PLEASE READ THE FOLLOWING IMPORTANT INFORMATION IN FULL PRIOR TO DOWNLOADING
Please be on notice that New Sunshine, LLC (“New Sunshine”) the parent company of Australian Gold®, JWOWW®, Caribbean Gold®, Swedish Beauty®, Designer Skin®, Boutique® by Designer Skin, Love DS®, California Tan®, and Emerald Bay® prohibits the unauthorized advertising and sale of its products and the unauthorized use of its intellectual property, including without limitation, copyrighted and trademark protected materials. Internet Retailers, Flea Markets, and other non-tanning salon environments are not authorized to resell New Sunshine products or utilize the images contained in this image website. By accessing this image website you agree to be bound by the following terms and conditions:
1. YOU REPRESENT THAT YOU ARE EITHER A TANNING SALON OR DISTRIBUTOR THAT SELLS NEW SUNSHINE PRODUCTS AND YOU ARE ACCESSING WITH A PASSWORD PROVIDED TO YOU BY NEW SUNSHINE.
2. Your access to this image website and your use of the images contained herein is a nonexclusive, nontransferable, limited license to access and utilize New Sunshine trademarks, logos, copyrights, images, photographs and other intellectual property (“Images”) for the limited and sole purpose of advertising and promoting New Sunshine products only under the terms and conditions set forth below.
3. New Sunshine owns or has a license to use the Images. Your rights to use the Images are limited to what is specifically granted by this Agreement. New Sunshine retains all rights not expressly granted to you herein. Nothing herein constitutes a waiver of New Sunshine’s rights under U.S. or international copyright law, trademark law, or any other foreign, federal or state law.
4. PERMITTED USES: You are granted the following limited rights to the Images:
o You may use the Images ONLY on your website, social media pages, or print advertising in conjunction with the sale or promotion of New Sunshine products;
o You may view and download the Images on a computer in your possession. The Images are “in use” on a computer when it is executed or loaded into the computer’s RAM or other primary memory. The Images are downloaded on a computer when it is placed on a computer’s hard disk, CD-ROM, or other secondary storage device;
o You may copy the Images for back-up and archival purposes, provided that the original and each copy are kept in your possession, and that your use of the Images does not exceed the permission granted in subsection (a) above;
o You may not modify the Images except for merging the Images into advertising copy and all must clearly contain the New Sunshine name, logo or product on the Images for all uses;
o Under this agreement, all advertising containing the Images is subject to the prior approval of New Sunshine. If you are unsure as to the approval by New Sunshine of your potential use of the Images, you can contact New Sunshine customer services at 800-633-0069;
o Any portion of the Images merged into advertising copy will continue to be subject to the terms of this Agreement;
o You may not rent, lend, or sell the Images to a third party;
o Your right to use the Images expires on October 31, 2019 (“Expiration Date”);
o You agree not to use any Images in any manner whatsoever beyond the Expiration Date and agree to remove all Images from all forms of advertisements, including website, Facebook and print advertisements prior to the Expiration Date;
o You agree to indemnify and hold harmless New Sunshine and any of its subsidiaries for any claims asserted against New Sunshine to or in connection with your use of the Images, including but not limited to any and all claims damages made by a third party and any and all attorney fees, costs and expenses incurred by New Sunshine in defending itself against any such claim; and
o You may not, under any circumstances, permit or allow a third party to access, download or otherwise use the Images, except for an agent hired by you to create artwork for the permitted uses under this paragraph.
5. PROHIBITED USES. You may not, without written permission from Australian Gold: You may not, without written permission from New Sunshine: (a) use, copy, modify, merge, or transfer copies of the Images contained therein except as provided in this Agreement; (b) use any back-up or archival copies of the Images (or allow someone else to use such copies) for any purpose other than to replace an original copy in the event it is destroyed or becomes defective; (c) alter, dilute, or modify the Images in any way; (d) place the Images onto a server so that it is accessible via a public network such as the Internet or use the Images on the internet in any manner; (e) sublicense, sell, or rent the Images; (f) use the images on any internet website selling New Sunshine products or otherwise use the images for the unauthorized sale of New Sunshine products; (g) use the Images apart from the New Sunshine name, logo or products; or (h) use the Images in any manner whatsoever other than as expressly permitted in paragraph 4 above.
6. NO CLAIM OF OWNERSHIP. Further, you shall not claim ownership of any New Sunshine Image under this Agreement or permit the use of any Image in such a way as to give the impression that such intellectual property is owned by you.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL AUSTRALIAN GOLD BE LIABLE TO YOU FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING OUT OF YOUR USE OF THE IMAGES, OR ANY CLAIMS MADE AGAINST YOU BY THIRD PARTIES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERMINATION/MODIFICATION. This agreement is effective until October 31, 2018, unless terminated by New Sunshine at any time and for any reason or terminated by you with your return (or destruction, as authorized by New Sunshine) of all electronic or digital copies of the Images in its possession to New Sunshine. This Agreement and your right to use the Images automatically terminates if you materially fail to comply with any provisions of this Agreement. Your license to use the Images also terminates if you assign the Images or otherwise allow a third party to use the Images. Upon termination, you must stop all use of electronic or digital versions of the Images and return any copies that remain in your possession to New Sunshine.
9. ENTIRE AGREEMENT. This agreement contains the entire understanding and supersedes all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or terminated orally. If any provision of this agreement is found to be illegal or unenforceable, the agreement will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect.
10. GOVERNING LAW/JURISDICTION. This Agreement and all transactions contemplated hereby shall be construed, governed and enforced in accordance with the laws of the State of Indiana and shall be treated in all respects as a State of Indiana contract without regard to laws related to choice or conflict of laws. The parties hereto irrevocably consent to the jurisdiction and exclusive venue of the courts of Marion County in the State of Indiana and/or the United States District Court for the Southern District of Indiana with respect to any and all actions in any way related to this Agreement or its enforcement, and the parties to this Agreement irrevocably waive any and all objections thereto.