Last Updated: 2/24/2016
1. ACCEPTANCE OF TERMS
2. TERM AND TERMINATION
We may modify this Agreement from time to time without notice to you for any reason. We will provide or display notices of material changes on the Services and/or e–mail you or notify you upon login about these changes – the form of such notice is at our discretion. Once we post or make available such changes on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by such changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
By using the Services, you represent, warrant and covenant to Project Sunshine that you are 13 years of age or older. Certain features of the Services may be subject to heightened age and/or other eligibility requirements and restrictions. If you are a User between the ages of 13 and 18, please review this Agreement with your parent or guardian. Your parent or guardian should agree to this Agreement on your behalf and parental discretion is advised for all Users under the age of 18.
5. USER REGISTRATION
In order to access and use certain content, features and functionality of the Services, we may require that you (a) register for the applicable Services, whether on the Site, a Third Party Platform or otherwise, including, in some instances, creating and/or providing a username and password combination (“User Credentials“) and (b) provide to us and/or make available (e.g., via Third Party Platform permissions and consents, etc.) certain additional information, which may include, without limitation, your email address, legal name, country of residence, location, date of birth, usage data and other information, and, to the extent applicable, for any donations or E–Commerce Services, your physical address, telephone number(s), applicable payment information (e.g., payment card data, PayPal information, etc.) and other information (collectively, a “User Account“).You represent and warrant that all registration and account information you submit and/or make available is truthful and accurate and you shall maintain and promptly update the accuracy of such information. Further, if you elect to become a registered user of the Services, you are responsible for maintaining the confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions. It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify the Project Sunshine of any unauthorized use of your User Credentials or User Account, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your User Credentials and User Account, (b) update, maintain and control access to your User Credentials and User Account, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any user of the Services if we believe there is a question about the identity of the person trying to access any account or element of the Services. Project Sunshine shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 5.
7. OUR OWNERSHIP RIGHTS
A. As between you and Project Sunshine, Project Sunshine (and/or its licensors) owns all right, title and interest in and to the Services, including, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Except as expressly authorized by Project Sunshine and set forth in Additional Terms, you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third–party website or platform), or otherwise use, the Services, including, without limitation, any content therein, without the express, prior written consent of Project Sunshine or its owner if Project Sunshine is not the owner.
B. You further understand and agree that the framing or scraping of or in–line linking to the Services and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any content made available on or through the Services other than as expressly authorized by us is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) that may be used in connection with the Services.
8. RULES FOR USE OF THE SERVICES
The Services are to be used solely for your non–exclusive, non–assignable, non–transferable, non–commercial and limited personal use and for no other purposes. You are solely responsible for your conduct in connection with the Services. You must not:
- alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, and/or modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person in doing so;
- except as expressly authorized by Project Sunshine and set forth in Additional Terms, you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third–party website or platform), or otherwise use, the Services, including, without limitation, any content therein, without the express, prior written consent of Project Sunshine or its owner if Project Sunshine is not the owner;
- engage in or encourage conduct that (a) would violate any applicable law or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other third party, (b) affects adversely or reflects negatively on Project Sunshine, its affiliates, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, and/or (c) discourages any person or entity from using all or any portion, features or functions of the Services, or from advertising, linking or becoming a supplier to us in connection with the Services;
- modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other User;
- impersonate any person or entity or falsely state or otherwise represent your affiliation with a person or entity; and/or
- solicit passwords or personally identifiable information for commercial or unlawful purposes from other Users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other Users or other information.
You shall not submit, post, and/or otherwise make available through the Services any User Content (as such term is defined below) that:
- you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another´s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; and/or
- that is or may be construed as in violation of this Agreement, as determined in Project Sunshine´s sole discretion.
9. THIRD PARTY SOCIAL MEDIA SERVICES
10. USER CONTENT
A. The Services may provide you and other users with an opportunity to participate in message, comment, communication and other social networking features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages and other content and information via the Services ( “User Content“). When you submit User Content you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User Credentials, information about the User Content, your location, activity, preferences, photographs, media and/or similar information. You acknowledge and agree that all User Content made by means of or in connection with any portion of the Services are public and that (a) you have no expectation of privacy in any User Content and (b) no confidential, fiduciary, contractually implied or other relationship is created between you and Project Sunshine by reason of your transmitting User Content to any area of or in connection with the Services. Further, you understand that by using the Services, you may be exposed to other people´s User Content (e.g., from artists, fans, etc.) that could be offensive, incorrect, indecent or objectionable and, as such, Project Sunshine does not guarantee the accuracy, integrity, quality or content of any User Content. Under no circumstances shall Project Sunshine be liable in any way for User Content, including, without limitation, errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
B. We have the right, but not the obligation, to review any User Content and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Content, including, without limitation, any Unauthorized Content; provided, however, that Project Sunshine shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Content” means any User Content that is or may be construed as violating this Agreement, including, without limitation, Section 8 herein, or is deemed to be unacceptable to Project Sunshine, as determined in Project Sunshine´s sole discretion.
C. In connection with all User Content you submit, post, email, display, transmit or otherwise make available, you grant to the Project Sunshine the unrestricted, worldwide, non-exclusive, irrevocable, perpetual, fully paid–up and royalty–free right and license, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub–license and authorize others to exercise any of the rights granted hereunder to Project Sunshine, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to Project Sunshine shall commence immediately upon submission of your User Content and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered user or not.
D. Project Sunshine does not acquire any title or ownership rights in the User Content that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Content, you continue to retain any such rights that you may have in such User Content, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Content posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, Content, emailing, displaying, transmission and/or making available of User Content does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Content.
11. E–COMMERCE SERVICES
A. Project Sunshine may offer for a fee, directly or indirectly, the ability to donate to Project Sunshine and/or purchase certain products, merchandise, gifts and / or other e–commerce services (“Payment Services“) via the Services or through third party service providers. Additional terms may apply to your use and access of such Payment Services and all such terms are deemed Additional Terms and incorporated herein by reference. You may only use the Payment Services if you pay, in full, the prices and fees (including, without limitation, all applicable taxes) for any purchases you, or anyone using the User Credentials registered to you, make. Only certain debit and credit cards and other payment methods may be accepted, subject to certain applicable restrictions, including territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions and otherwise, which may prevent the processing of the applicable payment. If a transaction has been declined due to payment card or other issues, please ensure that all data inputted by you is correct and resubmit. Further, if payment is not received from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. You expressly acknowledge and agree that, if applicable, Project Sunshine may obtain a pre–approval from the applicable payment card company for an amount up to the amount of the purchase.
B. Project Sunshine or any of its third party service providers does not guarantee that product descriptions or other content will be accurate, complete, reliable, current, or error–free. Descriptions and images of, and references to, products on the Services do not imply our or any of our affiliates’ endorsement of such products. Project Sunshine and its third party operational service providers reserve the right, with or without prior notice, (i) to change product descriptions, images, and references, (ii) to limit the available quantity of any product, (iii) to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions, (iv) to bar any User from conducting any or all transaction(s) and (v) and/or to refuse to provide any User with any product. Prices and availability of any product and/or service are subject to change without notice.
C. You acknowledge and agree that certain Payment Services may utilize third party operational service providers (e.g., Network for Good, Charity Happenings, Pay Pal, etc.) and all donations or purchase made through these third party operational service providers are subject to their respective terms and conditions of use, and in the event of a conflict between such third party´s terms and conditions and this Agreement, the terms and conditions of the third party service provider shall govern and control. Project Sunshine is not responsible and has no liability whatsoever for the services you obtain through our third party operational service providers or other web sites or web pages. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. Project Sunshine does not make any representations or warranties as to the security of any information (e.g., credit card and other personal information, etc.) you might be requested to give any such third party, and you irrevocably waive any claim against us with respect to such third party operational service providers or web sites. We are not responsible for assisting you in correcting any problem you may experience with goods and services purchased through a third party operational service provider, even if the goods or services were shown on the Services. We cannot ensure that you will be satisfied with any products or services that you purchase from any third–party operational service provider as those are owned and operated by independent entities not affiliated with Project Sunshine. Customer service issues related to goods or services should be directed to the relevant third party operational service provider.
12. ACCESS TO THE SERVICES; DEVICE REQUIREMENTS; USAGE RULES
A. We reserve the right to withdraw or amend the Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Website, to registered Users and/or otherwise, as we determine in our sole discretion.
B. In order to access and use the Services, you may be required to use Device(s) and other technology meeting certain system, configuration and other requirements established by Project Sunshine, its content partners, licensors and other third parties, such as platform, storefront and network operators (e.g., Apple, etc.) (collectively, “Operators“), and you are responsible for ensuring that your Device(s) and other technology meet all such requirements. In addition, you are responsible for any data access, network and/or other service rates and charges you may incur in connection with your Device and use of the Services.
C. You further acknowledge and agree that certain Services (in whole or in part), and certain content contained therein, may be accompanied by technology and/or other restrictions (e.g., digital rights management technology, etc.) that protect digital information and content from unauthorized use and access and may limit and restrict your usage of such same in accordance with certain rules and restrictions. You agree to comply with such rules and restrictions at all times, and shall not violate or attempt to violate any security components thereof.
13. NO RESPONSIBILITY TO REVIEW OR MONITOR
Project Sunshine assumes no responsibility for monitoring the Services for inappropriate content or conduct. If at any time Project Sunshine chooses in its sole discretion to monitor the Services, Project Sunshine nonetheless assumes no responsibility for User Content, assumes no obligation to modify or remove any User Content, and no responsibility for the conduct of any User. However, we reserve the right to review any User Content and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Content, including, without limitation, any User Content that is or may be construed as violating this Agreement, or is deemed to be unacceptable to Project Sunshine, as determined in Project Sunshine´s sole discretion; provided, however, that Project Sunshine shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. Further, you acknowledge, consent and agree that Project Sunshine may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the law or legal process, including any financial reporting requirements (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of Project Sunshine, Users or any third parties including acting in urgent circumstances.
For assistance with technical issues and other questions, please refer to and/or contact us via our online contact and support page located at http://www.projectsunshine.org/aboutus/about-contact.php.
15. THIRD PARTY SERVICES
From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors, or other promotional partners (collectively, “Advertisers“) found on or through the Services or via a hyperlinked website or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
You agree to indemnify, defend and hold Project Sunshine, its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, Operators, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys´ fees), arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation this Agreement and/or (c) your User Content. Project Sunshine reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
18. DISCLAIMER OF WARRANTIES
THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THIS SITE, AND ALL CONTENT, PRODUCTS, SERVICES AND USER CONTENT ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, USER CONTENT ASSOCIATED WITH YOUR USE OF THE SERVICES. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT PROJECT SUNSHINE ASSUMES NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
19. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PROJECT SUNSHINE, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, ADVERTISERS, OPERATORS, SUPPLIERS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
20. GOVERNING LAW AND JURISDICTION
This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in New York and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, REGARDING YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
21. LIMITATION ON TIME TO FILE CLAIMS
ANY PROVISION WHICH MUST SURVIVE IN ORDER TO ALLOW US TO ENFORCE ITS MEANING SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT; HOWEVER, NO ACTION ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES, REGARDLESS OF FORM OR THE BASIS OF THE CLAIM, MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN (OR IF MULTIPLE CAUSES, FROM THE DATE THE FIRST SUCH CAUSE AROSE).
22. JURISDICTIONAL ISSUES; EXPORT CONTROL
The Services are controlled and operated by Project Sunshine from its offices in the U.S. Project Sunshine makes no representation that the Services are appropriate or available for use outside the U.S. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re–exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
This Agreement contains the entire understanding and agreement between you and Project Sunshine concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. The failure of Project Sunshine to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by Project Sunshine without restriction, notice or other obligation to you.This Agreement was last modified on the date indicated above and is effective immediately.
Copyright © 2015 Project Sunshine, Inc.