SUNNY WEBSITES AND APPLICATIONS
Effective Date: August 1, 2022
THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU MAY HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
We may change these Terms at any time, and such changes will be posted on this or a similar page and be denoted with “last updated.” If the changes are material in nature, we will use your contact information you provided to us through the Sites to reasonably notify you of the updates via email, or if we do not have your email address, we may notify you with a “pop up” alert when you next visit a Site.
If you enter into any other agreement with or are otherwise subject to any additional terms by us (together, the “Additional Terms”), then these Terms are in addition to the Additional Terms and in the event of any conflict between these Terms and the Additional Terms, the Additional Terms shall control except with regard to services subject to the Patient Services Agreement.
- Medical Advice
We do not provide healthcare services or medical advice. However, professional clinicians, such as physicians, clinicians, and nutritionists who provide services under contract or employment with professional corporations, use the Services to communicate with you and may deliver certain healthcare services within their scope of practice using the Sites.
The Site does NOT provide medical advice, diagnosis or treatment. Never disregard professional medical advice or delay in seeking it because of something you have read on the Sites. Medical advice, diagnosis, treatment or recommendations regarding medication should only be made by licensed physicians or other licensed professionals permitted to render medical advice. Always seek the advice from your physician or other qualified health provider with any questions you may have regarding a medical condition.
If you think you may have a medical emergency, call your doctor or 911 immediately.
- Content, Ownership, and Rights of Others
a. Content. The Services contain, make use of, or display a variety of: (i) materials and other items relating to Sunny or other professional entities to which Sunny provides services, products and services of each, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Services, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Sunny, Verde or other professional entities to which Sunny provides services (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All rights, title, and interest in and to the Sites, including the Content, and all intellectual property rights, including all copyright, trademark, patent, and trade secret rights therein, shall remain with Sunny and our licensors and vendors, and no ownership interest is transferred to you or any other entity by virtue of making the Content available on the Site.
- Rights of Others and Reservation of Rights. In using the Services, you must respect the intellectual property and other rights of Sunny, Verde, and others, including other professional entities to which Sunny provides services. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. All rights not expressly granted to you are reserved by Sunny and its licensors and other third parties.
- Use Restrictions
a. Restrictions on Eligibility. You agree to comply with all applicable laws and regulations while using the Services or the Content. You represent and warrant that you are at least thirteen (13) years of age, and that if you are under thirteen (13) years of age you may not use our Services.
b. Restrictions on the Use of the Services and Content. You agree that you will not:
i. Interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on use of or access to the Services or the Content, or otherwise misrepresent your identity or provide us with any false information in any information-collection portion of our Services, such as registration, scheduling, or application pages;
ii. Introduce viruses, code, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware, any Content, or any of the Services;
iii. Attempt to disassemble or reverse engineer any of the software used to provide the Services;
iv. Engage in any activities through or in connection with the Services that seek to attempt to or do harm to any individuals or entities or that are unlawful, offensive, obscene, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Sunny;
v. Engage in any activity that interferes with a user’s access to the Services or the proper operation of the Services, or otherwise causes harm to the Services, Sunny, Verde, or other users of the Services;
vi. Harvest or otherwise collect or store any information (including personally identifiable information about other users of the Services, including e-mail addresses, without the express consent of such users);
vii. Monitor, gather, copy, frame, sell, rent, distribute, create derivative works from, broadcast, retransmit, circulate, or transfer the Content or otherwise use or exploit the Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms;
viii. Modify or disrupt materials from the Services, including Trademark, copyright, and other intellectual property notices contained in such Content;
ix. Use Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; and
x. Otherwise violate these Terms or any Additional Terms.
- Accounts and Credentials
The Services may allow or require you to register by providing a username or email address and password (“Credentials”). These are your credentials for accessing portions of the Sites. You are responsible for protecting your Credentials. You agree to immediately inform us if your Credentials you use with the Sites are compromised, meaning someone may have access to or have used your Credentials without your permission.
- Information Provided to Us
Only as permitted by our Notice of Privacy Practices, You acknowledge and agree that we may use a number of different information and data sources, such as the Content, information provided by you, information provided by your health insurance carrier, or information we obtain from other data sources available to us to display information that we believe may be relevant to you, your search query, or the Services.
- Links and Third Party Platforms
The Services may contain third party plug-ins and/or applications, and/or links to third-party websites that are not owned, controlled or operated by us, (collectively, “Third-Party Platforms”), including websites operated by advertisers, licensors, licensees, and certain other third parties, some of whom may have business relationships with us. You acknowledge that by clicking on these, you may leave our Sites or stop using our Services. We may have no control over the content, operations, policies, terms, or other elements of Third-Party Platforms, and we do not assume any obligation to review any Third-Party Platforms and we are not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Third-Party Platforms. We do not necessarily endorse, approve, or sponsor any Third-Party Platforms, or any third-party content, advertising, information, materials, products, services, or other items. We will under no circumstances be liable for any direct, indirect, incidental or special loss, or other damage, whether arising from negligence, breach of contract, defamation, or infringement of copyright or of other intellectual property rights caused by the exhibition, distribution, or exploitation of any information or content contained within these Third-Party Platforms. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Platform.
- Wireless and Location-Based Features
a. Wireless Features. The Services may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access the Services’ features and upload content to the Service, receive messages from the Services, and download applications to your wireless device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
b. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Services for Wireless Features, then you agree to notify Sunny of any changes to your wireless contact information (including phone number) and update your accounts on the Serviced to reflect the changes.
- Disclaimer; No Warranty
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.
To the fullest extent permissible by applicable law, Sunny, Verde, and their respective subsidiaries, affiliates, directors, members, managers, shareholders, employees, contractors, successors, and assigns (collectively, the “Sunny/Verde Parties”) disclaim any and all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement or misappropriation of intellectual property rights of third parties, title, custom, trade, quiet enjoyment, system integration, and freedom from computer virus, as to:
- the Services (including the Content and information you submit to us);
- the functions, features, or any other elements on, or made accessible through, the Services;
- any products, services, or instructions offered or referenced at or linked through the Services;
- security associated with the transmission of your information submitted to us or transmitted via the Services;
- whether the Services or the servers that make the Services available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your device);
- whether the information (including any instructions) on the Services is accurate, complete, correct, adequate, useful, timely, or reliable;
- whether any defects to or errors on the Services will be repaired or corrected;
- whether your access to the Services will be uninterrupted;
- whether the Services will be available at any particular time or location; and
- whether your use of the Services is lawful in any particular jurisdiction.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable to you.
- Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY SUNNY/VERDE PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- the Services (including the Content and information you submit to us);
- your use of or inability to use the Services, or the performance of the Services;
- any action taken in connection with an investigation by Sunny/Verde Parties or law enforcement authorities regarding your access to or use of the Services;
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Services’ technical operations; or
- any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including 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 losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were reasonably foreseeable and even if the Sunny/Verde Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort, including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Services.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SUNNY/VERDE PARTIES’ TOTAL LIABILITY TO YOU OR ANYONE ELSE FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SUNNY IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
- Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT ORDER OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY US.
You agree to, and you hereby, defend, indemnify, and hold Sunny/Verde Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Sunny/Verde Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) information you submit to us; (ii) your breach or alleged breach of these Terms or any Additional Terms; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services; (iv) information or material transmitted through your device, even if not submitted by you, that violates someone else’s privacy; (v) any misrepresentation made by you; and (vi) the Sunny/Verde Parties’ use of the information that you submit to us (all of the foregoing, “Claims and Losses”). You agree to cooperate fully as required by the Sunny/Verde Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, the Sunny/Verde Parties retain the exclusive right to assume the exclusive defense and control of any Claims and Losses, and to settle, compromise, and pay any and all Claims and Losses.
- Dispute Resolution
If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 13 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and the Sunny/Verde Parties agree that the intent of this section is to satisfy the “writing” requirement of the Federal Arbitration Act.
a. First – Try To Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Services or these Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Sunny’s actual or alleged intellectual property rights (an “Excluded Dispute,” which includes those actions set forth in Subsection (d)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Subsection (a). Your notice to us must be sent to: firstname.lastname@example.org. For a period of sixty (60) days from the date of receipt of notice from the other party, Sunny and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Sunny to resolve the Dispute or Excluded Dispute on terms with respect to which you and Sunny, in each of our sole discretion, are not comfortable.
b. Binding Arbitration. If we cannot resolve a Dispute as set forth in Subsection (a) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND SUNNY (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICES OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICES. For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between the Sunny and you regarding these Terms, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Sunny and you agree, however, that the applicable state, federal or provincial law, as contemplated in Subsection (h) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Sunny regarding these Terms, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.
Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Sunny consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in New Castle County, Delaware. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Sunny to pay a greater portion or all of such fees and costs in order for this section to be enforceable, then Sunny will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
c. Limited Time To File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SUBSECTION (a) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
d. Injunctive Relief. The foregoing provisions of this section will not apply to any legal action taken by Sunny to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services and/or Sunny’s intellectual property rights (including such Sunny may claim that may be in dispute), operations, and/or products or services.
e. No Class Action Matters. YOU AND SUNNY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Subsection (b) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Subsection (f). Notwithstanding any other provision of this section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
f. Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in New Castle County, Delaware. Accordingly, you and Sunny consent to the exclusive personal jurisdiction and venue of such courts for such matters.
g. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claims of Disputes (but not Excluded Disputes) in a small claims court of competent jurisdiction.
h. Governing Law. These Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws identified in the “Jurisdiction and Governing Law” section above, without regard to its conflicts of law provisions.
- Governing Law and Geographic Limitations
These Terms shall be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Delaware, without regard to its conflicts of laws principles. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in Wilmington/New Castle County, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
The Sites and Services are controlled and operated by Sunny from its offices in Wilmington, Delaware. . We reserve the right to limit the availability of the Services and/or the provision of any content, program, product, service, or other feature described or available on the Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.
- Severability; Interpretation
If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable by a court or arbitrator of competent jurisdiction, then to the maximum extent permitted by applicable law that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
- Entire Agreement; Amendment
This is the entire agreement between you and us relating to the subject matter herein, and shall not be modified except as provided herein.
- Customer Service, Communications, and Notices
If you have a question regarding using the Services, you may contact customer support by sending an e-mail to email@example.com.
When you communicate with us electronically, such as via e-mail, messages through the Services, and text message, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
You agree that: (1) we may give you notices of new, revised, or changed terms and other important matters by prominently posting notice on the home page of the Services, or in another reasonable manner; and (2) we may contact you by mail or e-mail sent to the address provided by you. You agree to promptly notify us if you change your e-mail or mailing address by updating your account settings.
All legal notices to us must be sent to firstname.lastname@example.org
Sunny may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Sunny.
- No Waiver
Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Sunny in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
- Agreement to be Bound by Electronic Signature
Your affirmative act of creating Credentials and an account or of accessing and using the Services constitutes your electronic signature to these Terms and your affirmative informed consent to enter into agreements with us electronically.