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Terms of Use Agreement

Terms of Use Agreement

Last updated: June 15th, 2023

 

Welcome to the website, app, and all other sites which are provided by SunshineMD, LLC (“SunshineMD”, “we”, “us” or “our”). The following terms and conditions of use (the “Agreement”) apply to all visitors to, and users of, this website, our related sites, microsites, pages, and mobile sites, as well as our services platform, content, products, and services (collectively, the “Website”). Please review this Agreement, because it constitutes a legally binding agreement between you and SunshineMD governing your access or use of SunshineMD’s Website. This Agreement, together with SunshineMD’s Privacy Notice and any other documents that are incorporated by reference, govern your access to and use of the Website, including any content, functionality, goods or services offered on or through, and your interaction with other users of, the Website.

BY USING THE WEBSITE, YOU AGREE TO BE BOUND AND ABIDE BY THIS AGREEMENT. IF YOU OBJECT TO ANY OF THE TERMS IN THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE. BY USING THE WEBSITE, YOU EXPRESSLY ACKNOWLEDGE THAT:

  • YOU HAVE READ AND YOU UNDERSTAND THIS AGREEMENT, YOU HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF ENTERING INTO THIS AGREEMENT, AND YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT.
  • YOU ARE AT LEAST 18 YEARS OLD, A RESIDENT OF THE UNITED STATES OF AMERICA, AND OTHERWISE ELIGIBLE TO USE SUNSHINEMD PLATFORM, AS DESCRIBED IN SECTION 2 BELOW.
  • IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOUR EMPLOYER, OR SOME OTHER PARTY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE ALL NECESSARY RIGHT, POWER, AUTHORITY AND AUTHORIZATION TO BIND SUCH PARTY TO THIS AGREEMENT, TO UTILIZE THE WEBSITE, AND TO ENSURE ANY NECESSARY PAYMENT TO SUNSHINEMD FOR ITS SERVICES.
  • YOU WILL ABIDE BY OUR SUNSHINEMD COMMUNITY CODE OF CONDUCT IN SECTION 6.

This Agreement contains a mandatory dispute resolution provision and arbitration agreement that affects your rights. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. Please review those sections of these terms carefully.

  1. MODIFICATIONS TO THIS AGREEMENT

You are encouraged to review this Agreement periodically, if not each time that you use the Website, to determine if any modifications have been made. The date of the last modification to the Agreement will be reflected in the “Last Updated” notice at the top of this Agreement. If SunshineMD modifies this Agreement, such modifications shall be binding on you upon your acceptance of the modified Agreement, and your continued use of the Website after any such modifications shall constitute your acceptance to this Agreement as modified. SunshineMD reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting.

  1. USER REGISTRATION; REQUIREMENTS AND REPRESENTATIONS

You may be required to register with the Website to access or use certain features of the Website. You agree to keep your password confidential and will be responsible for all use of your account and password. If you do not meet the requirements in this Section 2, then you are not authorized to use the Website. Nevertheless, if you use the Website, without satisfying these requirements and representations, you acknowledge and agree that (a) your continued use is a material violation of this Agreement, and (b) that you will remain legally bound by the terms and conditions of this Agreement applicable to authorized users.

By using the Website, you represent and warrant that:

  • all registration information you submit will be true, accurate, current, and complete;
  • you will maintain the accuracy of such information and promptly update such registration information as necessary;
  • you have the legal capacity and you agree to comply with this Agreement;
  • you are at least 18 years of age;
  • you will not access the Website through automated or non-human means, whether through a bot, script or otherwise;
  • you will not use the Website for any illegal or unauthorized purpose;
  • you are authorized to use the Website and the services, information, materials, and services offered on the Website and to access the information and data that you input or import into the Website, including any information or data input or imported into the Website by any person you have authorized to use the Website; and
  • your use of the Website will not violate any applicable law, rule, or regulation (“Applicable Law”).

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Website (or any portion thereof).

  1. LICENSE

Subject to your continued compliance with this Agreement, SunshineMD grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license, without the right to sublicense, to: (a) access and use the Website on your personal device; and (b) access and use any content, information and related materials that may be made available through the use of the Website, in each case solely for your personal use. SunshineMD and its licensors reserve all rights not expressly granted in this Agreement to you. Any unauthorized use of the Website by you may result in immediate termination of any license or permission granted to you by SunshineMD.

  1. USER-PROVIDED INFORMATION

To use some functions of the Website, you must provide your mobile phone number to SunshineMD, and by doing so, you consent to SunshineMD’s use of your mobile phone number for calls and recurring texts to enable SunshineMD solely to (a) provide services through and improve upon the Website, (b) facilitate communications between you and SunshineMD, (c) provide you with information and reminders regarding services, and (d) such other purposes as SunshineMD may determine that are consistent with the purpose of the Website which shall be limited to the Services only. Standard message, data or other charges from your wireless carrier may apply.

  1. FEEDBACK

All comments, feedback, suggestions, ideas, and other communications (collectively, “Communications”) submitted or offered to us via the Website, in connection with your use of the Website, or through email, postal mail, phone support, or any contact with us, shall be and remain property of SunshineMD. SunshineMD shall be free to use any ideas, concepts, know-how, or techniques contained in any Communication you send to us for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and services using such information. Any personally identifiable information you provide to us through the Website shall be subject to our Privacy Notice. Personally identifiable information or “personal information” is defined in the Privacy Notice.

  1. SUNSHINEMD CODE OF CONDUCT AND PROHIBITED ACTIVITIES

You will only use the Website as permitted by this Agreement. Without limiting the foregoing, you will not engage in any of the following prohibited activities:

  • Abusive and Fraudulent Behavior:
    • Use a buying agent or purchasing agent to make purchases on the Website.
    • Make any unauthorized use of the Website, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
    • Use the Website to advertise or offer to sell goods and services.
    • Attempt to impersonate another user or person or use the username of another user.
    • Use the Website or any information obtained from the Website in order to harass, abuse, harm, or deceive another person.
    • Make improper use of our support services or submit false reports of abuse or misconduct.
    • Infringe the patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, such as uploading, posting, reproducing or distributing information created by SunshineMD
    • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under Applicable Law or that otherwise may be in conflict with this Agreement.
    • Promote or perpetrate any illegal activity, or advocate, promote, or assist any unlawful act.
    • Use the Website as part of any effort to compete with us or otherwise use the Website and/or the content for any revenue-generating endeavor or commercial enterprise.
    • Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Website to you.
    • Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Website.
    • Use the Website in a manner inconsistent with any applicable laws or regulations.
  • Hacking, Viruses, & Network Attacks:
    • Circumvent, disable, or otherwise interfere with security-related features of the Website, including features that prevent or restrict the use or copying of any content or enforce limitations on the use of the Website and/or the content contained therein.
    • Engage in unauthorized framing of or linking to the Website.
    • Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
    • Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
    • Interfere with, disrupt, or create an undue burden on the Website or the networks or services connected to the Website.
    • Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Website.
    • Attempt to bypass any measures of the Website designed to prevent or restrict access to the Website, or any portion of the Website.
    • Delete the copyright or other proprietary rights notice from any content.
    • Copy or adapt the Website’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
    • Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Website or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Website.
    • Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (or “gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
    • Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Website, or using or launching any unauthorized script or other software.
    • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
    • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
    • Otherwise attempt to interfere with the proper working of the Website.
  1. PRIVACY

SunshineMD’s collection and use of personal information in connection with the use of the Website is set forth in SunshineMD’s Privacy Notice, which is incorporated herein by reference.

  1. PROPRIETARY RIGHTS

You acknowledge and agree that the Website, the content posted by SunshineMD and all related copyrights, trademarks, trade dress, patents, trade secrets and other proprietary rights are owned exclusively by SunshineMD, its affiliates and their respective licensors, and are protected by federal, state and common law intellectual property laws. You shall not modify, remove, delete, transmit, transfer or sell, create derivative works from, or in any way exploit any such content, in whole or in part, whether yourself or by assisting others to do any of the foregoing. Except as expressly permitted under U.S. copyright law, you may not upload, post, reproduce or distribute in any way content protected by copyright, or other proprietary right, without first obtaining permission of the owner of the copyright or other propriety right.

SunshineMD service and trademarks, including logos, designs, and other indicators of source (the “SunshineMD Marks”) are trademarks and trade dress owned exclusively by SunshineMD or its affiliates. Your limited license to use the Website does not include any right to use SunshineMD Marks or content in any manner without SunshineMD’s prior written authorization. Without limiting the foregoing, you may not use any SunshineMD Mark or any similar name or mark in any way that is likely to cause confusion among consumers or is disparaging or defamatory in any way.

  1. COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT

SunshineMD respects the intellectual property of others, and expects users of the Website to do the same. If you believe, in good faith, that any materials provided on or in connection with the Website infringe upon your copyright or other intellectual property right, please send all of the following to SunshineMD’s copyright agent using the contact info in Section 19 below:

  • A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Website where the material you claim is infringed is located. Include enough information to allow SunshineMD to locate the material, and explain why you think an infringement has taken place;
  • If applicable, a description of the location where the original or an authorized copy of the copyrighted work exists – such as the URL (Internet address) where it is posted or the publication in which it has been published;
  • Your name, address, telephone number, email address and user name;
  • A statement by you that:
    • You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
      • The information in your notice is accurate; and
      • Under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf
    • An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest
  1. THIRD-PARTY APPS/CONTENT AND THIRD-PARTY ACCOUNTS

The Website may contain links to third-party apps, Websites, materials, content, information, products or services that are not owned or controlled by SunshineMD (“Third-Party App(s)/Content”). Your interactions with such Third-Party Apps/Content, and any other terms, conditions, warranties or representations associated with such interactions, are solely between you and such organizations and/or individuals. SunshineMD does not endorse or assume any responsibility for any such Third-Party Apps/Content or their access to or use by any user.

If you access Third-Party Apps/Content or share your information or any content on or through the use of any Third-Party Apps/Content you do so at your own risk, and you understand that this Agreement and SunshineMD’s Privacy Notice do not apply to your use of such Third-Party Apps/Content. When accessing Third-Party Apps/Content you should carefully review the applicable terms and policies, including, without limitation, privacy and data gathering practices, of such Third Party App/Content. SunshineMD expressly disclaims any liability arising in connection with your use and/or viewing of any Third-Party Apps/Content. You hereby agree to hold SunshineMD harmless from any liability that may result from the use of  Third-Party Apps/Content.

  1. SITE MANAGEMENT

We reserve the right, but not the obligation, to: (a) monitor the Website for violations of this Agreement and our Privacy Policy; (b) take appropriate legal action against anyone who, violates the law, our Privacy policy, or this Agreement, including without limitation, reporting such user to law enforcement authorities; (c) upon notification and without limitation, notice, or liability, to remove from the Website or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (d) otherwise manage the Website in a manner designed to protect our rights and property and to facilitate the proper functioning of the Website.

  1. INTERRUPTIONS

We cannot guarantee the Website will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Website, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Website at any time or for any reason with notice to you. We have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Website during any downtime or discontinuance of the Website where we have notified you in advance. Nothing in this Agreement will be construed to obligate us to maintain and support the Website or to supply any corrections, updates, or releases in connection therewith.

  1. DISCLAIMER OF WARRANTIES

YOU ACKNOWLEDGE AND AGREE THAT YOU ACCEPT THE WEBSITE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND EXCEPT AS PROVIDED IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE WEBSITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. SUNSHINEMD ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE.

SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

  1. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE WEBSITE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID OR PAYABLE, IF ANY, BY YOU TO US DURING THE ONE (1) YEAR PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING.

THE LIMITATIONS AND DISCLAIMER IN THIS AGREEMENT DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND IN SUCH JURISDICTIONS, EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON SUNSHINEMD’S CHOICE OF LAW PROVISION SET FORTH BELOW.

THE LIMITATIONS AND EXCLUSIONS IN SECTION 14 SHALL NOT APPLY TO BREACH OF CONFIDENTAILITY OR DATA PRIVACY OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, INDEMNIFICATION OBLIGATIONS IN SECTION 15 AND/OR ANY OTHER FORM OF LIABILITY WHICH CANNOT LAWFULLY BE LIMITED OR EXCLUDED.

  1. INDEMNIFICATION

You agree to indemnify and hold SunshineMD and its affiliates and their respective officers, directors, employees, and agents harmless against any third party (including another user) claim, suit, or proceeding arising out of or directly related to: (i) your use of the Website or services obtained or provided through your use of the Website; (ii) your actual or alleged breach or violation of this Agreement; (iii) allegations of infringement or violation of third party intellectual property, privacy or publicity rights by content or information submitted to or transmitted through the Website; (iv) allegations that your use of  the Website harasses, defames, or defrauds a third party; or (v) allegations that your use of the Website otherwise violates the rights of any third party, including another user.

We agree to indemnify and hold you and your affiliates and your respective officers, directors, employees, and agents harmless against any third party (including another user) claim, suit, or proceeding arising out of or directly related to: (i) our actual or alleged breach or violation of this Agreement; (ii) allegations of infringement or violation of third party intellectual property, privacy or publicity rights by content or information submitted to or transmitted through the Website; (iii) our negligence, gross negligence or willful misconduct.

  1. TERMINATION AND SUSPENSION

This Agreement shall remain in full force and effect while you use the Website. Without limiting any other provision of this Agreement, we reserve the right to, in our sole discretion and with notice or without liability, deny access to and use of the Website (including blocking certain IP addresses), to any person for any reason or for no reason, including without limitation for breach of any representation, warranty, or covenant contained in this Agreement or of any applicable law or regulation. We may terminate your use or participation in the Website or delete any content or information that you posted at any time, without warning, in our sole discretion.

Even after your right to use the Website is terminated, suspended or limited, this Agreement will remain enforceable.. Each party reserves the right to take appropriate legal action, including but not limited to pursuing an injunction or arbitration in accordance with Section 17 of this Agreement.

All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.

  1. DISPUTES BETWEEN YOU AND SUNSHINEMD; ARBITRATION PROVISIONS

Right to Opt Out of the Arbitration Provisions

                  You may opt out of the mandatory arbitration provisions contained in this Section 17 (sometimes referred to as the “Arbitration Provisions”) by notifying SunshineMD in writing within 30 days of the date you first use the Website. To opt out, you must send a written notification to SunshineMD at the address below, that includes (a) your name, (b) your address, (c) your telephone number, (d) your email address, and (e) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to privacy@sunshinemddata.com. Opting out of mandatory arbitration will not affect any other terms of this Agreement.

Failure to opt out as provided in this Section 17, constitutes mutual acceptance of the Arbitration Provisions by you and SunshineMD. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provisions.

You and SunshineMD agree that if you opt out of the Arbitration Provisions, then any dispute between you and SunshineMD that cannot be resolved amicably shall be resolved in the state court in Delaware or federal courts located with the geographic area comprising the Eastern District of Delaware. You and SunshineMD each irrevocably waive to the fullest extent permitted by law any objection that they may now or hereafter have to the laying of venue of any such action or proceeding in such courts and any claim that any such action or proceeding brought in any such court has been brought in an inconvenient forum. YOU FURTHER IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO TRIAL BY JURY IN ANY SUCH DISPUTE, ACTION, OR PROCEEDING.

Binding Arbitration

Unless you have opted out of the Arbitration Provisions pursuant to this Section 17, you agree that any dispute, claim or controversy arising out of or relating to (a) this Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Website, at any time, whether before or after the date you agreed to this Agreement, whether arising in tort, as a breach of contract claim, or under any other legal theory will be settled by binding arbitration between you and SunshineMD, and not in a court of law.

You acknowledge and agree that you and SunshineMD are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and SunshineMD otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and SunshineMD each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

Arbitration Rules and Governing Law

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by these Arbitration Provisions.

The arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of these Arbitration Provisions, including any claim that all or any part of these Arbitration Provisions are void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement, or any terms or conditions set forth herein, are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in this Agreement, SunshineMD and you acknowledge and agree that these Arbitration Provisions evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under these Arbitration Provisions or the enforcement thereof, then that issue shall be resolved under the laws of the Commonwealth of Delaware.

Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration Consumer Arbitration Rules at http://www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the Commonwealth of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure

Unless you and SunshineMD otherwise agree, the arbitration will be conducted in the state of Delaware. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and SunshineMD submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under Applicable Law. SunshineMD will not seek, and hereby waives all rights SunshineMD may have under Applicable Law to recover, attorneys’ fees and expenses if SunshineMD prevails in arbitration.

Costs and Fees

The costs and fees for the arbitration shall be paid in accordance with the AAA Rules.

Changes

Notwithstanding the introduction regarding consent to be bound by modifications to this Agreement, if SunshineMD changes these Arbitration Provisions after the date you first agreed to this Agreement (or to any subsequent changes to this Agreement), you may reject any such change to the Arbitration Provisions by providing SunshineMD written notice of such rejection within 30 days of the date such change became effective, as indicated in the “last modified” date above. To reject the change to the Arbitration Provisions, you must timely send a written notification to SunshineMD at the email or physical address below that includes (a) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement clearly indicating your intent to reject changes to these Arbitration Provisions. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and SunshineMD in accordance with the provisions of these Arbitration Provisions as of the date you first agreed to this Agreement (or to any subsequent mutually changes to this Agreement). Rejecting the revised Arbitration Provisions will not affect any other terms of this Agreement. Failure to provide such notice constitutes mutual acceptance of the changes to the Arbitration Provisions by you and SunshineMD. Unless material changes are made to the Arbitration Provisions, the making of changes to this Agreement does not create a renewed opportunity for you to opt out of arbitration.

If you opted out of the Arbitration Provisions pursuant to Section 17 when you first started using, or created a registration on the Website, then you will not be bound by the Arbitration Provisions or any changes to the Arbitration Provisions.

Rules and Governing Law

If any portion of these Arbitration Provisions are found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of these Arbitration Provisions or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to these Arbitration Provisions; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

Equitable Relief

Notwithstanding the above, or any other provision in this Agreement to the contrary, nothing in this Agreement shall prohibit either party from seeking equitable relief against the other party, including seeking a temporary restraining order or a preliminary or permanent injunction in connection with  breach of this Agreement.

  1. NOTICES AND CONSENT TO RECEIVE NOTICES ELECTRONICALLY

You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by email or by posting Notices on the Website. You agree that all Notices that SunshineMD provides to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.

  1. CONTACT INFORMATION

If you have any questions about this Agreement or about the Website, please contact us:

  • By email to privacy@sunshinemddata.com; or
  • By mail to

1100 Ludlow Street, 7th Floor

Philadelphia, PA 19107

  1. GENERAL PROVISIONS

This Agreement will be construed under and governed by substantive laws of the Commonwealth of Delaware. Failure by SunshineMD to enforce any provision of this Agreement will not be construed as a waiver of that or any other provision or right. This Agreement, together with SunshineMD’s Privacy Notice and any subscription or other service agreement or terms existing between you and SunshineMD, constitutes the complete and exclusive agreement between you and SunshineMD with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (a) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable, or (b) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by either party without the prior written approval of the other party. Each party may assign or transfer this Agreement without consent: (i) to a parent or subsidiary, Any assignment by party in violation of this Section 20 shall be null and void. This Agreement will inure to the benefit of each party’s, its successors and assigns.