Sunfish Starts Terms of Use

WELCOME TO SUNFISH STARTS! PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS”) CAREFULLY.  THE TERMS ARE A LEGAL CONTRACT BETWEEN YOU (“USER”) AND SUNFISH SOLUTIONS, LLC (“COMPANY,” “WE,” “US” OR “OUR”).

SECTION 16 OF THESE TERMS OF USE IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

PLEASE BE AWARE THAT SECTION 17 (COMPANY COMMUNICATIONS) OF THE AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL AND TEXT MESSAGE.

BY ACCESSING OR USING OUR SUBSCRIBER PORTAL MADE AVAILABLE THROUGH THE SUNFISHSTARTS.COM WEBSITE (“PORTAL”), ENROLLING IN SUNFISH STARTS AS A SUBSCRIBER, OR REGISTERING AN ACCOUNT OR ACCESSING OR USING ANY DATA, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE PORTAL (COLLECTIVELY, THE “SERVICES”), OR CLICKING ON A BUTTON OR TAKING ANOTHER ACTION TO SIGNIFY YOUR ACCEPTANCE OF THE TERMS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE PORTAL (AS DEFINED BELOW).  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PORTAL OR SERVICES.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Company will make a new copy of the Terms of Use available within the Portal and any new Supplemental Terms will be made available from within, or through, the affected Service within the Portal.  We will also update the “Last Updated” date at the top of the Terms of Use.  Company may require you to provide consent to the updated Terms in a specified manner before further use of the Portal and/or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Portal and/or the Services.  Otherwise, your continued use of the Portal and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE PORTAL TO VIEW THE THEN-CURRENT TERMS.

1. USE OF THE SERVICES AND COMPANY PROPERTIES.  
   
   1. Description of Services. Sunfish Starts is a one-year subscription-based, family-building education, navigation, readiness, and support membership program offered by the Company (“Services”). We provide both an introductory subscription and a full subscription. To understand what each subscription includes, please visit our subscriptions page at joinsunfish.com/sunfish-starts-subscription-benefits.   Please note that the specific scope, availability, and delivery of any membership benefit may vary based on location, eligibility, vendor availability, applicable law, medical appropriateness, and operational considerations. Please review our Privacy Policy located at joinsunfish.com/privacy-policy to better understand how Data may be used.
   2. Medical Disclaimers. COMPANY IS NOT A HEALTHCARE PROVIDER, PHYSICIAN PRACTICE, FERTILITY CLINIC, LABORATORY, PHARMACY, OR NURSING PROVIDER, AND DOES NOT PRACTICE MEDICINE OR PROVIDE MEDICAL ADVICE, MEDICAL CARE, MEDICAL DIAGNOSES, OR MEDICAL TREATMENT OF ANY KIND.THE SERVICES, INCLUDING ALL CONTENT, INFORMATION, TOOLS, AND RESOURCES MADE AVAILABLE THROUGH SERVICES, ARE PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. THE SERVICES ARE NOT INTENDED TO BE, AND SHOULD NOT BE USED AS, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR CARE. THE SERVICES HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE, MEDICAL CONDITION, OR HEALTH PROBLEM.YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP, NURSE-PATIENT RELATIONSHIP, OR ANY OTHER PROFESSIONAL HEALTHCARE RELATIONSHIP BETWEEN YOU AND COMPANY OR ANY COMPANY DESIGNEE. YOU ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR ANY COMPANY DESIGNEE PROVIDES ANY MEDICAL ADVICE, CARE, OR OPINIONS IN CONNECTION WITH THE SERVICES.YOU SHOULD ALWAYS SEEK THE ADVICE OF A QUALIFIED HEALTHCARE PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION, DIAGNOSIS, OR TREATMENT, AND BEFORE UNDERTAKING A NEW HEALTHCARE REGIMEN. YOU SHOULD NEVER DISREGARD, DELAY, OR DISCONTINUE PROFESSIONAL MEDICAL ADVICE OR TREATMENT BECAUSE OF INFORMATION OBTAINED THROUGH THE SERVICES. IF YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, CALL 911 IMMEDIATELY. THE SERVICES ARE NOT INTENDED AS, AND SHOULD NOT BE USED IN LIEU OF, 911 OR E-911 EMERGENCY SERVICES.
   3. Questionnaires. In connection with your access to and use of the Services, you understand that you may be asked to respond to, one (1) or more questionnaires conducted by Company or Company Designees (“Questionnaires”), where you may be asked to share personal and/or medical history, diet, exercise, nutrition, as well as such other personal information or data (collectively, “Provided Data”). The Provided Data is subject to the License below, and you grant to Company the irrevocable right and permission to use and exploit the Provided Data in accordance with the License. You will only provide Provided Data to the extent you can represent and warrant the following, and hereby do represent and warrant the following with respect to any Provided Data you provide:
      
      1. Any Provided Data you provide is true, accurate, and complete in all respects; and
      2. the Provided Data, and the use of the Provided Data, as permitted hereunder do not and will not violate any law or constitute slander or defamation of any third party, or infringe any rights of any third party, including, but not limited to, any copyright and/or rights of privacy or publicity.
      3. YOU ACKNOWLEDGE AND AGREE THAT ANY PROVIDED DATA MAY BE USED PURSUANT TO THE LICENSE AND OTHERWISE IN CONNECTION WITH THE DEVELOPMENT OF RESULTS (AS EACH IS DEFINED BELOW) AND THAT THE PROVIDED DATA AND RESULTS MAY BE SHARED AS DESCRIBED HEREIN AND IN THE PRIVACY POLICY LOCATED HERE.
   4. Lab Tests.
      
      1. Lab Providers and Lab Data. Certain diagnostic testing opportunities may be included in your subscription. Any diagnostic or lab testing made available in connection with the Services if facilitated by and administered through independent third-party laboratory and testing providers (“Lab Providers”). You acknowledge and agree that the results of your lab tests facilitated by Lab Providers as part of the Services (collectively, “Lab Data”) may be shared with Company. Lab Data includes, without limitation, unredacted laboratory blood test results, including any confirmatory analyses, reference ranges, physician notes interpreting such results, associated demographic data reasonably necessary to contextualize the laboratory values, and any related medical history relied upon in connection with the blood tests. The Lab Data is subject to the License below, and you grant to Company and Company Designees the irrevocable right and permission to use and exploit the Lab Data in accordance with the License.
      2. Physician Order and Results Review Services. When you order a lab test through the Services, your request is reviewed by a licensed, independent third-party physician group ("Physician Group") that is not employed by or affiliated with Company. The Physician Group evaluates your request and, if medically appropriate, generates a physician order for the lab test. After your specimen is collected and processed by the applicable Lab Provider, the Physician Group reviews your test results and, in the event of abnormal or critical results, may contact you to recommend follow-up care. You acknowledge and agree that: (i) the Physician Group operates independently of Company and is solely responsible for all clinical decisions, including whether to order a test and how to interpret results; (ii) your interaction with the Physician Group, including any telehealth consultation, establishes a physician-patient relationship between you and the Physician Group, not between you and Company; (iii) Company does not direct, supervise, or control the Physician Group's clinical judgment; and (iv) you consent to the Physician Group's review of the information you provide through the Services (including your Provided Data) for the purpose of generating physician orders and reviewing your test results.
      3. LAB PROVIDERS DISCLAIMERS. PLEASE NOTE COMPANY DOES NOT OWN, OPERATE, EMPLOY, SUPERVISE, OR CONTROL ANY LAB PROVIDER, AND IS NOT RESPONSIBLE OR LIABLE FOR: (I) THE ORDERING, COLLECTION, PROCESSING, ANALYSIS, OR REPORTING OF ANY LAB TEST OR DIAGNOSTIC; (II) THE ACCURACY, COMPLETENESS, OR TIMELINESS OF ANY LAB RESULTS; (III) ANY ACT, OMISSION, ERROR, NEGLIGENCE, OR MISCONDUCT BY ANY LAB PROVIDER OR ITS PERSONNEL; (IV) THE AVAILABILITY OR CONTINUED PARTICIPATION OF ANY LAB PROVIDER; OR (V) ANY OUTCOME, HARM, OR LOSS ARISING FROM OR RELATED TO ANY LAB TESTING OR DIAGNOSTIC SERVICE. LAB PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT AGENTS, EMPLOYEES, OR REPRESENTATIVES OF COMPANY. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, ACCURACY, RELIABILITY, OR RESULTS OF ANY LAB TEST OR DIAGNOSTIC SERVICE PROVIDED BY A LAB PROVIDER. YOUR ENGAGEMENT WITH ANY LAB PROVIDER IS SOLELY BETWEEN YOU AND THAT LAB PROVIDER, AND YOU MAY BE REQUIRED TO AGREE TO SEPARATE TERMS, CONDITIONS, AND PRIVACY POLICIES IMPOSED BY SUCH LAB PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR ANY COMPANY DESIGNEE PROVIDES ANY MEDICAL ADVICE, CARE, OR OPINIONS REGARDING YOUR LAB DATA OR OTHERWISE IN CONNECTION WITH THE SERVICES, AND YOUR PROVISION OF LAB DATA, AND USE OF THE SERVICES, DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH COMPANY OR ANY COMPANY DESIGNEE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT (I) YOU WILL DISCUSS AND SEEK MEDICAL ASSESSMENT, ATTENTION, ADVICE, AND TREATMENT INDEPENDENTLY OF THE SERVICES AND RESULTS, AND SUCH ASSESSMENT, ATTENTION, ADVICE, AND TREATMENT SHOULD NOT BE IGNORED OR DELAYED DUE TO THE SERVICES OR RESULTS; (II) YOU SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE; AND (III) YOU SHOULD ALWAYS CONSULT WITH YOUR CARE TEAM IF YOU HAVE QUESTIONS OR CONCERNS ABOUT YOUR HEALTH OR CONDITIONS.
   5. Recommendations.  From time to time, as part of the Services, Company may provide you with general recommendations, which may include, without limitation, recommendations relating to supplements, diet, nutrition, exercise, lifestyle, and other wellness topics (“Recommendations”).  Such Recommendations may be generated or informed by your Provided Data, Lab Data, Connected Account Data, or other Data you have provided to Company and are intended solely for general informational and educational purposes.  YOU ACKNOWLEDGE AND AGREE THAT ALL RECOMMENDATIONS ARE GENERAL IN NATURE AND DO NOT CONSTITUTE, AND ARE NOT A SUBSTITUTE FOR, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR CARE.  COMPANY IS NOT A LICENSED MEDICAL PROVIDER, AND NO RECOMMENDATION PROVIDED THROUGH THE SERVICES SHOULD BE CONSTRUED AS MEDICAL ADVICE OR AS CREATING ANY PROFESSIONAL RELATIONSHIP BETWEEN YOU AND COMPANY.  Before making any changes to your health routines, supplement regimen, diet, nutrition plan, or any other aspect of your health or wellness based on a Recommendation, you must consult with your physician, pharmacist, or other qualified healthcare professional to determine whether such changes are appropriate for your individual circumstances.  Individual results may vary, and a Recommendation that is suitable for one person may not be appropriate for another.  Company makes no representations or warranties that any Recommendation is accurate, complete, safe, or effective for your particular situation.
   6. Company Properties.  The Portal, the Services, and the information and content available in the Portal and the Services (as these terms are defined herein) (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world.
   7. Updates.  You understand that Company Properties are evolving.  As a result, Company may require you to accept updates to Company Properties that you have installed on your computer or mobile device.  You acknowledge and agree that Company may update Company Properties with or without notifying you.  You may need to update third-party software from time to time in order to use Company Properties.
   8. Certain Restrictions.  The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access Company Properties in order to build a similar or competitive website, application or service; (d) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Terms.  Company, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of any Company Property terminates the licenses granted by Company pursuant to the Terms.
2. REGISTRATION.
   1. Registering Your Account.  In order to access certain features of Company Properties you may be required to become a Registered User.  For purposes of the Terms, a “Registered User” is a user who has registered an account on the Portal (“Account”).  In creating an Account, we ask that you provide complete and accurate information about yourself, and maintain and promptly update such information to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts.
   2. Registration Data.  You represent that you are (a) of legal age to form a binding contract; and (b) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You may not share your Account or password with anyone, and you agree to (i) notify Company immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.
   3. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Company Properties, including but not limited to, a mobile device that is suitable to connect with and use Company Properties, and the Device to measure and track Data.  The Device is not included in the price of your subscription, and must be separately purchased. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Company Properties.
   4. Connected Accounts. In order to receive the benefit of certain features and functions of the Services, you acknowledge and agree that you will need to link or otherwise connect or integrate one (1) or more compatible fitness trackers or other compatible wearable health devices or mobile applications (collectively, “Connected Accounts”). By connecting any Connected Accounts to the Services, (i) you represent and warrant that you are entitled to link or otherwise connect and provide access to the Connected Account to the Services, (ii) you represent and warrant that you are in good standing with respect to such Connected Accounts and not in breach of any agreement between you and the provider of any such Connected Accounts, and (iii) you acknowledge and agree that Company may access data collected from or provided by any such Connected Account (“Connected Account Data”) so that it may be used in accordance with the terms of this Agreement. The Connected Account Data is subject to the License herein, and you grant to Company and Company Designees the irrevocable right and permission to use and exploit the Connected Account Data in accordance with the License.
3. STORAGE. Unless expressly agreed to by Company in writing elsewhere, Company has no responsibility or liability for the deletion or accuracy of Data; the failure to store, transmit or receive transmission of Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties.  Certain Services may enable you to specify the level at which such Services restrict access to Data.  You are solely responsible for applying the appropriate level of access to Data.  If you do not choose, the system may default to its most permissive setting.  You agree that Company retains the right to create reasonable limits on Company’s use and storage of Data, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Company in its sole discretion.
4. OWNERSHIP.
   
   1. Company Properties.  Except with respect to your Data, you agree that Company and its suppliers own all rights, title and interest in Company Properties, including without limitation, all Models.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Company Properties.
   2. Trademarks. “SUNFISH”, “SUNFISH STARTS”, and other related graphics, logos, trademarks, service marks and trade names used on or in connection with Company Properties are the trademarks of Company and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in Company Properties are the property of their respective owners.
   3. Other Content.  Except with respect to Data, you agree that you have no right or title in or to any content or other data that appears on or in Company Properties.
   4. Data.  Company does not claim ownership of Data.  Subject to any applicable account settings that you select, you grant Company and those acting with Company’s authority or permission (“Company Designees”) the irrevocable right and permission, on a perpetual, worldwide, royalty-free, fully paid up, sublicensable, and transferable basis, to transmit, distribute, broadcast, copyright, publish, project, exhibit, display, print, and otherwise use and/or create derivative works from the Connected Account Data, Provided Data, and Lab Data (collectively, “Data”), in connection with the development and improvement of the Services and other Company products and services, including without limitation, on a de-identified basis, to develop and train generative artificial intelligence algorithms and tools, and machine learning models, in each instance, that are developed, owned, managed, licensed, or operated by or on behalf of Company (collectively, “Models”) (collectively, the foregoing rights, the “License”).  You agree that you, not Company, are responsible for all of the Data that you make available on or in Company Properties.
      
      1. You acknowledge and agree that Company will have the right to, and you authorize Company to, disclose or otherwise provide the Lab Data and other Data to clinicians and other members of your care team authorized by you (collectively, “Care Team”), for the purposes of facilitating and coordinating care for you (“Authorized Purpose”). Unless earlier revoked, this authorization shall remain in effect for a period of one (1) year from the date of execution or until the Authorized Purpose has been fully achieved, whichever occurs first. You may revoke this authorization at any time by delivering written notice of revocation to Company (including through the “Settings” section of the Portal); however, any revocation shall be prospective only and shall not affect disclosures or uses made in reliance on this authorization before the effective date of revocation. Company shall document the date and time any revocation is received and shall cease further disclosures or uses upon revocation, except to the extent necessary to comply with applicable law or to maintain backup archival copies created in the ordinary course, provided that such copies remain subject to the confidentiality obligations herein.
      2. As part of the License, you irrevocably and unconditionally grant to Company and Company Designees the right to create analyses and insights based on your Data, and to combine the Data with other content, information, or data received by Company and Company Designees for the purposes of creating aggregated analyses and insights (which may or may not be de-identified or anonymized) (collectively, the “Results”), and to use, re-use, edit, copy, reproduce, transmit, distribute, broadcast, copyright, publish, project, exhibit, display, print and/or create derivative works of, any and all Results, without restriction as to changes or alterations, including to disclose any such Results to your Care Team; provided, however, Company will not publicly disclose any Results that identify you as a source of such Results, without your prior written permission (which may be granted through your settings within the Services). You understand that Company is under no obligation to use any of the rights granted by you in the License or otherwise hereunder and has made no representations to you in this regard.
   5. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties and/or Company’s business.
5. USER CONDUCT. As a condition of use, you agree not to use Company Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity, privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Company’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Company; (vi) interferes with or attempts to interfere with the proper functioning of Company Properties or uses Company Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against Company Properties, including but not limited to violating or attempting to violate any security features of Company Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Company Properties, introducing viruses, worms, or similar harmful code into Company Properties, or interfering or attempting to interfere with use of Company Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Company Properties.
6. INVESTIGATIONS. Company may, but is not obligated to, monitor or review Company Properties at any time.  Although Company does not generally monitor user activity occurring in connection with Company Properties, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use Company Properties, without prior notice to you.
7. INTERACTIONS WITH OTHER USERS. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that Company reserves the right, but has no obligation, to intercede in such disputes.  You agree that Company will not be responsible for any liability incurred as the result of such interactions.
8. THIRD-PARTY SERVICES. Company Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”).  When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites and Third-Party Applications are not under the control of Company. Company is not responsible for any Third-Party Websites or Third-Party Applications.  Company provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Portal or Services, the Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. Telehealth Consent. You understand that Telehealth is a mode of delivering health care services via communication technologies (e.g., internet or cellphone) to facilitate diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care. By accepting these terms and conditions, you understand and agree that (i) the Physician Group and/or the Lab Providers offer telehealth consultations, which are conducted through videoconferencing, telephonic, and asynchronous technology and my telehealth provider will not be present in the room with you; (ii) there are potential risks to the use of telehealth technology, including but not limited to, interruptions, delays, unauthorized access, and or other technical difficulties; (iii) either a Telehealth provider or you can discontinue the telehealth appointment if the technical connections are not adequate for your visit; (iv) you could seek an in-office visit rather than obtain care from a Telehealth provider, and your are choosing to participate in a Telehealth consultation with the Lab Providers; (v) to protect the confidentiality of your health information,you agree to undertake your Telehealth consultation in a private location, and you understand that your Telehealth provider will similarly be in a private location; (vi) in an emergent situation, the responsibility of the Telehealth provider may be to direct you to emergency medical services, such as an emergency room. By accepting these terms and conditions, you certify that (i) you have read this paragraph 8 and/or had it explained to your (II) you understand the risks and benefits of a Telehealth appointment and (iii) you have been given the opportunity to ask questions and that such questions have been answered to your satisfaction.
10. PAYMENTS.
    
    1. General. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing Company with your credit card number and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required.  You agree to immediately notify Company of any change in your billing address or the credit card used for payment hereunder.  Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Company Properties or by e-mail delivery to you.  Notwithstanding the foregoing, any payments for lab tests and any fees charged by Lab Providers in connection with diagnostic or laboratory testing made available through the Services are paid directly to the applicable Lab Provider and not to Company.  Your subscription includes a component allocable to laboratory testing performed by independent third-party Lab Providers (“Lab Component”). The Lab Component reflects the actual fees charged by the applicable Lab Provider, without markup by Company.
    2. Payment Processing.  Company uses Stripe, Inc. (“Stripe”) as its third-party payment processor to process all payment transactions made through the Services. By providing your payment information and completing a transaction, you acknowledge and agree that: (i) your payment information will be transmitted directly to and processed by Stripe; (ii) Company does not store your full credit card number or other sensitive payment information on its servers; (iii) your use of Stripe’s payment processing services is subject to Stripe’s Terms of Service, available at https://stripe.com/legal/ssa, and Stripe’s Privacy Policy, available at https://stripe.com/privacy, each of which is incorporated herein by reference; and (iv) you consent to Stripe’s collection, use, and processing of your payment and personal information in accordance with Stripe’s Privacy Policy.  Company is not responsible for any errors, failures, or unauthorized access arising from Stripe’s processing of your payment information.
    3. Subscription; 6-Month Commitment Period; Cancellation.
       
       1. Subscription; Commitment Period. Enrolling in Sunfish Starts means enrolling in a subscription with a six (6)-month commitment period (the “Commitment Period”), beginning on the date of enrollment. At the time of enrollment, subscribers may elect to pay for the Commitment Period either (i) annually, in a single upfront payment, or (ii) monthly, by paying a monthly subscription fee each month for six (6) months, each as described below in Section 10.3(b). At the end of the Commitment Period, your access to the Services will terminate unless you purchase a new subscription.
       2. Billing; Payment Options. Subscribers may choose between the below payment options at enrollment. The payment option selected at enrollment applies for the duration of the Commitment Period and may not be changed during the Commitment Period. Please note that all subscription pricing includes payments for lab tests and any fees charged by Lab Providers in connection with diagnostic or laboratory testing made available through the Services, and that such fees are paid directly to the applicable Lab Provider at cost, without markup.
          
          1. Annual Payment (Discounted). Members who pay the full membership fee for the Commitment Period in a single upfront payment receive a discount off the stated annual subscription price as set forth on our Pricing Page available at joinsunfish.com/sunfish-starts-subscription-pricing.
          2. Monthly Billing. Subscribers who elect monthly billing will be charged a monthly subscription fee on the same day of each month as their enrollment date for each month of the Commitment Period. The monthly subscription fee amounts are set forth on our Pricing Page available at joinsunfish.com/sunfish-starts-subscription-pricing.
       3. Right to Auto-Charge. You authorize Company and Stripe to charge your Payment Method for all applicable subscription fees. This includes any upfront annual subscription fees and monthly subscription fees. You may update your Payment Method at any time through the “Settings” section of the Portal. If a payment fails, Company may retry charges, suspend services, terminate your subscription, engage collection agencies, and pursue any other lawful remedy.
       4. Annual Commitment; Post-Commitment Period. The Commitment Period represents a six (6)-month annual commitment to the subscription program, regardless of the payment option selected. Members who elect Annual Payment satisfy this commitment through a single upfront payment. Members who elect Monthly Billing satisfy this commitment by paying the monthly subscription fee for each month of the Commitment Period, even if you opt to cancel.
       5. Cancellation. You may cancel your subscription at any time by navigating to your Account within the “My Profile” section of the Portal and following the cancellation prompts. Upon cancellation, you will retain access to the Sunfish Starts Services until the end of the Commitment Period. If you selected the Annual Payment option, you will not be required to pay any additional fees upon cancellation. IF YOU SELECTED THE MONTHLY BILLING OPTION AND CANCEL BEFORE THE END OF THE COMMITMENT PERIOD, YOU WILL BE RESPONSIBLE FOR MAKING MONTHLY SUBSCRIPTION PAYMENTS UNTIL THE END OF THE COMMITMENT PERIOD. FOR EXAMPLE, IF YOU CANCEL WITH SIX (6) MONTHS REMAINING IN YOUR COMMITMENT PERIOD, YOU WILL BE RESPONSIBLE FOR THE REMAINING SIX (6) MONTHLY SUBSCRIPTION FEES. YOU AUTHORIZE COMPANY AND STRIPE TO CHARGE YOUR PAYMENT METHOD FOR ALL REMAINING SUBSCRIPTION FEES DURING YOUR COMMITMENT PERIOD EVEN IF YOU CANCEL YOUR SUBSCRIPTION DURING THE COMMITMENT PERIOD.
       6. Refunds. Subscribers may cancel within forty-eight (48) hours following enrollment for a full refund provided no subscription benefits have been used (including, but not limited to, accessing the subscriber portal, downloading proprietary materials, or requesting a diagnostic test order). AFTER EXPIRATION OF THE REFUND PERIOD, ALL FEES ARE NON-REFUNDABLE EXCEPT AS REQUIRED BY LAW. Except as required by applicable law, Company does not issue refunds or credits, in whole or in part, for any portion of the membership fee, whether paid as an upfront annual payment or as monthly subscription fees, including upon cancellation, non-use, or dissatisfaction. For the avoidance of doubt, no prorating or partial refunds will be provided for any unused portion of a subscription period.
       7. Changes to Subscription Plan. Company may change its subscription plans and the price of its services from time to time. Company will notify you at least thirty (30) days before any price changes or changes to your subscription plan will become effective. If you do not wish to accept the price change or change to your subscription plan, you can cancel your subscription before the change takes effect.
       8. Itemized Lab Fee Disclosure.  Subscribers residing in New York and New Jersey have the right under their respective state patient billing laws to request an itemized price list from Sunfish for their laboratory tests.
11. INDEMNIFICATION.  You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Company Property; (b) your violation of the Terms; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Portal or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms and/or your access to Company Properties.
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
    
    1. AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PORTAL OR SERVICES.  
       
       1. THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
       2. ANY DATA DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH DATA.
       3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
       4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
       5. FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
    2. Not Intended for Emergency Use. COMPANY’S GOAL IS TO PROVIDE HELPFUL AND ACCURATE INFORMATION ON THE SERVICES.  HOWEVER, THE SERVICES ARE DEPENDENT UPON A NUMBER OF FACTORS THAT ARE OUTSIDE THE CONTROL OF COMPANY. USE OF THE SERVICES SHOULD NOT REPLACE YOUR GOOD JUDGMENT AND COMMON SENSE. IF YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, CALL 911.
    3. Medical Disclaimer. COMPANY DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE.  THE CONTENTS OF THE PORTAL AND SERVICES, INCLUDING TEXT, GRAPHICS, IMAGES, AND OTHER DATA CREATED BY THE SERVICES OR OTHERWISE CONTAINED IN THE PORTAL OR THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR YOUR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR PUBLIC HEALTH INFORMATION.
    4. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING THE ACTIONS OF LAB PROVIDERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13. LIMITATION OF LIABILITY.
    
    1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    2. Cap on Liability.  UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    3. Data.  COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY DATA, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
    4. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
14. TERMINATION.  
    
    1. Termination.  These Terms shall remain in full force and effect until your Account is terminated as provided herein. You may cancel your subscription and delete your Account at any time, for any reason, by navigating to your Account within the “Settings” section of the Portal and following the cancellation prompts, as further described in Section 10.3(e). Company may terminate your Account if (a) you are in breach of the Terms; (b) if Company decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of these Terms and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Company will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
    2. Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Data associated with or inside your Account (or any part thereof).  Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Data associated therewith from our live databases.  Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Data.  Notwithstanding any termination or cancellation of your subscription or Account, all payment obligations that accrued prior to termination, and any continuing payment obligations arising under Section 10.3 (including, without limitation, any obligation to pay remaining monthly subscription fees through the end of the applicable Commitment Period), shall survive and remain due and payable in full.  Termination of your subscription or Account shall not relieve you of any obligation to pay fees that have become due and payable or that will become due and payable through the end of the Commitment Period.  All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, limitation of liability, and payment obligations.
15. INTERNATIONAL USERS.  Company Properties can be accessed from countries around the world and may contain references to Services and Data that are not available in your country.  These references do not imply that Company intends to announce such Services or Data in your country.  Company Properties are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that Company Properties are appropriate or available for use in other locations.  Those who access or use Company Properties from other countries do so at their own volition and are responsible for compliance with local law.
16. DISPUTE RESOLUTION.  Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.  This Section 15 only applies to residents of the United States.
    
    1. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disagreements, controversies, disputes, or claims that have arisen or may arise between you and Company, whether arising out of or relating in any way to these Terms (including any alleged breach thereof), the Portal, or the Services, any advertising or communications you receive, or any aspect of the relationship or transactions between us (each a “Dispute”), shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that (i) you and Company may assert individual claims in small claims court, if such claims qualify and remain in small claims court; and (ii) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or that involve facts occurring before the existence of this or any prior versions of the Terms, unless those disputes were noticed prior to these Terms becoming effective, as well as claims that may arise after the termination of these Terms. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the Law allows, seek relief against us on your behalf.
    2. Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection above entitled “Agreement to Arbitrate”. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
    3. Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection below entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New Castle County, Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Company from participating in a class-wide or mass settlement of claims.
    4. Informal Dispute Resolution.
       
       1. Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing Company’s customer support at sunfishstarts@joinsunfish.com.  If such efforts prove unsuccessful, you and Company agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Company agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.
       2. To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Company should be sent by (i) regular mail to Company at 6060 Center Drive, Floor 10, Suite 1000, Los Angeles CA, 90045 (the “Notice Address”) or (ii) by email at sunfishstarts@joinsunfish.com. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute. Company will send Notice, including a description of the Dispute, to your email address or regular address on file.  It is your responsibility to ensure your email and regular address are correct and remain up to date.
       3. The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to participate in an Information Dispute Resolution Conference as part of a good faith effort to resolve the Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
       4. The statute of limitations and any filing deadlines shall be tolled while the parties engage in Informal Dispute Resolution.
    5. Rules and Forum.
       
       1. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration.  The arbitration will be administered by the National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration , except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.
       2. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration, and the account username (if applicable), as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to Company should be sent by email to sunfishstarts@joinsunfish.com or regular mail to the Notice Address. Company will provide the Demand to your email or mailing address on file.
       3. If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”).
       4. Unless you and Company otherwise agree, or the Batch Arbitration process discussed below is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in New Castle County, Delaware, or at your election, the county where your reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”). However, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the arbitration fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
       5. You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
       6. You and Company agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.
    6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.
    7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment  on the arbitration award may be entered in any court having jurisdiction.
    8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.
    9. Batch Arbitration.
       
       1. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations (“Claimants’ Counsel”), within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.
       2. All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.
       3. You and Company agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
       4. This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.
    10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the Company at the Notice Address, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. Any opt-out notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or Company’s rights.  If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.
    11. Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief” above, if any part or parts of this Arbitration Agreement (other than the subsection entitled “Batch Arbitration”) are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect.  However, if subsection entitled “Batch Arbitration” of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in New Castle County, Delaware. You further agree that any Dispute that you have with Company as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
    12. Future Changes to Arbitration Agreement. You and we agree that Company retains the right to modify this Arbitration Agreement in the future. Any such changes will be posted at sunfishstarts.com and you should check for updates regularly. We agree that if Company makes any future material change to this Arbitration Agreement, it will notify you. Your continued use of the Portal and/or Services, including the acceptance of products and services offered through the Portal, following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of these Terms with an arbitration agreement and you did not validity opt of arbitration then, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. Company will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
    13. General. These Terms constitute the entire agreement between you and Company and govern your use of the Service, superseding any prior agreements between you and Company with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Company agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New Castle County, Delaware. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Subject to the provisions of the Dispute Resolution By Binding Arbitration section above, if any provision or portion of any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision or portion thereof, and the other provisions or portion(s) of the provision of these Terms remain in full force and effect. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of Company, but Company may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. It is your responsibility to keep your contact information up to date. The Service may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Service.
17. COMPANY COMMUNICATIONS
    
    1. Generally. You may have the opportunity to provide us with your e-mail address and/or phone number. By providing your email address and phone number to us, you consent to receive email and SMS/text communications from Company. Communications from us may include communications about your use of the Services.
    2. Promotional Email Communications. You will have the ability to opt out of receiving marketing e-mail communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE PORTAL OR SERVICES.
    3. SMS Messages. Company may offer one or more mobile message programs (collectively, the “Message Service”) that allow users to receive SMS/MMS mobile messages. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include service-related updates such as communications to facilitate your access to our offerings. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, reply with the keyword STOP to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP keyword command and you agree that that we and our service providers will have no liability for failing to honor such requests. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service. Please note that the use of this email address is not an acceptable method of opting out of the Message Service. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled.
    4. Electronic Communications. The communications between you and Company use electronic means, whether you use the Services or send us emails, or whether Company posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights or your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
18. GENERAL PROVISIONS.
    
    1. Release.  YOU HEREBY RELEASE THE COMPANY PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, PROPERTY DAMAGE, PHYSICAL INJURY, CONTAGIOUS DISEASE OR DEATH THAT MAY BE SUSTAINED BY YOU WHICH MAY BE SUSTAINED BY YOU WHILE USING OR IN CONNECTION WITH THE USE OF THE SERVICES. THIS RELEASE WILL BE BINDING UPON YOUR RELATIVES, SPOUSE, HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, AND ANY OTHER INTEREST PARTIES.
       
       You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in these Terms are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Services.
    2. Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure.  Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to Company Properties, please contact us at: sunfishstarts@joinsunfish.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    5. Exclusive Venue.  To the extent the parties are permitted under the Terms to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in New Castle County, Delaware.
    6. Governing Law THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS.
    7. Notice.  Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Company at the Notice Address.  Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    8. Waiver.  Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    9. Severability.  If any portion of the Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    10. Export Control.  You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws.  In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
    11. Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    12. Entire Terms.  The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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