These GENERAL TERMS OF SERVICE (“TOS”) are entered into as of the Effective Date by and between SUNSET RAINBOW, LLC. (“SR”, “WE”, “OUR” or “US”), a Florida company, and a business or individual (“subscriber,” “YOU” or “your”). Hereafter, SR and subscriber may be collectively referred to hereafter as the “PARTIES.”
SR reserves the right to modify its Terms from time to time.
Warranty of Functionality.
Sunset Rainbow warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform in accordance with the functionality described in the Documentation applicable to such Software Service (unless the documentation is marked as being outdated); and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Sunset Rainbow will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If Sunset Rainbow is unable to restore such functionality, you may terminate the Agreement by providing written notice to Sunset Rainbow, and you will be entitled to receive a pro-rata refund of any pre-paid fees. Sunset Rainbow will have no obligation with respect to a warranty claim under this Section unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any trial or beta services.
Software Services Fees.
Fees for the subscribed Software Services (“Subscription Fees”) are set forth on our website, as may be updated by Sunset Rainbow from time to time, or as otherwise stated on an Order Form.
You agree to pay Sunset Rainbow the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide Sunset Rainbow with valid and updated credit card information or another form of payment acceptable to Sunset Rainbow. If you provide credit card information, you represent that you are authorized to use the card and you authorize Sunset Rainbow to charge the card for all payments hereunder. By submitting payment information, you authorize Sunset Rainbow to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Sunset Rainbow for purposes of acknowledging or completing any payment.
Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Sunset Rainbow within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and Sunset Rainbow will be entitled to either suspend the Services or terminate the Agreement in accordance with this agreement.
Changes in Fees.
Upon notice to you, Sunset Rainbow may increase any fees specified in an Order Form, provided the increase will not become effective until the expiration of the current Subscription Term. Sunset Rainbow may increase any fees that are not specified in an Order Form at any time, with or without notice to you.
If you believe a payment has been processed in error, you must provide written notice to Sunset Rainbow within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by Sunset Rainbow within such thirty (30) day period, the payment will be deemed final.
Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Sunset Rainbow is legally required to pay or collect any Taxes on your behalf, Sunset Rainbow will invoice you and you will pay the invoiced amount. For clarity, Sunset Rainbow will be solely responsible for taxes assessed on Sunset Rainbow based on its income.
You may terminate your subscription to use the Software and to receive Software support and updates and/or terminate the automatic renewal of your license at any time by contacting our customer support team via the contact methods specified on our website at sunsetrainbow.com. your decision to terminate your subscription to use the Software or to terminate the automatic renewal does not entitle you to a refund for amounts already paid.
SR provides products and services to help businesses meet their goals. If this relationship is abused in any way or repeatedly, we reserve the right to cancel your subscription and take legal action to protect our interests.
Our Digital Properties are maintained by US and are intended for the exclusive use and benefit of SR, its customers, prospective customers, authorized partners, vendors, prospective vendors, employees and prospective employees (collectively, the “Authorized Persons”). No other persons are authorized to visit or enter of our Digital Properties for any purpose. All information contained in the Digital Properties is our proprietary information and usage thereof shall be subject to the Standard Services License granted by SR below. Persons entering the Associated Websites, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the Standard Services License at the time of initial entry. If any unauthorized person attempts to visit or enter the Digital Properties, they shall be deemed to be accessing a computer without authorization and trespassing on the Digital Properties and they shall be liable for damages, etc. resulting therefrom. No Person, authorized or not, shall be entitled to copy, extract, decompile, or otherwise use our proprietary information, through scraping, spidering, crawling or any other technology or software used to access data located on or contained in the Digital Properties without the express written consent of SR. your violation of the provisions of any license granted by SR under these TOS or other portion of the Contract shall constitute, among other offenses, trespass, breach of contract, and access of a computer without authorization with the intent to cause damage.
Standard Services License
On the condition that you comply with all of your obligations under the Contract and subject to all the terms and conditions of Contract, WE grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license, and right to access, use, display, and run the Associated Websites and Purchased Services through a generally available web browser, mobile device or SR authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of SR) for use in connection with your business in accordance with the terms and conditions found in the Contract. This Standard Services License is in addition to other licenses we may grant in these TOS and Addenda hereto. Such additional licenses include but are not limited to the Limited Access Licenses granted in Addendum A. You agree that our Services are licensed on a per subscriber basis. your rights to access and/or utilize our Digital Properties may not be shared between you and any third party or used by any third party, except as otherwise authorized by you in accordance with the terms and conditions contained in these TOS and Third Party Access to Subscriber Data. End Users’ License On the condition that an End User complies with all of the terms and conditions of the Contract and subject to all the terms and conditions of the Contract, WE grant such End User a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access, use, display, and run the Public Services through a generally available web browser, mobile device, or SR authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of SR) to schedule classes, make purchases, and for any other use that SR currently makes available or may make available in the future through the Public Services. Limitation on Rights Granted SR reserves all rights not expressly granted in these TOS, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in our Digital Properties and all related items, including any and all copies made of the Digital Properties. By submitting End User Data you represent and warrant that you are entitled to use the End User Data and that your submission of End User Data is not in violation of any contractual restrictions or third party intellectual property rights. Restrictions subscriber shall not, in whole or in part, directly or indirectly: Reverse engineer, disassemble, decompile, translate, reproduce, modify, alter, or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure, or organization of the Digital Properties or reduce the Digital Properties to a human-perceivable format; Remove any copyright notices, logos, identification, or any other proprietary notices from the Digital Properties; Make any change to the Digital Properties or create any derivative works thereof; or Publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the Digital Properties or any part thereof.
You may Subscribe to SR Services through the SR websites. The Account Registration and setup process asks you to provide correct information about yourself. We may suspend or terminate your account and refuse use of Services if you provide any information (including a valid contact email address and phone number) that is false, misleading, inaccurate, not current or incomplete, or if SR has reasonable grounds to believe that such information is false, misleading, inaccurate, not current or incomplete or any terms in this agreement are breached. Unless you terminate your subscription in accordance with this Agreement, you agree to allow SR to automatically renew your license to use the Software for successive periods equal in length to the Initial Term (each a “Renewal Term”). For the avoidance of doubt, you are not purchasing or taking title to the Software, and the term “purchase” refers to any license granted to you by SR and any service that SR provides to you We may suspend or terminate your account and refuse use of Services if you are deemed to be using language that is deemed to be abusive to staff. Such deeming shall be at the sole discretion of SR. You authorise SR to use extracts from service-related communication on our web site (typically on the testimonials page) and other material in text form and SR may include your organisation name, market segment information and a link to your website if you have provided one. This use is conditional on SR excluding any material that may be deemed confidential. Such deeming shall be at the sole discretion of SR and will explicitly focus on service quality and Subscriber experience in use of our products.
SR reserves the right to contact you by web page, email, fax, post, Internet chat, phone text messaging (SMS) or telephone (or other means in the future as they are developed from time to time) to communicate important information regarding the use of the Service and related products and services such as but not limited to third party add-ons, widgets, components, connectors, plug-ins, applications and software. SR also reserves the right to contact any user who has administrative level access to under your subscription, regarding maintenance and upgrade issues.
You understand and agree that any E-mail processed by our system may contain the text ‘Provided by SR’. This may include a link to our website. You are solely responsible for your use of third-party email service vendors (such as Mailchimp, Mad Mimi, Constant Contact) and how the settings you select within our software affect what those vendors do on your behalf.
By using the Services, you represent and warrant that all of the individuals on any distribution list you import into the Services or create with the service for purposes of sending email to such individuals are persons with whom you have an existing business relationship.
You agree that you will not use the Services to send any commercial email message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receive such messages from you.
You agree that you will use the Services only in compliance with this Agreement, the CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). Further, in the event that this representation and warranty is false, you agree to indemnify SR for all damages, penalties and attorney’s fees incurred as a result.
SR Accessing Third Party Software
Should you ask SR to assist with transferring/pointing your website or hostname to our servers, you will provide information allowing us to access the relevant service accounts under your control (such as DNS, SSL, hosting). You grant SR and its assigns the right to access any third party software essential to maintaining the useability of SR’s service. SR will only use such access for that purpose.
SR does not guarantee the accuracy or completeness of any data conversion or data import for any data you have provided to SR.
SR will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data relating to your business.
SR has the right to use for legitimate business purposes all data and information collected in connection with this Agreement.
General Practices Regarding Use of the Service
You accept that we may disable accounts that are inactive for an extended period of time. You accept that we may log off (also referred to as sign off or sign out) users who have been inactive for a reasonable period of time or for the purposes of conducting reasonable system maintenance and repairs. you accept that we reserve the right to disable or change features of the service if those features are infrequently used by our users or at our discretion.
Website and Other Publications (Our Content)
You assume all risks concerning the suitability and accuracy of the information within the web site and publications. We may have inaccuracies or errors in our Content. We bear no responsibility for and disclaims all liability for any such inaccuracies, errors, or omissions in the web site and publications and in any other referenced or linked documents. You accept that we will, from time to time, alter information in the web site which contains pricing, market information, and/or product specifications, and that these product offerings may not be relevant, suitable or available in your country. You accept that links to other third-party sites can lead you to Content not under our control or responsibility and thus you accept that using such a third-party site is at your own risk. You accept that the inclusion of any link does not imply that SR is endorsing or is accepting responsibility for the content, products or services of third-party websites. You accept that the Content we provide is educational and information only and is not legal, taxation and/or financial advice.
You shall maintain the functional operation of all of your mobile devices, workstations, networks, and Internet connections necessary to ensure proper operation of the Purchased Services, including installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations. Prior to contacting SR concerning connectivity problems, you shall verify that you are able to properly connect to the Internet by verifying navigation through common websites such as www.cnn.com or www.google.com, and you shall verify that you are running an up-to-date version of Internet Explorer, Mozilla Firefox or Safari. Technical Requirements The communications and network interoperability for the Purchased Services require a high-speed Internet connection, modern web browser, modern smartphone and modern computer
Ownership, Maintenance and Use of Subscriber Data
Subject to provisions in these terms, subscriber shall have sole ownership of all right, title, and interest in Subscriber Data, excluding Cardholder Data. The Person who provides payment for the Purchased Services may or may not be the owner of Subscriber Data. You shall be solely responsible for resolving any dispute over ownership of Subscriber Data between you and a third party. you agree that SR shall have no obligation to be involved in any such dispute. you further agree that WE have no responsibility to determine proper ownership of Subscriber Data. WE reserve the right to, at our sole discretion; restrict access to the Purchased Services until such ownership dispute is resolved. You agree that it is your sole responsibility to provide proper documentation to SR in order to resolve any dispute over ownership of Subscriber Data. If the documentation you provide is not satisfactory, under SR’s sole judgment, WE may request further documentation. You are solely responsible for your operation of Purchased Services and maintenance of all information used in connection with the Services, including, but not limited to your intellectual property and Subscriber Data. you shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Subscriber Data. you warrant to SR that your Subscriber Data does not violate applicable law or the rights of any third party.
Operation, Maintenance, and Security of Purchased Services
WE will operate and maintain the Purchased Services. WE reserve the right to replace, modify, and/or upgrade any of the Purchased Services from time to time and at any time in our sole discretion. SR continuously improves the Purchased Services by regularly releasing updates which modify, improve, and update the Purchased Services. Any replacement, modification, or upgrade to the Purchased Services shall be treated as part of the Purchased Services for the purpose of the Contract. WE will provide all equipment, software, and security services necessary for the operation and maintenance of our host computer system, set forth in further detail in SR’s Security Policy. WE reserve the right to change the configuration of our host computer system and change or delete equipment or software from time to time and at any time. WE will provide sufficient bandwidth and processor capability to enable your use of Purchased Services and End Users use of Public Services.
Access to Subscriber Data
You may download data containing commonly requested portions of the Subscriber Data in .csv format by using the reporting and exporting tools provided to you by SR. you are responsible for maintaining the security of any Subscriber Data in your possession, including any copy of all Subscriber Data received. You may contact our Customer Service Team to request customized Subscriber Data reports. So long as you agree to pay all expenses associated with generating such reports, SR will provide you such reports within a reasonable time period. Customized reports will not contain Cardholder Data. You agree that SR may use your Subscriber Data to provide your clients with information they request through our products and services, such as your class and/or appointment schedule. You hereby agree that WE may use any portion of the End User Data associated with an End User for the purposes of displaying, to such End User, his or her schedule, purchase history, and visit history through the Connect Service. This End User Data will only be incorporated into the Connect Service upon such End User’s request. You understand that when you give a third-party administrative level access to Settings they will also be able to import/export Subscriber Data. you may grant Subscriber’s Agent(s) (as defined in the Grant of Third Party Access to Subscriber Data attached hereto as Addendum A) access to the Subscriber Data by executing and delivering to SR a signed copy of such Addendum A. Any data you designate as Subscriber Public Data shall be publicly accessible through the Public Services.
Ownership and Access to Compiled Data
Subscriber acknowledges and agrees that title, ownership, intellectual property rights, and all other rights and interests in Compiled Data are owned solely by SR and will be used by SR, in part, in connection with its Analytics Service. SR will never violate your or your clients’ privacy. SR agrees that Compiled Data will be presented in an aggregate manner only, and will not reveal proprietary or personally identifying information about you or your End Users.
Proprietary and Confidential Information
You acknowledge and agree that the Services may contain proprietary and confidential information that is protected by intellectual property and other laws. you agree not to loan, modify, lease, sell, distribute or create derivative works based on the Service. You agree not to use or display any SR trademarks, logos, product and services names or other SR material of any form (including any derivations) without our written approval or as described elsewhere in these Terms where you are a SR Partner. You may not assign, sell, distribute, lease, rent, lend, sub-license, or transfer the Subscription Services or this licence (subject to the prior written consent of SR)
Your Content and Data
We claim no intellectual property rights over the material submitted, posted or displayed via the Service. However, any material you make available to the public via our Service may be used in anonymous aggregated form (where it is aggregated in part or full with other subscribers). You accept that by letting your subscription expire, requesting your Subscription be closed or by failing to meet the Terms of Service that we may delete all your Account data permanently at a time or date of our choosing. You accept that SR does not offer in its Services to roll-back, recover or load any data from historical backups or archives. If we do this it is at our discretion and we may charge for this Service. We do not claim that our data management practices (including but not limited to marking data for deletion, permanent data deletion, restoration, backup, indexing, retrieval, archiving, importing, exporting or other data copying, moving or protecting services) are appropriate for you. You accept the responsibility of having your own practices to cover risk associated with our data management where you do not feel our practices are appropriate for you. You accept that our practices for data management may change at our sole discretion at anytime and without notice. You agree that we may use Communications with you (feedback, praise, criticisms, quotes, correspondence, support conversations and any other interactions with you) in the content of SR Websites. You agree this material we are permitted to use includes your Internet addresses (as email addresses and web addresses and any other forms including messaging) that you choose to supply us in any way as well as linking to those addresses such as your website from our website and reproducing carefully selected appropriate public material from your website including images, logos, brands and the like from your website on our testimonials website page and also in related places and materials both online and in other forms including directories that we publish. You acknowledge you are not entitled to any payment for use of this material.
Our Fair Play Promise is a policy that ensures SR delivers you consistent value and service as a paying subscriber. We will: Limit the resources (such as disk space or other resources) you are allowed to use to a reasonable amount for the subscription level you are paying for. Set limits for the common good in order to prevent one user inadvertently using excessive resources that should be shared with other users. Reserve the right to terminate service to you if you exceed your limits or abuse the service or our staff or communication channels in any way. Tell you well in advance (normally) if you breach any limits and we will give you the option of reducing your usage back below the limit or upgrading to a more appropriate plan. Be flexible and try to give you the benefit of the doubt so we will normally not prevent you operating if you breach limits briefly and return to within limits in a reasonable time. We reserve the right to vary prices or features for all Subscribers, including free file users, at any time but will always try to give you reasonable notice. Monitor your use of the system and ensure allocation of resources between user is fair using points which may be adjusted at our discretion in the event you abuse the system.
You acknowledge that you have read this agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit referrals on terms that may differ from those contained in this agreement or operate web sites that are similar to or compete with your web site. you have independently evaluated the desirability of using SR Services and you are not relying on any representation, guarantee, or statement other than as set forth in these terms and conditions.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT, CONTRACT, OR OTHERWISE, WILL WE OR OUR SUPPLIERS OR RESELLERS BE LIABLE TO you OR ANY OTHER PERSON FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF DATA, ECONOMIC LOSS, DAMAGES FOR WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND SR, LLC AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND, FITNESS FOR A PARTICULAR PURPOSE. No Liability for Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SOFTWARE CREATOR OR ITS SUPPLIERS, VENDORS or ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SR, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE is solely responsible for LICENSEE’s use of SOFTWARE. If any provision of this LICENSE is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This LICENSE is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.
GOVERNING LAW AND JURISDICTION
Any and all claims relating to this Agreement, the Software or any services provided by us will be construed in accordance with and will be governed by the laws in force in the state of Florida, United States of America.
Third Party Access to Subscriber Data
No direct access (data download/transfer) to data contained on SR servers is allowed exept thru the mechanisms EXPLICITLY provided for that purpose by SR. Should you or your third party vendor need additional access, contact SR.
SR Domain Names
Should you elect to use a SR subdomain that includes a SR owned domain name such as ‘sunsetrainbow.com’, the subdomain is owned by SR but you are allowed to use it (subject to SR contract and software limitations) while your account is in good standing.
SR Hosted Websites
SR reserves the right to terminate your subscription and service access should your site violate any local, state or national laws or if SR determines your usage of the website is unrelated or too little related to SR services.
WordPress hosted on SR Servers
Should you choose to manage a WordPress website hosted on our servers you understand that SR is not responsible for WordPress software in any way other than approving/installing modules and providing you with our own custom WordPress add ons. You also understand that you are responsible for any users accounts/activity on the WordPress site under your control. SR reserves the right to restrict WordPress resource usage, including, but not limited to disk and number of account holders. The only way to manage your WordPress site wll be thru a SR operated control panel.