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Terms and Conditions

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INTRODUCTION AND SCOPE

 

Welcome to New Sunshine, LLC’s Terms of Use Agreement. As used herein, "you," and "your," means the person, and company or organization that registers on this website, and "we," "our," "us," and New Sunshine, LLC refers to New Sunshine, LLC and its subsidiaries and affiliates, including, but not limited to: Australian Gold, LLC; Cal Tan, LLC; Designer Skin, LLC; Helios, LLC; and Swedish Beauty, LLC.
 
The following Terms of Use apply when you view or use our web site at www.australiangold.com. 
 
Please review the following terms carefully. YOUR USE OF THE NEW SUNSHINE, LLC WEBSITE AND ANY SERVICES PROVIDED THEREIN IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS.

 

    1. ACCEPTENCE OF TERMS

 

New Sunshine, LLC makes available for your use on this web site (the "Site") information (the "Information") and various services (the "Services"), subject to the terms and conditions set forth in this document (the "Terms of Use").  By accessing this Site, you agree to the Terms of Use. These Terms of Use apply to the use of this site, but not the sale or purchasing of any products. New Sunshine, LLC reserves the right to change these Terms of Use from time to time at its sole discretion and for any reason.  Your use of this Site will be subject to the most current version of the Terms of Use posted on the Site at the time of such use.  In addition, when using particular Information or Services on this Site, you shall be subject to any posted guidelines or rules or agreements applicable to such Information or Services that may contain terms and conditions in addition to those in the Terms of Use.  All such guidelines or rules are hereby incorporated by reference into the Terms of Use.  If you breach any of the Terms of Use, your authorization to use this Site automatically terminates and you must immediately destroy any Information downloaded or printed from this Site. New Sunshine and its subsidiaries reserve the right to refuse service, terminate accounts, and/or cancel orders in its discretion, including, without limitation, if New Sunshine believes that customer conduct violates applicable law or is harmful to the interests of New Sunshine and its subsidiaries.

 

     2. SERVICES PROVIDED

 

New Sunshine, LLC directly, or indirectly through an unaffiliated Internet service provider, shall provide you with electronic access, through your computer or other electronic device (collectively "Computer"), to the Information and Services provided on the Site and the ability to communicate electronically with the Site ("E-mail").

 

     3. USER RESTRICTIONS

 

The Site is a general purpose website and is not targeted towards children under 13 years of age (or under 16 years of age for California residents). By registering an account on the Site, you represent and warrant that you are (i) 18 years of age or older and (ii) have not previously been suspended or removed from the use of the Site by us. If we become aware that you are under 18, we will terminate your registration. 
 
Your permission to use the Site is conditioned upon the following use, posting, and conduct restrictions. You agree that you will not under any circumstances:

  •  Access the Site for any reason other than your personal, non-commercial use solely as permitted by the normal functionality of the Site;
  •  Collect or harvest any personal data of any user of the Site;
  •  Use the Site for any unlawful purpose or for the promotion of illegal activities;
  • Attempt to, or harass, abuse, or harm another person or group;
  •  Provide false or inaccurate information when registering an account;
  •  Interfere or attempt to interfere with the proper functioning of the Site;
  • Make any automated use of the Site, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure; 
  •  Bypass any robot exclusion headers or other measures we take to restrict access to the Site, or use any software, technology, or device to scrape, spider, or crawl the Services or harvest or manipulate data;
  • Circumvent, disable, or otherwise interfere with any security-related features of the Site or features that prevent or restrict use or copying of content, or enforce limitations on use of the Site or the content accessible via the Site; or 
  • Transmit, upload, publish, or link to the Site any virus, worm, defect, Trojan horse, software bomb, or other malicious feature designed to damage, degrade, or disrupt in any manner the performance of the Site or another user’s browser or computer. 

 

     4. USER CODES  
 
As part of your registration process you may be asked to select a user name ("Name") and/or password ("Password"), or a user name and/or password may be created for you (the Name and Password are hereafter referred to as "User Codes").  The User Codes are for your personal use only.  You are responsible for maintaining the confidentiality of the User Codes, and agree not to provide them to any third party.  You are responsible for all statements made and acts or omissions that occur while your User Codes are being used.  You are responsible for any breach of security caused by your failure to maintain the confidentiality of your User Codes.  You agree to notify New Sunshine, LLC immediately in the event of loss or theft of your User Codes, or if you believe the confidentiality of your User Codes has been compromised in any way, or in the event of your learning about a possible or actual unauthorized use of the Site.  New Sunshine, LLC reserves the right to revoke your User Codes at any time without prior notice.
 
     5. ELECTRONIC RECORDING 
 
You acknowledge and agree that all information and data that you input during your use of the Site, including without limitation, all selections and uses of calculators and other tools included therein, and all information you have created, input or developed in connection with your use of the Site (the "User Information"), shall be deemed to become, and shall remain, the property of New Sunshine, LLC.  None of the User Information shall be subject to any obligation of confidentiality on the part of New Sunshine, LLC or its officers, directors, owners, agents, employees, affiliates, or licensors ("Related Parties"), and neither New Sunshine, LLC nor its Related Parties shall be liable for any use or disclosure of all or part of any User Information.  Without limiting the foregoing, New Sunshine, LLC shall exclusively own all now known or hereafter existing rights to the User Information of every kind and nature throughout the world, and shall be entitled to unrestricted use of the User Information for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the User Information.
 
     6. LINKS TO OTHER WEBSITES AND/OR MATERIALS
 
As part of the Site, we may provide you with convenient links to third party website(s) “Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software, or Content”). These links are provided as a courtesy. We have no control over Third Party Sites or Third Party Applications, Software, or Content, or the promotions, materials, information, goods, or service available on these Third Party Sites or Third Party Applications, Software, or Content. Such Third Party Sites and Third Party Applications, Software, or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness, and we are not responsible for any Third Party Sites accessed through our Site or any Third Party Applications, Software, or Content posted on, available through or installed from our Site, including the content, accuracy, offensiveness, opinions, reliability, safety, privacy practices, or other policies of or contained in the Third Party Sites or the Third Party Applications, Software, or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software, or Content does not imply our approval or endorsement. If you decide to leave our Site and access the Third Party Sites or to use or install any Third Party Applications, Software, or Content, you do so at your own risk and you should be aware that our terms and policies, including these Terms of Use, no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site to which you navigate from our Site or relating to any applications you use or install from the Third Party Site. 
 
     7. SOCIAL MEDIA POLICY
 
Users must be eighteen (18) years of age or older to participate. Except where prohibited by law, voluntarily posting photographs, videos, comments or other material tagged with one of our promoted hashtags ("Posted Content") constitutes your consent and grant to New Sunshine, LLC ("New Sunshine"), the parent company of Australian Gold, LLC, Designer Skin, LLC, Swedish Beauty, LLC and California Tan, LLC of the irrevocable, non-exclusive, perpetual, worldwide, royalty-free, unrestricted, and unlimited right and permission, but not the obligation, to (1) utilize, reproduce, exploit, alter, edit, modify, distribute, publish, exhibit, digitize, broadcast, display, publicly perform, and prepare derivative works of the Posted Content in any form or media now or hereafter known for any and all purposes deemed by New Sunshine in its sole discretion to be reasonable and prudent uses for the purpose of furthering its valid business objectives, including but not limited to reposting the Posted Content online (e.g., on our brand websites and social media pages) and (2) use your name, online handle, and profile/avatar picture in connection with, or to reference the fact of, your Posted Content. You understand that Posted Content may be edited in the sole discretion of New Sunshine. You represent and warrant that you own all right title and interest in the Posted Content and that the Posted Content will not contain any third party trademarked or copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of such material or you are otherwise legally entitled to post the material and to grant New Sunshine all relevant licenses and permissions to use the material as contemplated herein. You agree to: not take any legal action against New Sunshine, and to release, discharge, defend, indemnify and hold harmless New Sunshine, and its directors, officers, employees, agents and affiliates, or any other person or entity acting on its behalf, from all claims in connection with the use of the Posted Content as contemplated herein. New Sunshine's page is not sponsored or endorsed by this site or any other third party.
 
     8. INTELLECTUAL PROPERTY RIGHTS  
 
You acknowledge and agree that we and our licensors retain ownership of all intellectual property rights of any kind related to the Site, including applicable copyrights, trademarks, and other proprietary rights. The trademarks, trade names, logos and service marks ("Marks") displayed on the Site and the features and functionality of the Site are the property of New Sunshine, LLC or its affiliates or licensors and are protected by applicable copyright, patent, trademark or other intellectual property law.  All information and content made available on or through the site (“Content”) is protected by copyrights. Other product and company names that are mentioned on the Site may carry registered or other trademarked symbols that are the sole property of their respective owners. You may view, print, and download portions of the content and/or information of the Site solely in connection with your use of the Site, and solely for your personal use or records. We reserve the right to revoke this authorization at any time. Reproduction, copying, or redistribution of materials on the Site for commercial purposes is strictly prohibited without our express written permission. In printing or downloading content and/or information from the Site, you agree not to change or delete any proprietary notices, trademarks, and the like from any printed or downloaded content and/or information. Except as otherwise provided in these Terms of Use or as consented to in writing by us, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other website, transfer, or sell any content and/or information appearing on the Site. Furthermore, you may not attempt to view, disclose, copy, reverse engineer, disassemble, decompile, or otherwise examine the Site source code. If you make use of the Site other than as authorized herein, you may be in violation of copyright laws and other laws of the United States and other countries, as well as applicable state laws, and may be subject to penalties and/or legal or equitable remedies available to us or our licensors.   Without limiting the foregoing, you also agree not to use the Marks, Services, Content, or Information for any unlawful purpose, and you shall comply with any request of New Sunshine, LLC or its affiliates or licensors to protect their respective rights in the Marks, Services and Information. We will file appropriate legal actions to enjoin the unauthorized use of Marks, Services, Content, or Information. Under the law, we would be entitled to collect your profits, our actual damages, and, perhaps, our attorney fees. We thank you for your cooperation.
 
     9. PROHIBITED COMMUNICATIONS
 
New Sunshine, LLC may, but is not obligated to, monitor or review (i) any areas on the Site where users transmit or post communications or communicate solely with each other, and (ii) the content of any such communications. New Sunshine, LLC, however, will have no liability related to the content of any such communications, whether or not arising under the laws of copyright, libel, privacy, obscenity or otherwise.  You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, pornographic or other material that would violate any law. New Sunshine, LLC reserves the right (but not the obligation) to remove or edit such content.  You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead.
 
If you do post content or submit material, and unless we indicate otherwise, you grant New Sunshine, LLC a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant New Sunshine, LLC and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify New Sunshine, LLC for all claims resulting from content you supply. New Sunshine, LLC takes no responsibility and assumes no liability for any content posted by you or any third party.
 
     10. DISCLAIMERS AND LIMITATION OF LIABILITY 
 
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL INFORMATION AND SERVICES ON THIS SITE, INCLUDING THE SITE, ITS CONTENTS, AND ANY LINKS PROVIDED ON THE SITE, ARE PROVIDED ON AN "AS IS" BASIS, AND WE DISCLAIM ALL WARRANTIES OF ANY KIND AND NEW SUNSHINE, LLC AND ITS RELATED PARTIES HEREBY EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT OR TITLE.  YOU ACKNOWLEDGE AND ASSUME THE RISKS INHERENT FROM THE USE OF THE MATERIALS ON THIS SITE, AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS THAT ARISE OUT OF ITS USE. WITHOUT LIMITING THE FOREGOING, NEW SUNSHINE, LLC AND ITS RELATED PARTIES MAKE NO WARRANTY THAT (I) THE INFORMATION AND SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES AND INFORMATION WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE, (III) ANY DEFECTS WILL BE CORRECTED, (IV) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR INFORMATION WILL BE ACCURATE OR RELIABLE, (V) THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND (VI) THE QUALITY OF ANY SERVICES OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE WILL MEET YOUR EXPECTATIONS. INFORMATION ON THIS SITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.  NEW SUNSHINE, LLC AND ITS RELATED PARTIES MAY MAKE CHANGES TO THE INFORMATION AND SERVICES AT THIS SITE, AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE.  THE INFORMATION AND SERVICES AT THIS SITE MAY BE OUT OF DATE, AND NEW SUNSHINE, LLC AND ITS RELATED PARTIES MAKE NO COMMITMENT TO UPDATE SUCH INFORMATION OR SERVICES. 
 
SOME STATES DO NOT PERMIT LIMITATIONS OR EXCLUSIONS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
 
LINKS TO OTHER THIRD-PARTY WEBSITES NOT OWNED OR CONTROLLED BY NEW SUNSHINE MAY BE AVAILABLE FOR ACCESS THROUGH THIS WEBSITE. SUCH EXTERNAL THIRD-PARTY INTERNET ADDRESSES CONTAIN INFORMATION CREATED, PUBLISHED, MAINTAINED, OR OTHEWISE POSTED BY ORGANIZATIONS INDEPENDENT OF NEW SUNSHINE. NEW SUNSHINE DOES NOT ENDORSE, APPROVE, CERTIFY, WARRANT, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY INFORMATION, CONTENT, PRODUCT, OR SERVICE REFERENCED OR PROVIDED AT SUCH ADDRESSES. NEW SUNSHINE ENCOURAGES YOU TO BE AWARE WHEN YOU LEAVE THE WEBSITE AND TO READ THE TERMS AND CONDITIONS AND PRIVACY POLICY OF EACH OTHER WEBSITE THAT YOU VISIT.
 
     11. LIMITATION OF LIABILITY  
 
NEW SUNSHINE, LLC AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY HARM CAUSED BY THE TRANSMISSION, THROUGH THE SERVICES OR INFORMATION, OF A COMPUTER VIRUS, OR OTHER COMPUTER CODE OR PROGRAMMING DEVICE THAT MIGHT BE USED TO ACCESS, MODIFY, DELETE, DAMAGE, CORRUPT, DEACTIVATE, DISABLE, DISRUPT, OR OTHERWISE IMPEDE IN ANY MANNER THE OPERATION OF THE SITE OR ANY OF YOUR SOFTWARE, HARDWARE, DATA OR PROPERTY.  EXCEPT AS OTHERWISE PROVIDED BY LAW, NEW SUNSHINE, LLC AND ITS RELATED PARTIES SHALL HAVE NO LIABILITY FOR LOSSES CAUSED BY THE NEGLIGENCE, ACTIONS OR FAILURE TO ACT OF ANY THIRD PARTY PROVIDER, AND TO THE EXTENT PERMITTED BY LAW, NEITHER NEW SUNSHINE, LLC, ITS RELATED PARTIES, NOR ANY OF NEW SUNSHINE, LLC’S PROVIDERS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER (REGARDLESS OF WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE), AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OF ANY THIRD PARTY SITE REFERENCED OR LINKED TO FROM THIS SITE.  IN NO EVENT SHALL NEW SUNSHINE, LLC’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU FOR ACCESSING THIS SITE. ANY INFORMATION OR DOCUMENTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OF LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR DOCUMENTS.  IF YOU ARE DISSATISFIED WITH THIS SITE, OR ANY PORTION THEREOF, YOUR EXCLUSIVE REMEDY SHALL BE TO CEASE USING THE SITE.
 
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OF DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
 
THE ABOVE LIMITATIONS OF LIABILITY DO NOT APPLY TO RESIDENTS OF, OR USE OF THE WEBSITE WITHIN, THE STATE OF NEW JERSEY,
 
     12. YOUR REPRESENTATIONS AND WARRANTIES  
 
You hereby represent and warrant that you are of the age of majority and that all information provided by you during the registration process is true, correct and complete.
 
     13. MODIFICATION OF TERMS OF USE
 
We may amend these Terms of Use at any time by updating this posting. Any and all relevant portions of these Terms of Use will apply automatically to all such modifications, improvements, deletions, and/or amendments as they appear on the Site. It is your sole responsibility to check the Site from time to time to view any such changes in this Agreement. Your continued use of the Site or the Services signifies your agreement to our revisions to these Terms of Use. 
 
     14. GENERAL TERMS
 
If any part of this Terms of Use Agreement is held or found to be invalid or unenforceable, that portion of the Agreement will be construed as to be consistent with applicable law while the remaining portions of the Agreement will remain in full force and effect. Any failure on our part to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement survive any transfer or termination of this Agreement. 
 
You agree that any cause of action related to or arising out of your relationship with New Sunshine, LLC must commence within ONE (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. 
 
     15. CONFIDENTIALITY  
 
You hereby acknowledge and agree that any and all User Information may be accessed through the Internet, and hereby acknowledge and agree that there can be no assurance that the User Information, or any Information provided to you through the Services, or any communication through E-mail will remain secure.  In addition, New Sunshine, LLC may disclose, license or otherwise commercially exploit User Information to its Related Parties, as well as any governmental entity, or other third party (a) for any purpose related to the conduct of New Sunshine, LLC 's business or to offering, providing or maintaining the Information or Services, (b) to comply with applicable rules, orders, subpoenas or other legal process, or in order to give information to any government agency or official requesting such information, or (c) for any other business purpose.
 
     16. GOVERNING LAW AND JURISDICTION 
 
By accessing this Site, you and New Sunshine, LLC agree that all matters relating to your access to, or use of, this Site shall be governed by the federal laws of the United States of American and the state laws of the State of Indiana, without regard to conflicts of laws principles thereof.
 
     17. ARBITRATION.  
 
If any dispute or disagreement between you and New Sunshine, LLC shall arise in connection with any interpretation of this Agreement, or its performance or nonperformance, the parties agree to submit to arbitration, in accordance with these provisions.  The parties further agree that the arbitration process agreed upon herein shall be the exclusive means for resolving all disputes made subject to arbitration herein.  Except, either party seeking equitable or injunctive relief may apply to a federal court in the Southern District of Indiana or in state court in Marion County, Indiana.  Subject to this Section 12, you agree that all claims and disputes between the parties shall be resolved by binding arbitration by the American Arbitration Association (AAA) under its Commercial Arbitration Rules.  The arbitration award shall be final and binding regardless of whether one of the parties fails or refuses to participate in the arbitration.  The arbitrator shall not have the power to amend this Agreement in any respect.  The arbitral award may be entered as judgment and enforceable by any court of competent jurisdiction.  You and New Sunshine, LLC further agree that any arbitration held pursuant to this Agreement will be held in the City of Indianapolis, Marion County, Indiana, unless otherwise agreed to by both parties to this Agreement.  All arbitration proceedings hereunder shall be confidential.  Neither party shall disclose any information about the evidence adduced by the other in the arbitration proceeding or about documents produced by the other in connection with the proceeding, except in the course of a judicial, regulatory, or arbitration proceeding, or except as may be requested by governmental authority.  Before making any disclosure as permitted by the preceding sentence, the party shall give the other party reasonable notice of the intended disclosure and an opportunity to protect its interests.  Expert witnesses and stenographic reports shall sign appropriate nondisclosure agreements.  A copy of the Code, Rules, and Fee Schedule of the AAA may be obtained by contacting the AAA via mail at: 225 North Michigan Avenue, Suite 2527, Chicago, Illinois, 60601-7601.  The parties agree that all arbitrators selected shall be attorneys.  This provision shall supersede any contrary rule or provision of the forum.  This provision constitutes an express waiver of the right to court, jury, or administrative review.  New Sunshine, LLC is engaged in commerce using the United States Mail and Telephone service.  Therefore, this Agreement is subject to the Federal Arbitration Act, 9 U.S.C. §1-14, as amended from time to time.
 
     18. TERMINATION  
 
New Sunshine, LLC and its subsidiaries reserve the right to discontinue or change the Information or the Services, or their availability to you, at any time or for any reason, with or without notice, including, without limitation, if New Sunshine, LLC believes that customer conduct violates applicable law or is harmful to the interests of New Sunshine, LLC and its subsidiaries.  If you breach any of the Terms of Use, your authorization to use this Site automatically terminates. Upon termination, there shall be no refund of any monies paid by you for access to the Site, and you shall immediately destroy any Information downloaded or printed from the Site. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, and 17 shall survive termination of this Agreement.
 

     19. ASSIGNMENT  
 
The Terms of Use shall be binding upon and inure to the benefit of the parties and their respective executors, heirs, successors and permitted assigns.  You may not assign the Terms of Use or your rights or obligations hereunder without the prior written permission of New Sunshine, LLC, and any unauthorized assignment or delegation by you is void. New Sunshine, LLC may assign the Terms of Use or any of its rights or obligations hereunder to any person or entity at any time with or without your consent. 
 
     20. ENTIRE AGREEMENT; SEVERABILITY 
 
The Terms of Use and guidelines and rules referred to herein represent the complete and exclusive statement of the agreement and understanding between you and New Sunshine, LLC regarding your rights to access and use the Services and Information on the Site, and supersede all prior and contemporaneous agreements and representations regarding such subject matter.  To the extent there is any direct inconsistency between these Terms of Use for the Site and another agreement related to the subject matter hereof entered between you and New Sunshine, LLC, then the terms in such agreement will control.  However, for the avoidance of doubt, in the event that a subject is addressed in the Terms of Use for the Site and not in such agreement, then the terms in the Terms of Use of the Site will control.  Except as herein provided, no waiver, modification or amendment of any provision of the Terms of Use shall be effective against New Sunshine, LLC unless the same is in writing and signed by an authorized official of New Sunshine, LLC. Should any term or provision in the Terms of Use be deemed or held to be invalid or unenforceable, that term or provision will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remaining terms and provisions shall continue in full force and effect.
 
     21. WAIVER 
 
New Sunshine, LLC's failure to insist at any time upon strict compliance with any provision of the Terms of Use, or any delay or failure on New Sunshine, LLC's part to exercise any power or right given to New Sunshine, LLC in the Terms of Use, or a continued course of such conduct on New Sunshine, LLC's part shall at no time operate as a waiver of such power or right, nor shall any single or partial exercise preclude any other future exercise.  All rights and remedies given to New Sunshine, LLC in the Terms of Use are cumulative and not exclusive of any other rights or remedies which New Sunshine, LLC otherwise has at law or equity.
 
     22. INDEMNIFICATION  
 
You shall defend, indemnify and hold New Sunshine, LLC and its Related Parties and any third party provider harmless from and against any and all claims, actions, proceedings, suits, losses, liabilities, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys' fees and costs) arising out of, in connection with, or resulting from (a) any content you submit, post to or transmit through the Site, (b) any breach of or failure to carry out, perform, satisfy and discharge any covenant, warranty, or representation contained in the Terms of Use, (c) your use of the Site, your connection to the Site or your violation of any rights of another person or entity.  New Sunshine, LLC may, at its sole option, engage and manage, at your expense, the defense of any such action arising as described herein unless you specify that New Sunshine, LLC shall conduct the expense.