, maimed, tortured, or abused, or content that encourages violence.
2.2.3. Depictions that encourage illegal or reckless use of weapons and dangerous objects or facilitate the purchase of firearms or ammunition.
2.2.4. Overtly sexual or pornographic material, defined by Webster’s Dictionary as "explicit descriptions or displays of sexual organs or activities intended to stimulate erotic rather than aesthetic or emotional feelings."
2.2.5. Conduct or materials used to avoid probate or other proper legal process for the administration of an estate.
2.2.6. Illegal or criminal conduct/materials, including information or conduct related to any ongoing criminal activity, or content that may otherwise constitute an intentional infliction of emotional distress on an intended viewer.
You understand that Sunset Messages will not review Content, as defined in Section 3.1 below, uploaded onto the Service for compliance with this policy. However, if it is discovered by some other means and reported to Sunset Messages that Objectionable Content was uploaded onto the Service, your account may be banned and encrypted data regarding your account and/or User Contributions may be sent to third parties for investigation and/or legal process. Such action may be taken without additional inquiry by Sunset Messages and without notice to you. Sunset Messages reserves the right to immediately and without notice revoke the license and restrict access to the Services for anyone who uploads Objectionable Content or otherwise engages in unlawful conduct or breaches any other term of this Agreement.
2.3. You are responsible for any activity that occurs through your account, and you agree you shall not sell, transfer, license or assign your account or any account rights. With the exception of family members, executors, trustees, or other representatives who may be legally authorized to create accounts on behalf of another person, Sunset Messages prohibits the creation of and you agree that you shall not create an account for anyone other than yourself. You also represent that all information you provide or provided to Sunset Messages upon registration and at all other times while using the Services will be true, accurate, current and complete and you agree to update all information as necessary to maintain its truth and accuracy, including the contact information for any third parties who may receive Messages.
2.4. You shall not reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Service or any part thereof.
2.5. You shall not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service, including any copy thereof.
2.6. You shall not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service, or any features or functionality of the Service, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time.
2.7. You shall not remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Service;
2.8. You shall not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.
2.9. You shall not change, modify, adapt or alter the Service or change, modify or alter another website so as to falsely imply that it is associated with the Service or Sunset Messages.
2.10. You shall not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any Sunset Messages page is rendered or displayed in a user's browser or device.
2.11. You shall not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
3.1. You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, "Content") that you submit on or via the Service.
3.2. You represent and warrant that: (i) you own the Content transferred by you on or through the Service; (ii) the transferring and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you, or your estate, agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.
3.3. The Service contains content owned or licensed by Sunset Messages ("Sunset Messages Content"). Sunset Messages Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Sunset Messages, Sunset Messages owns and retains all rights in the Sunset Messages Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Sunset Messages Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Sunset Messages Content.
3.4. You agree that you shall obtain signed permission from any person you film, record, or in any other manner capture their likeness (“Film”). You further agree that you shall not Film any individual enjoying a reasonable expectation of privacy, to include such places, but are not limited to, private residences, bathrooms, dressing rooms, private meetings, and professional services (such as doctor’s offices), without their express written consent.
3.5. You are responsible for keeping your password secret and secure.
3.6. This Service can create and distribute, at your request and to the users you specify, a custom QR Code and alphanumeric code linking to your Content (“Messages”). You are responsible for ensuring that a copy of your Message(s), including any related instructions, is/are made available to your estate and/or any executor, trustee, testator, or any other designated party (“Designated Person”) for distribution in accordance with your specifications.
3.7. You agree that your Designated Person is responsible for the timely distribution of any Messages. In the event that your Designated Person(s) fail(s) to take proper action or cannot be found, Sunset Messages is not responsible or liable and need not take any further action.
3.8. You agree that Sunset Messages is not responsible for any inaccurate or outdated information you provide to it or any Designated Person. You agree that in the event any intended viewer of your Messages cannot be found based on the information you provided to Sunset Messages and/or any Designated Person, Sunset Messages is not responsible or liable and need not take any further action. Additionally, in the event that a non-intended viewer is able to access your Messages, either through a Designated Person, intended viewer, or some other means, Sunset Messages is not responsible or liable.
3.9. You agree not to use the Services maliciously, to cause emotional disturbance, unlawfully or for any illegal purpose, including to avoid probate or other proper legal process for the administration of an estate.
3.10. You agree that you are responsible for all data charges you incur through use of the Service.
3.11. You agree that your Content is not guaranteed protection on any of the Sunset Messages’ Services and information may be lost or deleted without warning for a variety of reasons, both within and outside of the control of Sunset Messages. As such, you agree to be solely responsible for ensuring that any and all desired copies of your Content are downloaded or saved in a separate and secure location. Sunset Messages may not be held responsible for any failure to backup or save your Content from the Services.
3.12. Upon termination, involuntary or voluntary, all licenses and other rights granted to you in this Agreement will immediately cease. If you have created Messages, the Content attached to Messages will be available for the longer of either: 1.) a period of six months after the QR Code is scanned or 2.) six months after your death and then will be deleted. Otherwise, your Content will be kept on Sunset Messages’ servers for a period of one month after termination, unless extended by court order or written agreement between the parties, and, after that time, Sunset Messages will delete your Content.
Reservation of Rights.
4.1. You acknowledge and agree that the Service is provided under license, and not sold, to you. You do not acquire any ownership interest in the Service under this Agreement, or any other rights thereto other than to use the Service in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Sunset Messages reserves and shall retain its entire right, title, and interest in and to the Service, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4.2. Sunset Messages reserves the right, in its sole discretion, to change this Agreement ("Updated Agreement") from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Agreement become effective. You agree that we may notify you of the Updated Agreement by posting them on the Service, and that your use of the Service after the effective date of the Updated Agreement (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Agreement. Therefore, you should review this Agreement and any Updated Agreement before using the Service. The Updated Agreement will be effective as of the time of posting, or such later date as may be specified in the Updated Agreement and will apply to your use of the Service from that point forward. This Agreement will govern any disputes arising before the effective date of the Updated Agreement.
4.4. Sunset Messages reserves the right to refuse access to the Service to anyone for any reason at any time.
4.5. Sunset Messages may, but has no obligation to, remove and/or block reported Content, accounts, or users creating or containing Content that it determines in its sole discretion may violate this Agreement.
Collection and Use of Your Information.
6.1. Sunset Messages may from time to time in its sole discretion develop and provide website and/or mobile application (“Application”) updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Sunset Messages has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
6.2. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Third Party Materials. The Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“_Third Party Materials_”). You acknowledge and agree that Sunset Messages is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Sunset Messages does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Your correspondence and business dealings with third parties found through the Service are solely between you and the third party.
Term and Termination.
8.1. The term of this Agreement commences when you download, install, use, or otherwise access the service and will continue in effect until terminated by you or Sunset Messages as set forth in this Section 10.
8.2. Sunset Messages reserves the right to modify or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you.
8.3. You may terminate this Agreement voluntarily by sending written notice of such termination to Sunset Messages and by deleting the Application and all copies thereof from your Device. This Agreement and your use of the Services will also be considered voluntarily terminated upon your death or incapacitation. Involuntary termination takes place in the event you violate this Agreement or any applicable laws. However, even after termination, voluntary or involuntary, your rights and obligations under this Agreement at Sections 9-18 shall remain binding upon you or your estate.
8.4. If your access to the Service is voluntarily terminated by you, you are responsible for ensuring that, prior to termination, you have downloaded or otherwise saved your Content or other data. After termination, Sunset Messages reserves the right to delete your Content, effective immediately. In the event your account is terminated for a violation of this Agreement or any applicable laws, including an investigation or allegation related to Objectionable Content, access to the Content and all other data will be cut off immediately, and you will no longer be able to access your Content or data.
8.5. Upon termination, all licenses and other rights granted to you in this Agreement will immediately cease. If you have created Messages, the Content attached to Messages will be available for the shorter of either: 1.) a period of six months after the QR Code is scanned or 2.) six months after your death. After this time, we reserve the right to delete the Content, unless extended by court order or written agreement between the parties.
8.6. Termination will not limit any of Sunset Messages’ rights or remedies at law or in equity.
Disclaimer of warranties.
9.1. THE SERVICE, INCLUDING, WITHOUT LIMITATION, SUNSET MESSAGES CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER SUNSET MESSAGES NOR ANY OF ITS AFFILIATES, PARENT AND SUBSIDIARY COMPANIES, EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE "SUNSET MESSAGES PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE SUNSET MESSAGES CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO SUNSET MESSAGES OR VIA THE SERVICE. IN ADDITION, THE SUNSET MESSAGES PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
9.2. THE SUNSET MESSAGES PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE SUNSET MESSAGES PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SUNSET MESSAGES PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE SUNSET MESSAGES PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT.
9.3. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
9.4. THE SUNSET MESSAGES PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
9.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of liability; waiver.
10.1. UNDER NO CIRCUMSTANCES WILL THE SUNSET MESSAGES PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE SUNSET MESSAGES CONTENT; (C) YOUR CONTENT OR MESSAGES; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE SUNSET MESSAGES PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE SUNSET MESSAGES PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE SUNSET MESSAGES PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE SUNSET MESSAGES PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).
10.2. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OR ARE RELATED TO SUNSET MESSAGES’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE SUNSET MESSAGES PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE SUNSET MESSAGES PARTIES.
10.3. BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE ANY LAW OF ANY STATE, TERRITORY, OR COUNTRY WHICH PROVIDES OR HAS THE EFFECT AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
10.4. SUNSET MESSAGES IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE THE SUNSET MESSAGES PARTIES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
Indemnification. You and your estate expressly agree to defend (at Sunset Message’s request), indemnify, and hold the Sunset Messages Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content, Messages, or your access to or use of the Service; (ii) your breach or alleged breach of this Agreement, including any representations or warranties herein; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Sunset Messages in the defense of any claim. Sunset Messages reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Sunset Messages.
12.1. Except if you opt-out (as provided at Section 14.4 below), you agree that all disputes between you and Sunset Messages (whether or not such dispute involves a third party) with regard to your relationship with Sunset Messages, including without limitation disputes related to this Agreement, your use of the Service, and/or rights of privacy and/or publicity, or any of the dealings between you and Sunset Messages, will be resolved by binding, individual arbitration to be held in either Chesapeake, Virginia or Norfolk, Virginia. For residents outside the United States, arbitration shall be initiated in Chesapeake, Virginia or Norfolk, Virginia, and Sunset Messages and you agree to submit to the personal jurisdiction of any state court in Chesapeake, Virginia and/or the federal court in Norfolk Virginia to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. You may bring claims only on your own behalf. Neither you nor Sunset Messages will participate in a class action or class-wide arbitration for any claims covered by this Agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Sunset Messages is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. Judgment on the award rendered by the arbitrator shall be entered in Chesapeake, Virginia or Norfolk, Virginia. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
12.2. You shall bear the cost of any arbitration filing fees and arbitration fees, subject to the exceptions in this clause. In the event that you cannot afford to pay part or all of the associated fees for arbitration, and upon written notice by you to Sunset Messages within five days of filing a claim, Sunset Messages agrees to pay part or all of the fees associated with arbitration for any claims up to $25,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney's fees and expert witness costs unless Sunset Messages is otherwise specifically required to pay such fees under applicable law. Notwithstanding the foregoing, Sunset Messages and you agree not to seek any attorney's fees and expert witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose.
12.3. The arbitration shall be conducted by a single arbitrator, governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and administered by the AAA. The AAA Rules and fee information are available at www.adr.org, or by calling the AAA at 1-800-778-7879.
12.4. You may opt out of this agreement to arbitrate. If you do so, neither you nor Sunset Messages can require the other to participate in an arbitration proceeding. To opt out, you must notify Sunset Messages in writing within thirty (30) days of the date that you first became subject to this arbitration provision. You must use this address to opt out:
Sunset Messages, LLC
Att: General Counsel, Arbitration Opt-Out
555 Belaire Avenue, Ste. 340
Chesapeake, VA 23320
12.5. You must include your name and residence address, the email address you use for your Sunset Messages account, and a clear statement that you want to opt out of this arbitration agreement.
12.6. Notwithstanding the proceeding clauses of this section 14, any disputes arising out of or relating to arbitral jurisdiction, timeliness of claims, and preclusive effects of prior judicial or arbitral decisions shall be subject to arbitration in accordance with this section 14.
12.7. If any provision within these arbitration provisions is found to be illegal or unenforceable, that specific provision will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Sunset Messages and you agree to waive, to the fullest extent allowed by law, any trial by jury.
Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any principles of conflicts of law. For any action at law or in equity relating to the arbitration provision of this Agreement or any of the dealings of the Parties if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with Sunset Messages exclusively in the state court located in Chesapeake, Virginia or the federal court located in Norfolk, Virginia, and to submit to the personal jurisdiction of the Commonwealth of Virginia for the purpose of litigating all such disputes.
Export Regulation. The Service may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Service to, or make the Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service available outside the US.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term in a valid and enforceable manner and all other provisions of this Agreement will continue in full force and effect.
Entire Agreement. This Agreement constitutes the entire agreement between you and Sunset Messages with respect to the Service and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Service.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power in this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power of this Agreement preclude further exercise of that or any other right of this Agreement. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.