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Effective Date: August 6, 2020
Welcome to the Terms of Service (these “Terms”) of Sunrise Brands LLC. (“Sunrise Brands”, “we”, “our” or “us”). We provide a website, http://sunrise-brands.com (our “Site”), that allows you to learn more about us, purchase our offerings (“Products”). In these Terms, our Site and any other apps, tools, content or offerings provided through our Site and our Program are referred to as our “Services” .Please read these Terms and our Privacy Policy (which is incorporated into these Terms by reference) carefully and in their entirety. Together with any other policies provided by us and written agreements between you and us (TOGETHER, “AGREEMENTS”), these Terms set forth the legally binding terms and conditions that govern your use of our SERVICES AND YOUR ORDERS OF OUR PRODUCTS. BY USING OUR SERVICES OR OTHERWISE BUYING OUR PRODUCTS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND CONSENTED TO THESE TERMS. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU ARE NOT AUTHORIZED TO USE OUR SERVICES OR BUY OUR PRODUCTS. If you agree to these Terms on behalf of another party, (a) your agreement to these Terms will be treated as the agreement of that other party, (b) you represent and warrant you have valid authority to bind that party to these Terms, and (c) “you” and “your” refer herein to that other party and to your personal use of our Services. Note that Section 13 of these Terms contains a mandatory arbitration provision that requires each of us to use of binding arbitration on an individual basis and limits the remedies available to us in the event of certain disputes. By agreeing to these Terms, each of us is giving up our right to bring our disputes before a jury or as a member of class action. We reserve the right to change these Terms at any time in our sole discretion. Amendments will be effective upon our providing notice of such updated Terms to you (a) by email sent to the email address you last provided to us, or (b) by text message sent to you through the Program using the telephone number you last provided to us. Your continued use of our Services after such notice constitutes your consent to be bound by these Terms as amended. If you have a question about these Terms or our Services, you can contact us by emailing or sending us a text message to the following email address and phone number:
1. USE OF OUR SERVICES
1.a. License Grant
Subject to and conditioned upon your compliance with these Terms (including the restrictions on use) and the terms of any Agreement to which you are a party, we grant you a limited, non-exclusive, personal, revocable, non-transferable, non-sublicensable license to visit and use our Site and leverage our Program to learn more about us and to order our Products for your personal, non-commercial use. Any rights not expressly granted herein or in your Agreement are reserved by us.
1.b. Restrictions on Use of our Services
You may not resell any of our Products, including without limitation through brokers, online sales platforms (like Amazon), exporters or physical stores. In the event we find you offering our Products for sale, you acknowledge and agree that we may require you to remove such offerings, including without limitation through other online service providers. You agree to, at your own expense, indemnify and hold us, our directors, officers, employees, contractors, and, suppliers harmless from any and all claims, losses, damages, liabilities, costs and expenses, including without limitation attorney’s fees, arising out of or relating to your reselling of our Products. Regardless of how you use our Services, you shall not, and shall not permit others to do any of the following, except as expressly provided in an Agreement with us:
We reserve the right to deny you permission to use our Services if we believe that you have violated or will violate these Terms. Additionally, we may, in our sole discretion, limit or cancel quantities or Products purchased per person. These restrictions may include Orders (as defined below) placed by or under the same account, the same credit card, and/or Orders that use the same billing and/or shipping address.
2. PURCHASING OUR PRODUCTS
Our Site does not currently allow you to create a profile with us, and there is no part of our Site that is accessible only by users who have an account with us.
2.2.a. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for all charges you incur in connection with your Orders, including without limitation any applicable taxes and other charges. You are responsible for, and agree to pay, all such charges. If we or our third party payment processor cannot obtain authorization for charges to your payment method or if any amounts you authorize us to charge to your payment method are reversed or charged back for any reason, we may, at our option, in addition to any other remedies, (a) cancel or suspend any undelivered portion of your Orders, (b) make second and/or subsequent attempts to charge your payment method, and/or (c) use any other lawful means to collect payment on any outstanding amounts due to us. You will remain responsible to pay all applicable charges for all Orders. You agree to provide and keep current a valid payment method. However, your failure to do so shall not constitute cancellation of any Order.
2.b. Pricing and Availability
All prices shown via the Services are in U.S. dollars. We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Any applicable taxes and other charges, if any, are additional. We reserve the right to change our Product offerings and our Services, and to adjust prices as we may determine in our sole discretion, at any time and without notice. We will not be able to notify you of changes in any applicable taxes prior to such changes becoming effective. We do not guarantee the availability of Products identified on our Site, and we reserve the right to refuse any Order if the applicable Products are not available.
2.c. Shipping and Delivery
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time. We reserve the right to use shipping couriers of our choosing. Actual delivery dates may vary. We cannot guarantee delivery times or condition for Orders if the address is incorrectly entered, if a change of address is not updated prior to a new Order or if an address is altered while in transit. When placing your Order, please enter your shipping address carefully to ensure accuracy. If you enter the shipping address incorrectly when the order is placed, please contact us in the manner described in Section 4 of these Terms immediately for correction. If your Order is returned to us because of an incorrect address provided or refusal of delivery, we reserve the right to charge you for any additional shipping costs and other fees associated with resending your Order. You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. You should always inspect your Products upon delivery to confirm that they have not been opened or otherwise damaged. In the unlikely event that Products have been opened or significantly damaged upon delivery or you have any other reasonable justification to believe that any Product in your delivery is not suitable for consumption, contact us immediately in the manner described in Section 4 of these Terms, including photographs of the damaged Products sufficient to understand your concern. We will respond to your message and direct you on what to do next. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper and safe handling, storage, use and consumption of the Products following delivery. Failure to follow safe food handling practices may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found here.
2.e. Returns and Refunds
General Policy: Valid Orders are non-refundable if the Products have been delivered in an undamaged state. If you are not completely satisfied with our Products, please contact us in the manner described in Section 4 of these Terms within seven (7) days of receipt. We will happily review your Order and any reported issues. We reserve the right, but have no obligation, to offer you a resolution that may include replacement of the Products in your Order, additional Products or a refund of all or part of the fees paid. Since we are not able to physically access the Products, we may ask that you provide photos of the Products label and damage reported.
Damaged Products: In the unlikely event that Products have been opened or significantly damaged upon delivery or you have any other reasonable justification to believe that any Product in your delivery is not suitable for consumption, contact us immediately in the manner described in Section 4 of these Terms. We may contact you by email or telephone to discuss the relevant Products, and we may request additional pictures of the Products and information about the damage. If we determine that the Products are damaged or otherwise not safe to consume, we will offer an appropriate resolution which may include (a) replacement of the Products in question, (b) credits towards future Orders, or (c) a refund of the fees paid for the affected Products.
3. INTELLECTUAL PROPERTY RIGHTS
3.a. Our Content
Subject only to the express license we grant you in these Terms, as between you and us, we own all right, title and interest in all original content, features and functionality found on, provided by or embodied in our Services, including without limitation any software, copyright-protected works, trademarks, trade dress, service marks, logos, visual interfaces, graphics, design, compilation, information, data, sound files, other files, look and feel and the selection and arrangement thereof (collectively, “Our Content”). Our Content is protected by copyright, trademark and other intellectual property and related laws of the United States and other countries. You may not distribute, modify, transmit, reuse, download, repost, copy or use Our Content, whether in whole or in part, outside the scope of the express license grant provided to you in these Terms, except as expressly provided in an Agreement. We reserve all rights to Our Content not expressly granted in these Terms. You acknowledge and agree that our Services are provided under license, and not sold, to you. You do not acquire any ownership interest in our Services under these Terms.
4. NOTICES
Notices to You: You agree that we may provide notices to you, including without limitation notices of changes to these Terms, through email sent to the email address you last provided to us. Notices to Us: If you have a question about these Terms or our Services, or if you need to provide a notice to us hereunder, you must contact us by emailing or sending us a text message to the following email address and phone number:
Email Address: ngernhard@sunrise-brands.com
Phone Number: 415-320-4485
6. THIRD PARTY CONTENT
Our Services may contain links to third-party websites and services. We are not responsible for any third party websites, applications or services (“Third Party Content”), and we do not approve, monitor, endorse, warrant or make any representations with respect to Third Party Content. You use all Third Party Content at your own risk and should apply a suitable level of caution, diligence and discretion in doing so. When you click on any links to Third Party Content, the applicable third party’s terms and policies apply, including without limitation the third party’s privacy and information gathering practices.
7. TERM AND TERMINATION
These Terms shall apply to you as of the time you first use our Services and shall continue in force until such time as you cease all use of our Services or we terminate your license to use our Services. Subject to the express terms of your Agreement (as applicable), we reserve the right to modify, suspend or terminate your accounts with us and your rights to access to and use of our Services at any time in our sole discretion and without notice to you. If your account with us is terminated or deactivated or your rights to use our Services are terminated:
8. UPDATES AND SUPPORT
Subject to the express terms of your Agreement (as applicable), we may, from time to time and in our sole discretion, develop and provide updates to, additions to or modifications of our Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety current features and functionality of our Services. You agree that all Updates will be deemed part of our Services and shall be subject to these Terms. Notwithstanding the above paragraph, you acknowledge and agree that we have no obligation to: (a) provide you with technical support, (b) provide any Updates, or (c) continue to provide or enable any features or functionality of our Services.
9. YOUR PRIVACY
All of the information we collect through our Services, including Your Content, is subject to our Privacy Policy, which is incorporated by reference into these Terms. Please read our Privacy Policy carefully before using our Services.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES
You represent and warrant to us that:
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE HANDLING, STORAGE, USE AND CONSUMPTION OF THE PRODUCTS YOU PURCHASE. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND FOR VERIFYING THE SUITABILITY OF ALL PRODUCTS AND THEIR INGREDIENTS BEFORE HANDLING, USING OR CONSUMING SUCH PRODUCTS FURTHER. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT OUR PRODUCTS ARE PACKAGED AND STORED IN FACILITIES THAT MAY HANDLE FOODS WITH ALLERGENS (MILK, WHEAT, EGG, SOY, PEANUTS AND TREENUTS) AND WE CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. WE ATTEMPT TO DISPLAY PRODUCT DESCRIPTIONS, INGREDIENT LISTS AND NUTRITIONAL INFORMATION AS ACCURATELY AS POSSIBLE. HOWEVER, OUR SITES, OUR CONTENT AND OUR PRODUCTS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, SUNRISE, OUR SUBSIDIARIES AND OUR AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO OUR SITES, OUR CONTENT AND OUR PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUNRISE, OUR SUBSIDIARIES AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF OUR SERVICES; (D) THAT THE INFORMATION ON OUR SITE OR OUR PRODUCTS, INCLUDING NUTRITIONAL AND PRICING INFORMATION, IS ACCURATE, COMPLETE OR CURRENT; OR (E) THAT OUR SERVICES WILL OPERATE WITHOUT INTERRUPTION OR ERROR.11. LIMITATION ON LIABILITYSUBJECT ONLY TO THE EXPRESS TERMS OF YOUR AGREEMENT (AS APPLICABLE), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES; (B) ANY AMOUNT IN EXCESS OF FIVE HUNDRED DOLLARS ($500); OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL.THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN YOU AND US, AND WE BOTH HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. INDEMNIFICATION
In addition to any other indemnification obligations provided in these Terms and any Agreement, you agree to indemnify and hold us and our officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with:
We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under these Terms, and you agree to cooperate with our defense of such claims. You agree not to settle any claims without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. DISPUTE RESOLUTION
13.a. Informal Dispute Resolution
For any dispute between you and us, you agree to first contact us and attempt to resolve the dispute informally.
13.b. Arbitration
If we have not been able to resolve the dispute informally within thirty (30) days after both parties received notice of the dispute, we both agree to resolve any claim, dispute or controversy arising out of or in connection with or relating to these Terms by binding arbitration conducted pursuant to the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated (referred to as the “JAMS Rules”), before one (1) neutral arbitrator selected by us and approved by you, and under the rules set forth in these Terms. If there is a conflict between the JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms will govern. Unless we both agree otherwise, the arbitration will be conducted in the same city as our offices. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with the JAMS Rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitration, along with all filings and decisions, will be confidential except as necessary to enforce the award. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY.
13.c. Equitable Relief
Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to our Services, but we both agree to submit to the jurisdiction of the state and federal courts with jurisdiction over Austin, Texas for all claims involving equitable relief.
14. GENERAL TERMS
We shall not be liable to you or any other party for any delay or failure in performance due to events outside of our reasonable control, including without limitation acts of God, strikes, riots, war, acts of terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond our reasonable control. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and be enforceable. These Terms, together with any Agreement, are the complete and exclusive statement of the terms and conditions governing your use of our Services, and they supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. No agency, partnership, joint venture or employment is created as a result of these Terms, and you do not have any authority of any kind to bind us in any respect whatsoever. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. You may not assign these Terms without our prior written consent. We may assign or transfer these Terms, in whole or in part, without restriction. These Terms and the relationship between you and us shall be governed by the laws of the State of Massachusetts without regard to its conflict of law provisions.
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