The Effective Date of these Terms is: January 1, 2011.
These Terms apply to www.thesunshineworkshop.com; www.elizabethhoadley.com; (collectively, the “Sites”), which are operated by The Sunshine Workshop and/or www.thesunshineworkshop.com (“SW” or “we,” “our,” or “us”). These Terms also apply to interactive features of www.thesunshineworkshop.com that are owned or controlled by The Sunshine Workshop, Elizabeth A. Hoadley, are available through the Sites or that interact with the Sites and post these Terms. These Terms govern your use of the Sites. These Terms do not apply to any other web site or any offline activities by The Sunshine Workshop (unless specifically stated). You agree to these Terms by accessing or using the Sites. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE THE SITES.
Table of Contents
1. The Sunshine Workshop Ownership of Site Materials
2. Your License to Use Materials On Our Site(s)
3. Information You Submit
4. House Rules
5. Copyright Complaints
6. Account Registration
7. Your Warranties
8. User Interactions and Disputes
10. Third Party Links & Content
11. Link Policy
13. Software and Other Items Available for Download
14. Disclaimer of Warranties
15. Disclaimer/Limitation of Liability
17. Termination and Modification
18. Location of Sites and Territorial Restrictions
19. Governing Law, Jurisdiction and No Class Actions
20. Updates to Terms
1. Ownership of Site Materials.
Materials. The Sites (including past, present and future versions) and all materials that are included in or are otherwise a part of the Sites, including, without limitation: graphics; layout; text; content; instructions; images; audio; videos; designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Sites; the compilation, assembly and arrangement of the materials of The Sunshine Workshop Sites; and all other materials related to the Sites (collectively, the “Materials”) are owned, controlled or licensed by The Sunshine Workshop, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by The Sunshine Workshop, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under this Terms are hereby reserved for The Sunshine Workshop and/or its members, subsidiaries, affiliates or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way The Sunshine Workshop’s rights to exploit fully any or all of the Materials. You acknowledge and agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the of the Materials, or take any action whatsoever in derogation of The Sunshine Workshop’s rights therein, or in breach of, any terms and conditions contained in this Terms. You acknowledge and agree that you will not acquire or claim any rights in the Materials, or aid or abet anyone else in doing so.
Copyright/Trademarks. The entire contents of the Sites (including the Materials) are copyrighted the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, The Sunshine Workshop owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the Sites. Third-party content providers own the copyright in content that is original to them. Trademarks and service marks that appear on the Sites, including, but not limited to, those listed at http://www.thesunshineworkshop.com, are the service and trademarks of The Sunshine Workshop or affiliated companies, including, but not limited to, Quebec, Inc., 2732-9937. Without The Sunshine Workshop’s prior written permission, you agree not to display or use, in any manner, any such marks and all goodwill associated with any use by you thereof will inure exclusively to The Sunshine Workshop or their respective owners. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of The Sunshine Workshop, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the Sites.
2. Your License to Use Material On Our Site
Prohibited Activities. You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard Internet browser or search engine); (b) fail to follow the instructions provided on the Sites in a “robots.txt” file or similar mechanism (to the extent that you provide standard search engine services to the public); nor will you (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these Terms or The Sunshine Workshop without the prior written consent of The Sunshine Workshop.
3. Information You Submit.
User Content. The Sites may provide you and others with the opportunity to participate in forums, blogs, groups, message boards, social networking, social communities and other communication functionality (collectively, “User Forums”) and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to The Sunshine Workshop or the Sites, including, without limitation, photographs, writings, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, “User Content”).
License to The Sunshine Workshop for User Content. You grant to The Sunshine Workshop the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever in all formats; on or through any media, software, formula or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that The Sunshine Workshop is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Sites or The Sunshine Workshop, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and or services using such User Content; or creating informational articles based on or advertising our products and services, and without compensation of any kind. You further perpetually and irrevocably grant The Sunshine Workshop the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or compensation to you. You also grant to The Sunshine Workshop the right to sub-license and authorize others to exercise any of the rights granted to The Sunshine Workshop under these Terms; and each such third party will be entitled to benefit from the rights and licenses granted to The Sunshine Workshop under these Terms. You further authorize The Sunshine Workshop to publish your User Content in a searchable format that may be accessed by users of the Sites and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
The Sunshine Workshop’s Obligations Regarding User Content. You agree that The Sunshine Workshop has no obligation to pre-screen, monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees’ licensed rights to your User Content. You further acknowledge and agree that The Sunshine Workshop will not have any obligation to, but may review, monitor, display, accept or exploit any User Content and The Sunshine Workshop may, in its sole discretion, delete, edit, distribute, move, block access, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that The Sunshine Workshop reserves the right to treat User Content on the Sites, or on certain portions of the Sites, as content stored at the direction of users for which The Sunshine Workshop will not exercise editorial control except to enforce the rights of third parties and the content restrictions set forth in our User Forums House Rules when notice of such violations are directed to The Sunshine Workshop’s attention. User Content posted may not be maintained on the Sites by us for any period of time, we may delete it at our discretion and you have no right to access or control any User Content that you provide. You agree and understand that The Sunshine Workshop is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
Your Obligations Regarding User Content. You agree that you must evaluate, and bear all risks associated with, the use of any of User Content, including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Content. As The Sunshine Workshop may not pre-screen User Content, you bear legal responsibility for others’ exposure to any offensive indecent or objectionable content in User Content.
Product Submissions Prohibited. The Sunshine Workshop does not accept unsolicited submissions for motion pictures, television programs, web sites, articles, e-books, or other products or services. It is our intent to avoid the possibility of future misunderstandings when projects developed by or on behalf of The Sunshine Workshop (whether internally or by third parties) might seem to others to be similar to their The Sunshine Workshop creative ideas or materials. Therefore, please do not make any such unsolicited submissions to The Sunshine Workshop through this Site(s), including User Forums, by e-mail, text message or otherwise. However, if you decide to make any such unsolicited submission, you hereby grant to The Sunshine Workshop the right and license to the submission as if it were User Content as specifically set forth above.
4. House Rules.
As a user of the Sites, you agree that the House Rules located at http://thesunshineworkshop.com/House-Rules are there to help you understand the conduct that is expected of The Sunshine Workshop users who participate in User Forums, including any social networking opportunities on the Sites. In addition to the House Rules, we ask that your User Content relate to the content on the Sites and should be intended to add to the discussion and community on the Sites. It should not include irrelevant topics or postings. Your participation in the User Forums is subject to all the Terms, including the House Rules. We reserve the right, in our sole discretion, to monitor and screen all User Content submitted to the Sites and may disregard any User Content that, in our sole discretion, violates the House Rules or the Terms, or that we otherwise find objectionable.
5. Copyright Complaints.
We respect the intellectual property rights of others, and we prohibit users from posting, sharing, transmitting or otherwise making available any materials that infringe upon another party’s intellectual property rights. However, The Sunshine Workshop material is posted on the Sites by third parties not within our control, and we are under no obligation to and do not review all content on the Sites for the inclusion of illegal or impermissible content. However, pursuant to our Infringements Policy, The Sunshine Workshop does not to permit material known by us to infringe another party’s copyright to remain on the Sites. In accordance with the Digital Millennium Copyright Act (the “DMCA”) and other applicable law, we will promptly remove or disable access to the allegedly infringing material when we receive proper notification of an alleged copyright infringement as described below. Further, we will terminate, in appropriate circumstances and at our sole discretion, the accounts of members who are deemed to be repeat infringers. If you believe any material on the Sites infringes a copyright, you should visit our Infringements Policy and provide us with written notice.
6. Account Registration.
Certain areas of the Sites may require registration or may otherwise ask you to provide information to participate in certain features, such as our User Forums, in order to receive electronic newsletters or mobile alerts or to access certain Materials or post User Content or to participate in social networking activities. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Materials or User Content or participate in certain features of the Sites or engage in social networking. When you provide information to the Sites, you agree to provide only true, accurate, current and complete information.
If you register on the Sites and/or create a personal profile, you agree to accept responsibility for all activities that occur under your account or password, if any, and you agree you will not sell, transfer or assign your membership or any membership rights. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Sites using your name in whole or in part. The Sunshine Workshop reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability.
7. Your Warranties.
You represent and warrant that: (i) you are at least eighteen (18) years of age and you have the legal right and capacity to enter into these Terms in your jurisdiction and to comply with these Terms; (ii) all information you provide to The Sunshine Workshop is true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms. You also agree that you will be responsible for obtaining and maintaining all modem, telecommunications equipment, computer hardware, wireless devices and other equipment needed for access to and use of the Sites and you will be responsible for all charges related thereto.
8. User Interactions and Disputes.
You are solely responsible for your interaction with other users of the Sites, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
The Sites may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes or promotion.
10. Third Party Links & Content.
11. Linking Policy.
The Sunshine Workshop grants you the revocable permission to link to the Sites; provided, however, that your web site, or any third party web sites that link to the Sites: (a) may only link to a Site’s home page unless The Sunshine Workshop has provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on the Sites or otherwise mirror any part of the Sites; (c) must not imply that The Sunshine Workshop or the Sites are endorsing or sponsoring it or its products, unless The Sunshine Workshop has given its prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in The Sunshine Workshop’s sole opinion, harm The Sunshine Workshop or its products or services; (e) must not use any The Sunshine Workshop trademarks without the prior written permission from The Sunshine Workshop; (f) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in The Sunshine Workshop’s sole opinion); and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Sites, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, The Sunshine Workshop reserves the right to prohibit linking to the Sites for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
Mobile Features. The Sites may offer features and services that are available to you via your mobile phone. These features and services may, include, without limitation, the ability to upload content to the Sites, receive messages from the Sites, download applications to your mobile phone or access the Sites’ features (collectively, the “Mobile Features”). Standard messaging, data and other fees may be charged by your carrier to participate in Mobile Features. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
Terms of Mobile Features. You agree that the Mobile Features for which you are registered may send communications to your mobile device. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify The Sunshine Workshop of any changes to your mobile number and update your account on the Sites to reflect the this change.
13. Software Available for Download.
Any items that we make available for download or use from the Sites and/or our servers (the “The Downloadable Items”) are the copyrighted work of The Sunshine Workshop or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such DOWNLOADABLE ITEMS. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Sites, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
14. Disclaimer of Warranties.
THE SITES, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, The Sunshine Workshop AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “The Sunshine Workshop PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITES; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITES; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITES; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM The Sunshine Workshop OR VIA THE SITES. IN ADDITION, THE Sunshine Workshop PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
The Sunshine Workshop PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE Sunshine Workshop PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. The Sunshine Workshop PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND The Sunshine Workshop 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 THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
BY ACCESSING OR USING THE SITES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES.
15. Disclaimer/Limitation of Liability.
LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL The Sunshine Workshop 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 SITES; (B) THE MATERIALS; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE Sunshine Workshop PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITES’ TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM 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 Sunshine Workshop 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 SITES). IN NO EVENT WILL The Sunshine Workshop PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES, COUNTRIES, PROVINCES AND TERRITORIES 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 Sunshine Workshop PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00).
YOUR ACCESS TO AND USE OF THE SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY OF THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES OR THE MATERIALS.
WAIVER OF UNKNOWN CLAIMS. BY ACCESSING THE SITES, 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, THE BENEFITS OF THE MICHIGAN COMPILED STATUTES, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend (if requested by The Sunshine Workshop), indemnify and hold harmless the Sunshine Workshop Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the Sites or activities in connection with the Sites; (c) your breach or anticipatory breach of these Terms; (d) 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; (e) information or material transmitted through your computer or other device used to access the Sites, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) The Sunshine Workshop Parties’ use of your information. You will cooperate as fully required by The Sunshine Workshop Parties in the defense of any claim. Notwithstanding the foregoing, The Sunshine Workshop Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The Sunshine Workshop Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Sunshine Workshop Parties.
17. Termination and Modification.
Termination. The Sunshine Workshop reserves the right to terminate your access to and use of the Sites, in its sole discretion, without notice and liability, including, without limitation, if The Sunshine Workshop believes your conduct fails to conform with these Terms. The Sunshine Workshop also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Sites or The Sunshine Workshop. Any violation, or potential violation, of these Terms may be referred to law enforcement authorities.
Modifications. The Sunshine Workshop reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Materials available on the Sites, without limitation, in whole or in part, including the cessation of all activities associated with the Sites, with or without notice. You agree that The Sunshine Workshop will not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites or any part thereof.
What happens upon Termination? Upon termination of your access to the Sites, or upon demand from The Sunshine Workshop, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the Sites, including links to the Sites; and (b) destroy all Materials obtained from
the Sites and all related documentation.
18. Location of Sites and Territorial Restrictions.
Location of Sites. The information provided on the Sites is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject The Sunshine Workshop to any registration requirement within such jurisdiction or country. The Sunshine Workshop controls and operates the Sites from offices located in the United States and Canada and makes no representations or warranties that the information, products or services contained on the Sites are appropriate for use or access in other locations. Anyone using or accessing the Sites from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Sites and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
Software. Software related to or made available by the Sites may be subject to United States export controls. Thus, no software from the Sites may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Sites, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
19. Governing Law, Jurisdiction and No Class Actions.
GOVERNING LAW/JURISDICTION. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITES, THE USE OR ACCESS THEREOF, OR THESE TERMS MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN GENESEE COUNTY, MICHIGAN, AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN GENESEE COUNTY, MICHIGAN, FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
Arbitration. Except with respect to the protection and enforcement of the intellectual property rights of the Sunshine Workshop Parties and their rights to seek and/or obtain injunctive or equitable relief, any claim, cause of action or proceeding arising out of or relating to the Terms or the Sites shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) as supplemented by AAA’s Supplementary Procedures for Consumer-Related Disputes. Any such claim, cause of action or proceeding shall be arbitrated on an individual basis and without resort to any form of class action. The arbitration shall be conducted in Flint, Michigan, and the Federal Arbitration Act, and not any state law concerning arbitration, shall apply. The arbitration award shall be final and exclusive, and the prevailing party in the arbitration may file an action in court to confirm and to enforce the arbitration award. Any such action, or any claim, cause of action or proceeding not subject to arbitration as set forth in this section, shall be filed and adjudicated in a state or federal court in Genesee County, Michigan, and all parties agree to submit to the personal jurisdiction of those courts. You irrevocably waive any rights to seek and/or obtain injunctive or other equitable relief and any defense of forum non convenient. Should either party pursue any other judicial or administrative action with respect to any matter included within the scope of this binding arbitration provision, the responding party will be entitled to recover its costs, expenses and attorneys’ fees incurred as a result of such action.
20. Updates to Terms.
The Sunshine Workshop reserves the right to modify or add to these Terms or any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Sites so that they are accessible via a link on the home page of the Sites, and that your use of the Sites after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms before using the Sites. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Sites from that point forward.
The failure of The Sunshine Workshop to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit The Sunshine Workshop’s rights with respect to such breach or any subsequent breaches. No waiver by The Sunshine Workshop of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of The Sunshine Workshop. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. The Sunshine Workshop may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without The Sunshine Workshop’s prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against The Sunshine Workshop by virtue of having drafted them.