Last Updated: October 24, 2017
Sunny Distributor, Inc. d/b/a/ Sunny Health & Fitness (“SH&F”) is pleased to provide to you access to its sites, content, applications, products and services (collectively, the “SH&F Sites”), which may be branded under the SH&F name, its affiliated brand owned companies or licensed relationships. Unless otherwise stated, these terms are intended to also apply to any of SH&F’s affiliated or brand owned companies as well as licensed relationships. Importantly, these terms govern your use and our provision of the SH&F Sites on which these terms are posted including those we make available on third-party sites and platforms if these terms are disclosed to you in connection with your use thereof.
These terms constitute a contract between you and SH&F, a California corporation located at 218 Turnbull Canyon Road, City of Industry, California 91745, or between you and any SH&F affiliate as may be identified in the SH&F Sites. By accessing the SH&F Sites, your represent and warrant that you are at least 18 years old or visiting the SH&F Sites under the supervision of a parent or legal guardian. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING AND USING THE SH&F SITES. HOWEVER, THESE TERMS ARE NOT INTENDED TO IMPACT ANY RIGHTS YOU MAY OTHERWISE HAVE PURSUANT TO THE LAW APPLICABLE IN YOUR JURISDICTION OF RESIDENCE. FURTHER, IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND THOSE PARTICULAR RIGHTS, YOUR RIGHTS UNDER THE APPLICABLE LOCAL LAW WILL CONTROL. If you do not agree, you may not use the SH&F Sites. We reserve the right to terminate your access to the SH&F Sites and/or refuse service, terminate accounts or cancel orders in our discretion without advance notice and/or opportunity to cure should you fail to strictly comply with any provision of these terms.
Unless otherwise stated, these terms supersede all prior agreements with regards to the stated subject matter. However, supplemental terms and conditions may apply to certain content, services, products, applications or platforms. Any supplemental terms and conditions are in addition to these terms and, in the event of a conflict, those supplemental terms and conditions control over these terms.
We also reserve the right to update and modify these terms. Therefore, please review these terms each time you access the SH&F Sites to ensure that you are aware of the latest terms. You must immediately discontinue use and access of the SH&F Sites if you do not agree to any change to these terms. Your continued use of the SH&F Sites after any modifications thereto indicates your acceptance of the modified terms.
- SH&F Sites
The SH&F Sites are intended for your personal, noncommercial use and informational purposes only. Neither the SH&F Sites nor associated content is intended to render any form of professional, medical or healthcare advice or diagnosis and cannot be used for such purposes. This may include, for instance, information we provide to you such as articles and fitness related tips. We encourage you to consult your healthcare professional before implementing such information into your fitness and/or dietary program. Further, our products should be used in accordance with proper supervision and subject to its owner’s manual.
By accessing the SH&F Sites, you grant us permission to use your contact information in order to periodically transmit to you our newsletters or information concerning sales, coupons, and special promotions. However, you can unsubscribe by using the link from any email newsletter or your personal subscription settings.
- 2.1 – Limited Access and Use License
The SH&F Sites contain applications and content which is our or our licensors’ or licensees’ intellectual property and no element of any such application or content may be used or exploited in any way without our express written permission. Subject to the foregoing, we grant you a revocable, limited, non-exclusive, non-sublicensable, non-transferable license to access and use such content, application or associated materials for your personal and noncommercial use only.
You may not circumvent, disable, alter or manipulate any content protection system or digital rights management technology used with any SH&F Sites; decompile, reverse engineer, disassemble or otherwise remove identification, copyright or other proprietary notices; or access or use any SH&F Sites in an unlawful or unauthorized manner; or access, monitor or copy, or permit another person or entity to access, monitor or copy, any element of the SH&F Sites using a robot, spider, scraper or other automated means or manual process. You shall not upload to, distribute, or otherwise publish through the SH&F Sites any content, information, or other material that: (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under applicable law; or (c) includes any malicious applications, tracking codes or other harmful properties including, for instance, a virus or other harmful component. Further, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate or modify any aspect of the SH&F Sites or make any commercial use of any of the information derived from the SH&F Sites.
- 2.1 – Contents; Trademarks
All materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that appear as part of the SH&F Sites are copyrights, trademarks, trade dress and/or other intellectual properties owned, controlled or licensed by us. None of that material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without our prior written permission. Further, you cannot “mirror” any material contained in the SH&F Sites. Any unauthorized use of any material contained on this site may violate copyright laws, trademark laws, and various other regulations and statutes and subject you to personal liability.
The logos used and displayed in the SH&F Sites are registered and unregistered trademarks of SH&F, its subsidiary brands or identified person/entity. Nothing contained in the SH&F Sites should be construed as granting, by implication or otherwise, any license or right to use any logos displayed therein without our advance written permission. We enforce our intellectual property rights to the fullest extent of the law and expressly prohibit use of any of our logos as a “hot” link to any third party site unless establishment of such a link has been approved in advance writing by SH&F.
- 2.2 – Account Security
You may be assigned an account identification to enable you to access and use certain portions of the SH&F Sites; subject, however, that we have no obligation to investigate the authorization or source of any such access. However, you are solely responsible for taking reasonable steps to maintain the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. Further, you will be solely responsible for all access to and use of the SH&F Sites by anyone using the password and identification originally assigned to you whether or not such access to and use of the SH&F Sites are actually authorized by you, including, without limitation, all communications and transmissions, obligations and financial commitments incurred through such access or use. You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You must immediately notify us of any unauthorized use of your password, identification credentials or any other breach or threatened breach of the SH&F Sites’ security.
You agree to provide and maintain accurate, current and complete information, including your contact information for notices and other communications from us and your payment information as to any order you place with us. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness, or provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide, including contact information for a parent or guardian.
- 2.3 – Disclaimers; Limitation on Liability
ACCESS TO THE SH&F SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS.
YOU ACKNOWLEDGE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE WEBSITE, AND THAT SH&F SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THIS WEBSITE.
WE MAKE NO WARRANTY THAT: (A) THE WEBSITE, ANY LINKS OR CONTENT THEREIN WILL MEET YOUR REQUIREMENTS; (B) THE WEBSITE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR ANY CONTENT PROVIDED ON OR THROUGH THE WEBSITE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY CONTENT USED AND/OR OBTAINED BY YOU ON OR THROUGH THE WEBSITE WILL MEET YOUR SPECIFIC EXPECTATIONS.
WE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR DIRECT AND REASONABLE CONTROL. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED TWO HUNDRED AND FIFTY U.S. DOLLARS ($250.00) IN THE AGGREGATE. 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.
THESE DISCLAIMERS AND LIMITATIONS DO NOT AFFECT YOUR RIGHTS AS A CONSUMER OR PURPORT TO LIMIT LIABILITY THAT CANNOT BE EXCLUDED UNDER THE LAW IN YOUR PRINCIPAL JURISDICTION OF RESIDENCE.
- 2.4 – Inaccuracy Disclaimer
From time to time, information on the SH&F Sites may contain typographical errors, inaccuracies, or omissions. However, we reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice and absent any liability as a result thereof. Although we make every effort to display our products in price, size, color and availability as accurately as possible, in the event a product is incorrectly listed due to a typographical or any other error, we shall not responsible for such errors.
- Mobile Networks
When you access the SH&F Sites through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. You are solely responsible for any such fees and/or assessed charges.
- Links to Third-Party Sites
- Grant of License to Use Your Data and Intellectual Property
When you access any of the SH&F Sites, either directly or by submitting reviews, interacting with our content or replying to articles we publish, you grant us a royalty-free, perpetual, worldwide, assignable and transferable license and thereby expressly authorize us and our affiliates the right to utilize, publish, advertise and/or commercialize (though any channel, including, without limitation, social media, digital media, print or marketing media including audio and radio advertising) any and all of the information and/or media you have provided including, without limitation, your name, voice, image, likeness, video, film, web casts/podcasts, photographs, recorded performance, personal characteristics, biographical material and any other form of visual/audio communications in addition to trademarks, trade names, symbols, logos, trade dress, copyrights and slogans owned, used or controlled by you in conjunction with same (collectively, “User’s Intellectual Property”). By granting this license, you represent and warrant that you exclusively own all rights associated with the User’s Intellectual Property and that this license does not conflict with any existing contract(s) or agreement(s) between you and any third-party. This granted license is intended as authorization for us (or our affiliates) to advertise, market, promote, distribute, exploit and/or sell our brands, services or products. We may also edit, revise, touch-up, and adapt and combine with any other material, any photographs, drawings, films, recordings or other materials using your name and likeness or associated media.
- Order Processing
- 6.1 – Order Acceptance Policy
You will have the opportunity to review and confirm your order, including delivery address (if applicable), payment method and product details. However, your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, and it does not constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after we have processed your payment but prior to delivery, we will refund your payment.
- 6.2 – Payments; Billing
When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify us of changes to the payment information. We reserve the right to utilize third party credit card updating services to obtain current expiration dates on credit cards.
- 6.3 – Sales Taxes; Shipping
We will collect applicable sales tax and/or shipping charges on goods shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted to comply with our obligations to collect such taxes. You are solely responsible for all sales taxes and other associated taxes. All shipping delivery schedules and arrival dates are approximations and we cannot guaranty delivery by any specific date.
- Copyrights and Copyright Agent
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications of claimed copyright infringement and counter notices must be sent to our designated agent:
- California Proposition 65 Warning Disclaimer
CALIFORNIA PROP 65 WARNING – This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm
Please be advised that some of our products may contain one or more chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. To learn more, please visit: http://oehha.ca.gov/proposition-65.
- 9.1 – Waiver
No waiver of any provision of these terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms shall not constitute a waiver of such right or provision.
- 9.2 – Severability
- 9.3 – Survival
The provisions of these terms which by their nature should survive the termination of these terms shall survive such termination.
- 9.4 – Complete Agreement
These terms constitute the complete agreement between you and SH&F on the subject matter covered herein and supersede any and all prior or contemporaneous communications or agreements between us. These terms may not be modified, changed, or altered by any representative of SH&F unless the change is evidenced in writing and expressly executed by an officer of the company.
- 9.5 – Governing Law; Jurisdiction
These terms are governed by and construed in accordance with the laws of the State of California and the laws of the United States, without giving effect to any conflict of law principles. You agree that any action at law or in equity arising out of or relating to these terms shall be filed, and that venue properly lies, only in the state or federal courts located in Los Angeles County, California, United States of America, and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action. The foregoing, however, shall not limit the right to serve process in any other jurisdiction or to commence any legal action/proceeding in any other jurisdiction in order to obtain execution and/or enforcement of judgment in such other jurisdiction.
- 9.6 – Good Faith Resolution Protocol; Limitation of Action
Should a dispute arise concerning these terms, you agree to use your efforts to resolve any such matter informally. You must provide us written notice of the dispute within thirty (30) days of the dispute arising. That notice must include (a) your name, mailing address, telephone number, the email address you use or used for your order, and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the dispute, and (c) the specific relief that you are seeking. You and SH&F will then attempt to resolve that dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After sixty (60) days, you or we may commence litigation to address the issue. However, any and all legal or administrative actions against SH&F, in addition to having to satisfy all conditions precedent as set forth herein or any other legal requirements, shall be commenced no later than one (1) year from the date of occurrence giving rise to the claim.
- 9.7 – Notices
We may provide general notices to you through a posting on our website, or any mail or email to the address you provided. You must provide notices to Sunny Health & Fitness by using the contact information provided on our website or otherwise directed to firstname.lastname@example.org.