High Mowing Affiliate Agreement
Effective Date: October 1, 2021
Please read this Affiliate Agreement carefully before you apply to join our Affiliate Program. It describes how we will work together and other aspects of our business relationship. It is a legal document, but we have tried to make it as readable as possible. These terms are important, so we cannot have you participate in our Affiliate Program unless you agree to them.
By applying to be a High Mowing Organic Seeds affiliate ("Affiliate"), you:
b. acknowledge and agree that these terms and conditions constitute an agreement between us and you upon your acceptance into the Program (the "Agreement");
c. represent and warrant that you are lawfully able to enter into this Agreement; and
d. acknowledge and agree that you are and will remain in compliance (and will be responsible for assuring that your employees, agents and contractors comply) with the terms and conditions of this Agreement.
The High Mowing Organic Seeds Affiliate Program and Agreement are professionally managed by ShareASale.com Inc. (“ShareASale”) as an affiliate network provider. High Mowing Organic Seeds is a merchant (“Merchant”) in the Program who desires to have affiliates (“Affiliates”) in the Program market, advertise, and promote the products of High Mowing Organic Seeds. Additionally, the Program is intended to direct visitors of the Affiliate’s website to High Mowing Organic Seeds’ website.
As used in this Agreement:
1. "High Mowing Organic Seeds", "we", "us" or "our" refers to High Mowing Organic Seeds and our website.
2. "you" or "your" refers to the Affiliate.
3. "our website" refers to the High Mowing Organic Seeds properties located at http://www.highmowingseeds.com/.
4. "your website" refers to any website, web pages, social media platforms or other online services that you control and will link to our website.
5. "Program" and "Affiliate Program" refer to the High Mowing Organic Seeds Program.
6. "Products" refers to any products sold or distributed by High Mowing Organic Seeds.
7. "Qualifying Purchases" refers to purchases made when all of the following requirements are made:
a. a customer clicks through a special link on your website to our website;
b. during a single session that the customer adds a Product to his/her/their shopping cart and places the order for that Product no later than 30 days following the customer’s initial click-through; and
c. the purchased Product is paid for by the customer; or
8. "Trademarked Terms" refers to High Mowing Organic Seeds registered trademarks. These include “High Mowing Organic Seeds”.
The purpose of this Program is to permit you to advertise Products on your website and to earn advertising commissions for Qualifying Purchases.
In order to apply for enrollment into the High Mowing Organic Seeds Affiliate Program (“the Program”), you must first sign up as an affiliate of ShareASale.com, and you must agree to ShareASale’s Affiliate Service Agreement.
Please allow up to 10 business days for your application to be reviewed. We reserve the right to reject any application; however, we encourage you to contact us if you feel we have made an incorrect decision. Your inclusion of all of your websites that you plan to use in your profile will help us make a better decision.
All potential affiliates must agree to High Mowing Organic Seeds’ terms and conditions described in this agreement. Upon acceptance of all registration requirements and notification to the potential affiliate, this Agreement will become effective and the applicant will become a program Affiliate. Registration requests may be rejected at any time for any reason deemed fit by either ShareASale’s or High Mowing Organic Seeds’ sole discretion.
This Agreement does not create an exclusive agreement between you and High Mowing Organic Seeds. You are free to work with similar affiliate program providers in any category. This agreement imposes no restrictions on us to work with any individual or company we may choose.
Upon acceptance into the Program, you will be eligible to receive an affiliate commission (the "Commission") for the successful completion of Qualifying Purchases. A "Qualifying Purchase" occurs when a customer (not you) clicks-through the link (supplied by High Mowing Organic Seeds to you) to the High Mowing Organic Seeds website and successfully completes a purchase for which High Mowing Organic Seeds receives and retains payment.
To be a Qualifying Purchase, the sale must be completed by a customer that is physically located in the United States. The current rates of Commission shall be set forth in the High Mowing Organic Seeds affiliate program located on the ShareASale affiliate website. High Mowing Organic Seeds reserves the right to modify the Commission rate from time to time, at its sole discretion. High Mowing Organic Seeds is responsible for authorizing Commission payments and ShareASale will be solely responsible for fulfilling and transferring all Commission payments in accordance with the ShareASale Agreement. All commission payments will be managed and sent via ShareASale’s payment methods and schedule.
High Mowing Organic Seeds will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to High Mowing Organic Seeds, whether in connection with this Agreement (including any breach hereof by you) or otherwise.
Responsibility for Your Website
You hereby represent and warrant that you will be solely responsible for your website, its operation and maintenance and all data, content and materials that appear on or within them.
High Mowing Organic Seeds will have no liability for any claims, damages, losses, liabilities, fines, penalties, costs and expenses relating to:
a. your website or any data, content or materials that appear on your website;
b. the use, development, design, manufacture, production, advertising, promotion or marketing of your website;
c. your use of any content; and
d. your violation of any term or condition of this Agreement.
Your participating website(s) may not:
1. Infringe on our or anyone else’s intellectual property, publicity, privacy or other rights.
2. Violate or be used to violate any law, rule or regulation.
3. Contain any content that is hateful, tortious, defamatory, slanderous or libelous.
4. Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials.
5. Promote violence, illegal activities, illegal drugs, firearms/weapons, or the use of any foregoing.
6. Promote any activities that may appear to be unsafe, dangerous or unlawful.
7. Communicate messages or images inconsistent with the positive images and goodwill with which High Mowing Organic Seeds wishes to be associated with.
8. Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to or may damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
9. Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of Affiliate commissions from another website.
10. Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to our website, user accounts, or the technology and equipment supporting our website.
11. Violate any of our policies.
Affiliates found in violation of these restrictions will be immediately terminated from the Program with any unpaid commissions forfeited.
Linking to Our Website
Upon acceptance into the Program, links will be made available to you through the Affiliate interface. When linking to our website, you agree:
1. You will only use linking code obtained from the Affiliate interface without manipulation.
2. All domains that use your Affiliate link must be listed in your Affiliate profile, which can be found on the My Settings page in your ShareASale account.
3. Your website will not in any way copy, resemble, or mirror the look and feel of our website. You will also not use any means to create the impression that your website is our website or any part of our website including, without limitation, framing of our website in any manner.
4. You may not engage in cookie stuffing or include pop-ups or false or misleading links on your website. In addition, wherever possible, you will not attempt to mask the referring URL information (i.e. the page from where the click is originating).
5. Your website may not use redirects to bounce a click off a domain from which the click did not originate in order to give the appearance that it came from that domain.
Promoting High Mowing Organic Seeds through a sub-affiliate network is permitted, however you must be completely transparent with regards to where traffic from your sub-affiliates originated. Affiliates and sub-affiliate networks must ensure that all sub-affiliates promoting the High Mowing Organic Seeds program adhere to our program terms and conditions. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as a pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the High Mowing Organic Seeds program.
Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of commission from sales made through any sub-affiliate that does not comply with our program terms.
No Deceptive Practices
If you engage in deceptive practices, such as redirecting links by sending users indirectly to our website via an intermediate site or website and without requiring a user to click on a link or take some other affirmative action on that intermediate site or website, we may at our sole discretion void your current and past commissions or set your commission level to 0%.
Pay per Click Guidelines
When participating in Pay Per Click ("PPC") advertising, you must adhere to our PPC guidelines as follows:
1. You may not bid on any of our Trademarked Terms (which are identified below), including any variations or misspellings thereof, for search, display or content based campaigns on advertising networks, search services, or similar services, including but not limited to Google, Bing, MSN or Yahoo.
2. You may not use our Trademarked Terms in sequence with any other keyword (i.e. High Mowing Organic Seeds Coupons).
3. You may not use our Trademarked Terms in your ad title, ad copy, display name or as the display URL.
4. You may not directly link to our website from any PPC ad or use redirects that yield the same result. Visitors must be directed to an actual page on your website.
5. You may not bid in any manner appearing higher than High Mowing Organic Seeds for any search term in position 1-5 in any auction style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude our Trademarked Terms from your program and we strongly suggest you add our Trademarked Terms as negative keywords. We have a strict no-tolerance policy on PPC trademark bidding. You will forfeit, at minimum, all commissions from the past 30 days and your commission will be set to 0% without warning if you engage in PPC bidding that uses our Trademarked Terms. We reserve the right to add additional terms to our Trademarked Terms at any time, and this Agreement applies to the use of any such additional Trademarked Terms.
If your website promotes coupon codes, you must adhere to our Coupon Guidelines as follows or you will be subject to removal from the Program:
1. You may only advertise coupon codes that are provided to you through the Affiliate Program or our Affiliate Network, (i.e. ShareASale) or that are displayed on our public website.
2. You may only display coupons in their entirety with the full offer, valid expiration date and code.
3. You may not post any information about how to work around the terms and conditions of a coupon/promotion (e.g., describing how existing customers can qualify as a first time customer to benefit from an offer to first time customers only).
4. You may not use any technology or technique that conceals or obscures the coupon code such that only an Affiliate click will reveal the code(s).
5. You may not advertise coupon codes obtained from our non-Affiliate advertising materials, e-mail marketing materials, paid search campaigns, or any other marketing or campaign.
6. You may not give the appearance that any offer requires clicking from your website in order to redeem. For example, if orders over $100 on our website have a 10% discount, you may not turn this into an offer that implies that the customer must click from your website to get this deal.
Compliance with Laws
In connection with your participation in the Program, you agree to comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions and other requirements of any governmental authority that has jurisdiction over you, including without limitation laws (federal, state or otherwise) that govern marketing e-mail, telephone calls and text messages.
You shall include a disclosure statement within any and all pages/posts where affiliate links for our Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received product for free from High Mowing Organic Seeds for review, this also must be clearly stated in your disclosure.
FTC's ADVERTISING DISCLOSURE REQUIREMENTS
· Disclosures must be located as close as possible to the claims.
· Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g., the disclosure should be visible before the jump).
· Pop-up disclosures are prohibited.
You shall comply with all FTC guidance and regulations related to advertising disclosure requirements. For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Guidelines at www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf; and the FTC's Endorsement Guidelines at business.ftc.gov/advertising-and-marketing/endorsements.
Your use of any of our Trademarked Terms as part of the domain or sub-domain for your website is strictly prohibited e.g., highmowingseeds.website.com or www.highmowingseeds-coupons.com, etc.
Advertising & Publicity
You shall not create, publish, distribute, or print any written or visual material that makes reference to our Program without first submitting that material to us at firstname.lastname@example.org and receiving our prior written consent. If you intend to promote our Program via e-mail campaigns, you must adhere to the following:
1. Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) and any applicable state laws.
2. Comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests.
3. E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of High Mowing Organic Seeds.
4. As noted above, submit e-mail content to us at email@example.com for approval in advance of distribution.
Creatives, Content & Intellectual Property
All creatives and content made available to Affiliates through this Program are the property of High Mowing Organic Seeds. The terms “content” and “creatives” include but are not limited to images, product names, product numbers, intellectual property, trade names, trademarks, slogans, banners, graphics, designs and links. Affiliates may only use High Mowing Organic Seeds’ creatives and content as specified in this document, or through the Program. If the Affiliate has any concern about the appropriate use of any content, creatives or intellectual property, the Affiliate should contact High Mowing Organic Seeds immediately at firstname.lastname@example.org.
Limited License to Use High Mowing Organic Seeds’ Creatives, Content & Intellectual Property
After meeting all of the requirements for membership into the Program, the Affiliate shall be granted a limited, revocable, non-transferable, non-exclusive license to use in the United States those creatives, content, and intellectual property that High Mowing Organic Seeds specifically provides to the Affiliate under this Agreement.
The Affiliate’s use of the aforementioned shall at all times be subject to High Mowing Organic Seeds’ approval for continued use during the Program as described in this Agreement.
High Mowing Organic Seeds may at any time, at its sole discretion give notice to the Affiliate to cease using the aforementioned intangible property, and with such notice this limited license shall be terminated.
High Mowing Organic Seeds may object to how the Affiliate is presenting or marketing their creatives, content and intellectual property, and at its sole discretion give notice to the Affiliate to cease using the aforementioned intangible property, and with such notice this limited license shall be terminated. If the Affiliate does not revise said usage, High Mowing Organic Seeds may terminate the Agreement, and with such termination the Affiliate’s participation in the Program terminates.
Promotion on Facebook, Instagram, Twitter, and other social media platforms is permitted following these general guidelines:
1. You are allowed to promote offers to your own lists; more specifically, you are welcome to use your Affiliate links on your own Facebook, Instagram, Twitter, etc. pages. For example: You may post, "10% off sale at High Mowing Organic Seeds through Wednesday with code PROMO10."
2. You are prohibited from posting your Affiliate links on High Mowing Organic Seeds Facebook, Instagram, Twitter, etc. company pages in an attempt to turn those links into Affiliate sales.
3. You are prohibited from running advertisements on our social media platforms using the Trademarked Terms.
The Affiliate shall:
1. Actively participate in the Program by accessing and using promotional Links via the ShareASale website.
2. Agree to be solely responsible for all costs and expenses you may incur in connection with your participation in the Program and/or your performance under this Agreement including:
a. the development, operation and maintenance of your website;
b. all materials that appear on your website and the accuracy and appropriateness of such materials;
c. ensuring that any such materials do not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights, are not libelous, defamatory, misleading, false or deceptive or otherwise illegal; and
d. ensuring that your website and your business practices do not violate this Agreement.
3. You agree to keep your application with the ShareASale Affiliate Network updated with current and accurate information (including WHOIS information) and, at all times, list the websites you are using to drive traffic to us. For domain names associated with your site that are registered privately, the domain of your username/email address must match the URL submitted with your application.
4. You agree not to make any representations, either express or implied, or create an appearance or impression, directly or indirectly, that a visitor to your site is visiting our website, that a visitor to our website is visiting your website or that High Mowing Organic Seeds endorses you or your website or your products and services (for example, you are agreeing not to ”frame” any pages or portions of our website).
5. High Mowing Organic Seeds is not obligated to make any representations, warranties or other statements concerning you, your website, your website policies or any of your products or services.
High Mowing Seeds Seed Rack Partner Policy
At this time, High Mowing Seed Rack Partners cannot also be Affiliates. Additionally, if you are an Affiliate and would like to become a Seed Rack Partner, we do not offer commissions to Seed Rack Partners. Instead, High Mowing Seed Rack Partners enjoy their own benefits through our Seed Rack program.
Operations Outside the United States
If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries.
Reversal & Communication Policy
We reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and program violations as outlined in this Agreement.
Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be connected to a violation of this Agreement, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy.
1. Your responses are intentionally vague, not forthcoming or are found to be untrue.
2. You are not responsive to our requests within a reasonable time period and after multiple attempts to contact you using the information listed in your network profile.
3. You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above are applicable, we reserve the absolute right to reverse orders, set your commission to 0%, suspend or terminate you from the Program for the period or orders in question. We know that many violations are a result of automated processes; however, it is required that each Affiliate monitor and pro-actively resolve any problems and adhere to our Program rules.
Notification of termination of your participation in our Program will be sent electronic means, which may include an email to the then email address currently associated with your Affiliate account.
Relationship of Parties
As an Affiliate, you are serving as an independent contractor, and nothing in this Agreement or the Affiliate Program in general creates an agency, franchise, partnership, sales representative or employment relationship between you and High Mowing Organic Seeds. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement that will reasonably contradict anything in this section.
Modification or Replacement of the Affiliate Program
High Mowing Organic Seeds reserves the right to modify or replace the Program at any time, including by providing a change notice, a revised Agreement, or revised documentation of the Program.
High Mowing Organic Seeds may, from time to time and at any time modify or replace this Agreement. You agree that the High Mowing Organic Seeds has the right to modify or replace this Agreement or revise any of its terms. You further agree that the replacement or all modifications to this Agreement are in full force and effect immediately upon posting on our website at www.highmowingseeds.com, and that modifications or replacements will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or replacement of this Agreement.
If we modify or replace the terms of this Agreement, we will let you know via electronic means, which may include an email to the then email address currently associated with your Affiliate account. If you don't agree to the modification or replacement, you can choose to terminate this Agreement by notifying High Mowing Organic Seeds at email@example.com.
a. To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
b. You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement.
Your participation in the Program shall begin upon your acceptance as an Affiliate by High Mowing Organic Seeds and shall end when terminated by either party. Either party may terminate such status at any time, with or without cause.
Upon termination, all licenses granted to you pursuant to the Program shall cease and you shall use best efforts to immediately remove all codes and links, references on your website regarding High Mowing Organic Seeds, and cease any and all use of promotional materials, trademarks or any other trade or service marks, trade names or any other items received through or used in connection with such Program.
Upon the termination of your participation in the Program for any reason, you will be entitled to receive Commissions only on eligible purchases that occurred prior to such termination. High Mowing Organic Seeds reserves the right to terminate the Program at any time upon notice to you.
If we terminate your participation in the Program, we will let you know via electronic means, which may include an emailed notice to the then email address currently associated with your Affiliate account. Termination will be effective as of the date of the notice. You can choose to terminate your participation in the Program by notifying High Mowing Organic Seeds at firstname.lastname@example.org.
Limitation of Liability
YOU AGREE THAT HIGH MOWING ORGANIC SEEDS AND ITS AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE, PROFITS, GOODWILL, USE OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, THE DOCUMENTATION, OUR WEBSITE, OR OUR SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES; FURTHER, TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR AGGREGATE MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
You agree to defend, indemnify, and hold harmless us and our affiliates, managers, officers, employees, agents, partners, and licensors from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from any activity arising in connection with your use of our website or service offerings or that constitutes your breach of this Agreement. We shall provide notice to you promptly of any such claim, suit, or proceeding.
THE PROGRAM, OUR WEBSITE, ANY PRODUCTS AND SERVICES OFFERED ON OUR WEBSITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, HIGHMOWINGSEEDS.COM DOMAIN NAME, OUR AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE TRADEMARKED TERMS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS" AND "AS AVAILABLE." NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PRODUCTS OR SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, THIS AGREEMENT, PROGRAM CONTENT, OPERATIONAL DOCUMENTATION, OR OUR WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR MODIFICATION OF THE PROGRAM, THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
Arbitration, Class Waiver, and Waiver of Jury
You and High Mowing Organic Seeds mutually agree to resolve any justiciable disputes between you and High Mowing Organic Seeds, including any disputes involving your use of the Services, exclusively through final and binding arbitration before a single arbitrator instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include:
1. the name and address of the party seeking arbitration,
2. a statement of the legal and factual basis of the claim, and
3. a description of the remedy sought. Any demand for arbitration by you must be delivered to High Mowing Organic Seeds, 76 Quarry Rd, Wolcott, VT 05680, Attn: Legal Department.
You and High Mowing Organic Seeds mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action ("Class Action Waiver"). Notwithstanding any other clause contained in this Agreement or the JAMS Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Any arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures ("JAMS Rules"), except as follows:
· The arbitration shall be heard by one arbitrator selected in accordance with the JAMS Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute.
· The parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 25 miles of where you are located.
· Unless applicable law provides otherwise, as determined by the arbitrator, the parties agree that each party will pay their own fees and costs.
· The arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
· Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration.
· The arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
· The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law.
· Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration may be rendered ineffectual.
Regardless of any other terms herein, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
The JAMS Rules may be found at www.jamsadr.com or by searching for "JAMS Comprehensive Arbitration Rules and Procedures" using a service such as www.google.com or www.bing.com.
Other than the arbitration agreement provided herein, this Agreement shall be construed and governed by the laws of the State of Vermont, without regard to principles of conflicts of laws. To the extent that any lawsuit is permitted under this Agreement, the parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this Agreement shall be brought solely in the state courts of Vermont, if such court has subject matter jurisdiction. Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our intellectual property and proprietary rights are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
Any information that you are exposed to by virtue of your participation in the Program, which information is not available to the general public, shall be considered to be "Confidential Information." You may not disclose any Confidential Information to any person or entity, except where compelled by law, unless you obtain prior written consent for such disclosure from High Mowing Organic Seeds. You shall not use any Confidential Information except to the extent necessary to fulfill the purposes of this Agreement.
IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
HEADINGS OF PARTS AND SUB-PARTS UNDER THIS AGREEMENT ARE FOR CONVENIENCE AND ORGANIZATION ONLY. HEADINGS SHALL NOT AFFECT THE MEANING OF ANY PROVISIONS OF THIS AGREEMENT.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT BY US SHALL BE DEEMED A FURTHER OR CONTINUING WAIVER OF SUCH PROVISION OR ANY OTHER PROVISION, AND OUR FAILURE TO ASSERT ANY RIGHT OR PROVISION UNDER THIS AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF SUCH RIGHT OR PROVISION.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN YOU AND HIGH MOWING ORGANIC SEEDS WITH RESPECT TO THE SUBJECT MATTER HEREIN AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL AGREEMENTS, DISCUSSIONS OR REPRESENTATIONS BETWEEN US.
ANY NOTICE, REQUEST, DEMAND, CONSENT OR OTHER COMMUNICATION REQUIRED OR PERMITTED UNDER THIS AGREEMENT OF THE AFFILIATE SHALL BE SENT TO THE MERCHANT AT THE FOLLOWING ADDRESS:
MAIL: High Mowing Organic Seeds, 76 Quarry Rd, Wolcott, VT 05680, ATTN: Affiliate Program