Effective Date: July 1, 2020
Last Updated: July 1, 2020
Introduction and Scope.
Please review the following terms carefully. YOUR USE OF THE NEW SUNSHINE, LLC WEBSITE AND ANY SERVICES PROVIDED THEREIN IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS.
Terms and Conditions.
1. ACCEPTANCE OF TERMS.
2. SERVICES PROVIDED.
New Sunshine, LLC directly, or indirectly through an unaffiliated Internet service provider, shall provide you with electronic access, through your computer or other electronic device (collectively "Computer"), to the Information and Services provided on the Site and the ability to communicate electronically with the Site ("E-mail").
3. USE RESTRICTIONS.
The Site is a general purpose website and is not targeted towards children under 13 years of age (or under 16 years of age for California residents). By registering an account on the Site, you represent and warrant that you are (i) 18 years of age or older and (ii) have not previously been suspended or removed from the use of the Site by us. If we become aware that you are under 18, we will terminate your registration.
Your permission to use the Site is conditioned upon the following use, posting, and conduct restrictions. You agree that you will not under any circumstances:
• Access the Site for any reason other than your personal, non-commercial use solely as permitted by the normal functionality of the Site;
• Collect or harvest any personal data of any user of the Site;
• Use the Site for any unlawful purpose or for the promotion of illegal activities;
• Attempt to, or harass, abuse, or harm another person or group;
• Provide false or inaccurate information when registering an account;
• Interfere or attempt to interfere with the proper functioning of the Site;
• Make any automated use of the Site, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
• Bypass any robot exclusion headers or other measures we take to restrict access to the Site, or use any software, technology, or device to scrape, spider, or crawl the Services or harvest or manipulate data;
• Circumvent, disable, or otherwise interfere with any security-related features of the Site or features that prevent or restrict use or copying of content, or enforce limitations on use of the Site or the content accessible via the Site; or
• Transmit, upload, publish, or link to the Site any virus, worm, defect, Trojan horse, software bomb, or other malicious feature designed to damage, degrade, or disrupt in any manner the performance of the Site or another user’s browser or computer.
4. USER CODES.
As part of your registration process you may be asked to select a user name ("Name") and/or password ("Password"), or a user name and/or password may be created for you (the Name and Password are hereafter referred to as "User Codes"). The User Codes are for your personal use only. You are responsible for maintaining the confidentiality of the User Codes, and agree not to provide them to any third party. You are responsible for all statements made and acts or omissions that occur while your User Codes are being used. You are responsible for any breach of security caused by your failure to maintain the confidentiality of your User Codes. You agree to notify New Sunshine, LLC immediately in the event of loss or theft of your User Codes, or if you believe the confidentiality of your User Codes has been compromised in any way, or in the event of your learning about a possible or actual unauthorized use of the Site. New Sunshine, LLC reserves the right to revoke your User Codes at any time without prior notice.
5. ELECTRONIC RECORDING.
You acknowledge and agree that all information and data that you input during your use of the Site, including without limitation, all selections and uses of calculators and other tools included therein, and all information you have created, input or developed in connection with your use of the Site (the "User Information"), shall be deemed to become, and shall remain, the property of New Sunshine, LLC. None of the User Information shall be subject to any obligation of confidentiality on the part of New Sunshine, LLC or its officers, directors, owners, agents, employees, affiliates, or licensors ("Related Parties"), and neither New Sunshine, LLC nor its Related Parties shall be liable for any use or disclosure of all or part of any User Information. Without limiting the foregoing, New Sunshine, LLC shall exclusively own all now known or hereafter existing rights to the User Information of every kind and nature throughout the world, and shall be entitled to unrestricted use of the User Information for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the User Information.
6. LINKS TO OTHER WEBSITES AND/OR MATERIALS.
7. SOCIAL MEDIA POLICY.
Users must be eighteen (18) years of age or older to participate. Except where prohibited by law, voluntarily posting photographs, videos, comments or other material tagged with one of our promoted hashtags ("Posted Content") constitutes your consent and grant to New Sunshine, LLC ("New Sunshine"), the parent company of Australian Gold, LLC, Designer Skin, LLC, Swedish Beauty, LLC and California Tan, LLC of the irrevocable, non-exclusive, perpetual, worldwide, royalty-free, unrestricted, and unlimited right and permission, but not the obligation, to (1) utilize, reproduce, exploit, alter, edit, modify, distribute, publish, exhibit, digitize, broadcast, display, publicly perform, and prepare derivative works of the Posted Content in any form or media now or hereafter known for any and all purposes deemed by New Sunshine in its sole discretion to be reasonable and prudent uses for the purpose of furthering its valid business objectives, including but not limited to reposting the Posted Content online (e.g., on our brand websites and social media pages) and (2) use your name, online handle, and profile/avatar picture in connection with, or to reference the fact of, your Posted Content. You understand that Posted Content may be edited in the sole discretion of New Sunshine. You represent and warrant that you own all right title and interest in the Posted Content and that the Posted Content will not contain any third party trademarked or copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of such material or you are otherwise legally entitled to post the material and to grant New Sunshine all relevant licenses and permissions to use the material as contemplated herein. You agree to: not take any legal action against New Sunshine, and to release, discharge, defend, indemnify and hold harmless New Sunshine, and its directors, officers, employees, agents and affiliates, or any other person or entity acting on its behalf, from all claims in connection with the use of the Posted Content as contemplated herein. New Sunshine's page is not sponsored or endorsed by this site or any other third party.
8. INTELLECTUAL PROPERTY RIGHTS.
9. PROHIBITED COMMUNICATIONS.
New Sunshine, LLC may, but is not obligated to, monitor or review (i) any areas on the Site where users transmit or post communications or communicate solely with each other, and (ii) the content of any such communications. New Sunshine, LLC, however, will have no liability related to the content of any such communications, whether or not arising under the laws of copyright, libel, privacy, obscenity or otherwise. You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, pornographic or other material that would violate any law. New Sunshine, LLC reserves the right (but not the obligation) to remove or edit such content. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead.
If you do post content or submit material, and unless we indicate otherwise, you grant New Sunshine, LLC a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant New Sunshine, LLC and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify New Sunshine, LLC for all claims resulting from content you supply. New Sunshine, LLC takes no responsibility and assumes no liability for any content posted by you or any third party.
10. DISCLAIMERS AND LIMITATION OF LIABILITY.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL INFORMATION AND SERVICES ON THIS SITE, INCLUDING THE SITE, ITS CONTENTS, AND ANY LINKS PROVIDED ON THE SITE, ARE PROVIDED ON AN "AS IS" BASIS, AND WE DISCLAIM ALL WARRANTIES OF ANY KIND AND NEW SUNSHINE, LLC AND ITS RELATED PARTIES HEREBY EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT OR TITLE. YOU ACKNOWLEDGE AND ASSUME THE RISKS INHERENT FROM THE USE OF THE MATERIALS ON THIS SITE, AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS THAT ARISE OUT OF ITS USE. WITHOUT LIMITING THE FOREGOING, NEW SUNSHINE, LLC AND ITS RELATED PARTIES MAKE NO WARRANTY THAT (I) THE INFORMATION AND SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES AND INFORMATION WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE, (III) ANY DEFECTS WILL BE CORRECTED, (IV) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR INFORMATION WILL BE ACCURATE OR RELIABLE, (V) THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND (VI) THE QUALITY OF ANY SERVICES OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE WILL MEET YOUR EXPECTATIONS. INFORMATION ON THIS SITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NEW SUNSHINE, LLC AND ITS RELATED PARTIES MAY MAKE CHANGES TO THE INFORMATION AND SERVICES AT THIS SITE, AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE. THE INFORMATION AND SERVICES AT THIS SITE MAY BE OUT OF DATE, AND NEW SUNSHINE, LLC AND ITS RELATED PARTIES MAKE NO COMMITMENT TO UPDATE SUCH INFORMATION OR SERVICES.
SOME STATES DO NOT PERMIT LIMITATIONS OR EXCLUSIONS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY.
NEW SUNSHINE, LLC AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY HARM CAUSED BY THE TRANSMISSION, THROUGH THE SERVICES OR INFORMATION, OF A COMPUTER VIRUS, OR OTHER COMPUTER CODE OR PROGRAMMING DEVICE THAT MIGHT BE USED TO ACCESS, MODIFY, DELETE, DAMAGE, CORRUPT, DEACTIVATE, DISABLE, DISRUPT, OR OTHERWISE IMPEDE IN ANY MANNER THE OPERATION OF THE SITE OR ANY OF YOUR SOFTWARE, HARDWARE, DATA OR PROPERTY. EXCEPT AS OTHERWISE PROVIDED BY LAW, NEW SUNSHINE, LLC AND ITS RELATED PARTIES SHALL HAVE NO LIABILITY FOR LOSSES CAUSED BY THE NEGLIGENCE, ACTIONS OR FAILURE TO ACT OF ANY THIRD PARTY PROVIDER, AND TO THE EXTENT PERMITTED BY LAW, NEITHER NEW SUNSHINE, LLC, ITS RELATED PARTIES, NOR ANY OF NEW SUNSHINE, LLC’S PROVIDERS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER (REGARDLESS OF WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE), AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OF ANY THIRD PARTY SITE REFERENCED OR LINKED TO FROM THIS SITE. IN NO EVENT SHALL NEW SUNSHINE, LLC’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU FOR ACCESSING THIS SITE. ANY INFORMATION OR DOCUMENTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OF LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR DOCUMENTS. IF YOU ARE DISSATISFIED WITH THIS SITE, OR ANY PORTION THEREOF, YOUR EXCLUSIVE REMEDY SHALL BE TO CEASE USING THE SITE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OF DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THE ABOVE LIMITATIONS OF LIABILITY DO NOT APPLY TO RESIDENTS OF, OR USE OF THE WEBSITE WITHIN, THE STATE OF NEW JERSEY,
12. YOUR REPRESENTATIONS AND WARRANTIES.
You hereby represent and warrant that you are of the age of majority and that all information provided by you during the registration process is true, correct and complete.
14. GENERAL TERMS.
You agree that any cause of action related to or arising out of your relationship with New Sunshine, LLC must commence within ONE (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
You hereby acknowledge and agree that any and all User Information may be accessed through the Internet, and hereby acknowledge and agree that there can be no assurance that the User Information, or any Information provided to you through the Services, or any communication through E-mail will remain secure. In addition, New Sunshine, LLC may disclose, license or otherwise commercially exploit User Information to its Related Parties, as well as any governmental entity, or other third party (a) for any purpose related to the conduct of New Sunshine, LLC 's business or to offering, providing or maintaining the Information or Services, (b) to comply with applicable rules, orders, subpoenas or other legal process, or in order to give information to any government agency or official requesting such information, or (c) for any other business purpose.
16. GOVERNING LAW AND JURISDICTION.
By accessing this Site, you and New Sunshine, LLC agree that all matters relating to your access to, or use of, this Site shall be governed by the federal laws of the United States of American and the state laws of the State of Indiana, without regard to conflicts of laws principles thereof.
If any dispute or disagreement between you and New Sunshine, LLC shall arise in connection with any interpretation of this Agreement, or its performance or nonperformance, the parties agree to submit to arbitration, in accordance with these provisions. The parties further agree that the arbitration process agreed upon herein shall be the exclusive means for resolving all disputes made subject to arbitration herein. Except, either party seeking equitable or injunctive relief may apply to a federal court in the Southern District of Indiana or in state court in Marion County, Indiana. Subject to this Section 12, you agree that all claims and disputes between the parties shall be resolved by binding arbitration by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The arbitration award shall be final and binding regardless of whether one of the parties fails or refuses to participate in the arbitration. The arbitrator shall not have the power to amend this Agreement in any respect. The arbitral award may be entered as judgment and enforceable by any court of competent jurisdiction. You and New Sunshine, LLC further agree that any arbitration held pursuant to this Agreement will be held in the City of Indianapolis, Marion County, Indiana, unless otherwise agreed to by both parties to this Agreement. All arbitration proceedings hereunder shall be confidential. Neither party shall disclose any information about the evidence adduced by the other in the arbitration proceeding or about documents produced by the other in connection with the proceeding, except in the course of a judicial, regulatory, or arbitration proceeding, or except as may be requested by governmental authority. Before making any disclosure as permitted by the preceding sentence, the party shall give the other party reasonable notice of the intended disclosure and an opportunity to protect its interests. Expert witnesses and stenographic reports shall sign appropriate nondisclosure agreements. A copy of the Code, Rules, and Fee Schedule of the AAA may be obtained by contacting the AAA via mail at: 225 North Michigan Avenue, Suite 2527, Chicago, Illinois, 60601-7601. The parties agree that all arbitrators selected shall be attorneys. This provision shall supersede any contrary rule or provision of the forum. This provision constitutes an express waiver of the right to court, jury, or administrative review. New Sunshine, LLC is engaged in commerce using the United States Mail and Telephone service. Therefore, this Agreement is subject to the Federal Arbitration Act, 9 U.S.C. §1-14, as amended from time to time.
20. ENTIRE AGREEMENT; SEVERABILITY.