SILVER FERN FARMS TERMS OF USE

Table of Contents

 

 

INTRODUCTION

These Terms of Use apply to all Sites. By using any of the Sites, you acknowledge that you have read, understood and accepted these Terms of Use. All orders placed by you for any of our Products through our Sites are subject to these Terms of Use.

From time to time we may update or revise these Terms of Use. Your continued use of the Sites after the Terms of Use have been changed, indicates your acceptance of those changes.

By accessing, browsing, and using any of the Sites, you represent and affirm that you are of legal age to enter into these Terms of Use, or, if you are not, that you have obtained parental or guardian consent to enter into these Terms of Use. If you violate or do not agree to these Terms of Use, then your access to and use of the Sites is treated as unauthorized. Additional terms and conditions apply to some services offered on our Sites (e.g. gift cards, promotions, etc). Those terms and conditions can be found where the relevant service is offered on the Sites and are incorporated into these Terms of Use by reference.

1. DEFINITIONS AND INTERPRETATIONS

1.1 Defined Terms: In these Terms of Use:

"Content" means merchandise information, product descriptions, reviews, comments, messages, reviews, communications, feedback, submissions, suggestions, questions, and other information, data, content, and materials, including page headers, images, text, illustrations, formats, logos, hashtags, designs, icons, photographs, software programs, music clips or downloads, video clips, and written and other materials.

"Ideas" means ideas, concepts, feedback, and know-how that you make available in connection with the Sites.

"Materials" means Content that Silver Fern Farms make available on or through the Sites.

"Privacy Policy" means our privacy policy published on the Sites as may be amended from time to time which can be accessed here.

"Silver Fern Farms" means Silver Fern Farms USA Direct LLC and Silver Fern Farms USA LLC and including any subsidiaries and affiliates of Silver Fern Farms USA Direct LLC and Silver Fern Farms USA LLC.

“Silver Fern Farms Entities” mean Silver Fern Farms and its affiliates, suppliers, vendors, contractors, licensors; directors, officers, employees, and agents.

“Sites” means:

• Silver Fern Farms USA website at https://www.silverfernfarms.com/us/;
• Silver Fern Farms On-line Shopping website; us.silverfernfarms.com;
• Social media sites operated by or for Silver Fern Farms; and
• Silver Fern Farms Apps and other Silver Fern Farms mobile applications.
• “Silver Fern Farm App,” means the official Silver Fern Farms App and other mobile applications that we may launch from time to time.

“Terms of Use” means these terms of use and all other terms and policies posted by Silver Fern Farms on the Sites, including any updates to these Terms of Use and those terms and policies.

“we,” “us” and “our” refers to Silver Fern Farms.

“you” or “your” means any user of any Site.

1.2 Interpretation:

• Headings used in these Terms of Use are for reference purposes only and in no way define or limit the scope of the section.
• Any use of the term “including” is to be construed as if followed by the phrase “without limitation”.

2. YOUR USE OF OUR SITES

2.1 Your Information: If you register on the Sites, you warrant and represent that the information you provide on or through our Sites is accurate, current and complete and that and you will promptly update this information if it changes.

2.2 Passwords and Security: You are solely responsible for maintaining the confidentiality and security of your account including username, password, and PIN. We are not responsible for any losses arising out of the unauthorized use of your account. You agree that we do not have any responsibility if you lose or share access to your device. We may rely on the authority of anyone accessing your account or using your password and in no event will we be held liable to you for any liabilities or damage resulting from or arising out of:

• any of our action or inaction under this provision;
• any compromise of the confidentiality of your account or password; and
• any unauthorized access to your account or use of your password.

If the confidentiality of your account or password is compromised in any manner, please inform us immediately.

2.3 Site Security: We reserve the right to take any and all action as we deem necessary or reasonable to maintain the security of the Sites and your account, including terminating your account, changing your password or requesting information to authorize transactions on your account. While we take commercially reasonable steps to protect your account and the Sites, we cannot protect your information outside of the Sites (for example, in the case of communication via e-mail).

2.4 Consent to Electronic Communication: When you visit the Sites, chat with us or send an email to us, you are communicating with us electronically. You consent to receiving communications from us electronically and agree that we may communicate with you by chat, email, or by posting a notice on the Sites. You acknowledge that by requesting information by email, you are authorizing us to transmit it to you from time to time and store it in an unencrypted form and manner. When we communicate with you via unencrypted email from time to time, the communication is not secure, is not stored securely, and the information contained may be viewed by others, unless otherwise provided by law. To learn more about the rights you have to opt-out of certain communications, please see our Privacy Policy.

2.5 Consent to Receiving Messages and Direct Marketing: When you visit our Sites, your name and contact details will be added to our customer database. Where required by law, you consent to receive SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone sending messages on our behalf to the specific number(s) you have provided to us with information or questions about your account and/or orders and/or marketing offers. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Any information you provide to us will be collected, held and used in accordance with our Privacy Policy. If you provide us with your mobile number, we may send you a text message and/or a push notification (if you have opted in to receive push notifications) when your order has been delivered or is ready for pick-up. We may send you messages about promotions available at our on-line store. We may also send you messages asking you if you wish to respond to market research and surveys. All electronic communications from us (except for communications confirming your order or otherwise about your order and your ongoing use of our Site(s)) will contain an unsubscribe function if you no longer want to receive messages from us. If you unsubscribe, we may not be able to provide you with some of our services that are available. Silver Fern Farms, or anyone sending messages on our behalf, may use such means of communication described in this section even if you will incur costs to receive such messages, text messages, e-mails or other means, which may occur.

2.6 Children: You must be at least 18 years of age to access or use the Sites. This website is designed for and intended for use by adults. If you are under 18, you may use the Sites only with involvement of a parent or guardian. If you are a parent or legal guardian, you must monitor and supervise the use of this site by children, minors and others under your care. You agree to be responsible for their use of the Sites.

2.7 Prohibited Acts: You must not:

• violate any law, rule, or regulation, or these Terms of Use;
• make available any Content through or in connection with the Sites that is or may be in violation of the content guidelines set forth in Section 2.8(b) (Prohibited Content) below;
• use the Sites for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful;
• interfere with or disrupt the operation of the Sites or the systems, servers, or networks used to make the Sites available, including by hacking or defacing any portion of the Sites or introducing virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;
• reproduce, modify, adapt, translate, create derivative works of, sell, license, distribute, or otherwise exploit any portion of (or any use of) the Sites except as expressly authorized in these Terms of Use, without our prior written permission;
• reverse engineer, decompile, or disassemble any portion of the Sites;
• use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather any Materials or reproduce or circumvent the navigational structure or presentation of the Sites, without our prior written permission.

2.8 Content and Ideas

• Submitting Content and Ideas: We welcome your Ideas and Contents. Please submit them in English. You agree that:
• you will be responsible for the legality, the accuracy, the appropriateness, the originality, and your rights in any such Content and Ideas;
• we are not obliged to maintain any Content or Idea in confidence or pay any compensation for any Content or Idea or respond to any Content or Idea; and
• you remain solely responsible and liable for your Ideas and Contents.
• You represent and warrant that:

• you have the authority to grant to us the rights in such Content and Ideas; and
• the use of such Content and Ideas will not violate any of these Terms of Use.

• Prohibited Content: You must not submit any Content that:
• is false, fraudulent, inaccurate, or misleading;
• contains your full name(s), or any other confidential personally identifiable information of yourself or others;
• violates any local, state, federal, or international laws or is otherwise tortious;
• is protected by or would infringe on the rights of others (including Silver Fern Farms), including any patent, copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner;
• is obscene, indecent, pornographic, or otherwise objectionable;
• is derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by us in our sole discretion;
• victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability;
• is violent or threatening, or promotes violence against, or actions that are threatening to, any individual or group;
• contains advertisements, solicitations, or spam links to other web sites or individuals, without our prior written permission;
• contains or relates to chain letters or pyramid schemes;
• impersonates another business, person, or entity, including Silver Fern Farms, its related entities, employees, and agents;
• violates any policy posted on the Sites; or
• is intended to cause harm, damage, disable, or otherwise interfere with the Sites or our partners.

 

• Our Rights to Use Your Ideas: You grant (or warrant that the owner of the Content and Ideas has granted) to us a royalty-free, perpetual, irrevocable, worldwide, unrestricted, non-exclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display (publicly or otherwise) and otherwise exploit any Content that you make available, in any media or medium, and in any form, format, or forum now known or hereafter developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other obligations on our part or of our assigns, and you hereby waive all moral rights, or agree, represent and warrant that all moral rights in the Contents and Ideals (including without limitation the rights of paternity, attribution and integrity) are irrevocably waived, in our favor. You further agree that we may:

• use any Ideas for any purpose;
• sublicense our rights in Content and Ideas through multiple tiers of sublicenses; and

You agree to grant to us the right to use any name associated with any Content or Idea that you make available to us, although we have no obligation to exercise such right, or to otherwise provide any attribution for any Content or Idea.

• Monitoring and Enforcement: We may:
• monitor, evaluate, and analyze any Content, and any use of and access to the Sites, including to determine compliance with these Terms of Use; 
• edit, move, delete, or refuse to make available any Content made available through, the Sites, for any reason, including violation of these Terms of Use, whether for legal or other reasons. Despite this right, you are solely responsible for any Content you make available, and you agree to indemnify us for all claims resulting from any Content you make available;
• access at any time and use internally for any lawful purpose information stored on our systems, including the content of any emails or other communications. We may disclose such information to any third-party including law enforcement agencies to protect our rights or property in response to legal process, or in a good faith belief that such disclosure is justified or required in an emergency situation; or
• may investigate any reported violation of our policies or complaints and take any appropriate action that we deem appropriate.

We reserve has the right to take any action we deem appropriate, including taking action to issue a warning, suspend or terminate your access and use of the Sites and related services at any time, and block, remove or edit any communication and materials that we believe, in our sole discretion, may violate applicable law, these Terms of Use or a third-party's rights. We take no responsibility and assume no liability for any Content posted or uploaded by you or any third-party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.

3. MATERIALS AVAILABLE ON THE SITES

We and our suppliers and licensors may make available various Materials. The Materials are for educational and informational purposes only, and errors may appear from time to time. Before you act in reliance on any Materials, you should confirm any facts that are important to your decision.

Silver Fern Farms Entities make no warranty as to the reliability, accuracy, timeliness, usefulness, or completeness of any Materials and assume no responsibility for any consequence relating directly or indirectly to any action or inaction you take based on the Materials.

4. THIRD-PARTY SITES

References on our Sites to any names, marks, products, or services of third parties, or links to third-party sites or information, are not an endorsement, sponsorship, or recommendation of the third party or its information, products, or services. We will not be responsible for the content of any third-party linked site or any link contained in a linked site, including any third-party social media or mobile app platform with which our Sites operate or otherwise interact, nor are we responsible for the acts or omissions of any operator of any such site or platform. Your use of any such third-party site or platform is at your own risk, and will be governed by such third-party's terms and policies.

5. THIRD-PARTY SOFTWARE & LICENSING NOTICES

The Sites may include certain third-party technologies and open source materials (collectively, “Third-Party Technology”). Your use of such Third-Party Technology is subject to these Terms of Use, as well as well the applicable terms and conditions of such third parties, which is incorporated in these Terms of Use by reference

6. SPECIFIC ON-LINE SHOPPING TERMS

Your use of the on-line purchase service is subject to the following terms:

6.1 Products: Our products for sale are listed on the Sites (“Products”), including the price. Our goal is to provide as accurate information, but product packaging and material may contain more and/or different information than that provided on the Sites. Always read labels, directions, and other information provided with the Product before using or consuming it.

6.2 Changes, Misprints, Errors and Cancellations: Subject to applicable law, we:

• reserve the right to change the Products advertised or offered for sale through the Sites, the prices or specifications of such Products, and any promotional offers and any other Site Materials at any time and from time to time without any notice or liability to you or any other person; and
• do not warrant that the Site Materials (including without limitation product descriptions or photographs) are accurate, complete, reliable, current or error-free; and
• reserve the right to refuse or cancel an order, to terminate or not to process orders (including accepted orders) even after your receipt of an order confirmation or shipping notice from us for any reason including where:
• the price or other material information on the Sites is inaccurate or contains an error;
• fraud is suspected or detected; or
• we have detected abuse of our policies.

If we do not process an order or cancel such order for any reason, we will have no further obligations to you except to advise you that the order has not been processed or has been cancelled (as the case may be) and we will not charge you (if payment has not been made) or will apply credit to the payment type used in the order (if we have received payment from you).

Please note that some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties. Therefore, some of the provisions of this section may not apply to you.

6.3 Pricing Information; Availability:  All prices shown on the Site are exclusive of tax. Where required by law, taxes applicable to the Product you are purchasing will be added to your order. You will see estimated taxes and fees when you place the order. In the rare event the amount of tax charged on your order is not correct, you may request a refund in accordance with the state laws applicable to your purchase. In addition to the price of goods, in the absence of a free delivery offer, a delivery charge as shown at checkout, will also be payable by you.

We will do what we reasonably can to fulfil you orders but we will not be liable to you or any person if we are unable to, or decline, to supply a Product for any reason whatsoever. We cannot confirm the price or availability of an item until after your order is placed. Pricing or availability errors may occur on the Sites. Products on special or promotion are subject to availability while stocks last. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product.

To the extent permitted by law, we:

• do not guarantee that Products advertised or offered for sale on the Sites will be available when ordered or thereafter;
• reserve the right to limit quantities sold or made available for sale;
• reserve the right to limit the range of Products available to certain areas; or
• reserve the right to prohibit sales to wholesaler or retailers for reselling for purposes of these Terms of Use, “reselling” means purchasing or intending to purchase any Product from us for the purpose of engaging in a commercial sale of the same Product(s) to a third-party.

6.4 Placing Orders: Please note that there may be a minimum order value, which may change from time to time. To place your orders, find the Products that you wish to order using the Search bar and then add your item(s) to the cart. Review your cart by selecting the Cart. From your cart you can edit item quantities, remove items, or save them for a future purchase. When you are satisfied with the items in your cart, select Check Out. Select a saved shipping address or add a new address. Select or enter your preferred payment method. Confirm payment to complete your order. Once you have placed an order for the Products through on-line services, we will send you an order acknowledgment by email setting out what you have ordered. This is not an order confirmation or acceptance from us.

Due to shipment and delivery times, there are limitations on when changes or cancellations to orders can be made. These limitations will be provided when you place your order.

6.5 Payment :By confirming your purchase at the end of the checkout process, you agree to accept and pay for the Products, as well as all shipping and handling charges (if any) and applicable taxes. You must pay us for the Products purchased by credit or debit card. We do not accept EFTPOS or similar, cash, cheque, or any other form of payment. You represent and warrant that:

• you have the right to use any credit card or other means of payment that you provide to us; and
• all billing information you provide to us is true, accurate and complete.

Any agreement between you and the issuer of your credit card, debit card, or other form of payment will continue to govern your use of such payment method on the Sites. You agree that we not a party to any such agreement, nor are we responsible for the content, accuracy, or unavailability of any method used for payment.

By providing payment card information to us, you authorize us to store and use the card as a payment method for purchases made through your account, including on our affiliated sites and properties which you access via your Silverfernfarms.com account credentials.

You acknowledge and agree that providing any untruthful or inaccurate information is a breach of these Terms of Use and may result in cancellation of your order. Prior to accepting an order, we may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any purchase. If your order is cancelled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will attempt to contact you if all or any portion of your order is cancelled or if additional information is required to accept your order. We may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.


6.6 Delivery:  We will deliver the Products sold to you to the address designated by you so long as such address is complete and complies with the shipping restrictions contained on the Sites (“Designated Address”), and drop them off at the Delivery Point. For the purposes of these Terms of Use, (“Delivery Point”) means an outside area of the Designated Address, such as your front door, or any particular outside area specified by you on a particular Product order form. If the Designated Address is a multi-level building, the Delivery Point shall be located on the ground floor of such building. If the courier brings the Products inside the building of the Designated Address, beyond the Delivery Point, at your request, or at the request of any other person accepting delivery of the Products on your behalf, whether on any particular occasion or pursuant to a standing instruction or request, neither we nor any Silver Fern Farm Entity will be liable for any direct or indirect damage or loss suffered by you or any third party in doing so. We shall be entitled to assume that any person accepting delivery of the Products is authorized to do so on your behalf.

We do not deliver Products purchased from our Sites to addresses outside the United States. Some Products also have restricted delivery within the United States. We aim to deliver your goods within the delivery window specified in the Site (if any), but do not guarantee that goods will be delivered by a certain date. We will not be liable for delivering the goods outside of the requested delivery slot or failing to deliver the Product within the estimated time specified at the time of your order. Estimated delivery times are determined based on the method of shipping chosen when Products are purchased and the destination of the Products.

6.7 Risk and Title: All transactions are made pursuant to a shipping contract. Consequently, title to, and the related risk on, the Products purchased by you pass to you upon delivery of the Products to the carrier.

6.8 On-line Shopping Policies: Below are our online shopping policies.

• Gift Cards: Your purchase and use of gift cards is subject to the following terms and conditions:
• Gift cards must not be used in any manner that is contrary to these terms and conditions or that is unlawful, misleading, deceptive, unfair or otherwise harmful to consumers.
• If you are giving a gift card to another person, you should ensure that the recipient is aware of these terms and conditions that apply to the gift card.
• Gift cards can be purchased online from the website.
• There may be a delay between when you pay for a gift card and when the gift card is Activated by our point of sale system. ("Activate") means the initial loading of value onto a gift card. During the period of delay, the gift card cannot be used to make purchases or transaction enquiries.
• Gift cards can be redeemed for the Products offered for sale on-line to the value loaded onto your gift card. Value redeemed is deducted from the card balance.
• Gift cards are not returnable, refundable nor can they be, redeemed for cash or used to obtain cash except in states where required by law. Resale of gift cards is strictly prohibited.
• Where the price of the Products being purchased with the gift card exceeds the card balance, you must pay the amount exceeding the card balance by an alternative payment method in accordance with the payment terms set out section 6.5.
• Gift cards have an expiry date and may be redeemed at any time before the expiry date.
• Once your gift card has reached a nil balance it cannot be re-activated.
• The redemption of gift cards is restricted to the purchase of standard retail quantities of Products and may be used to redeem Products on specials or promotion.
• After a gift card has been activated, you cannot subsequently add value to it.
• You must treat your gift card like cash. If your gift card is damaged, please contact the us immediately. However, we have no obligation to replace or refund value for lost, stolen or damaged gift cards.
• We reserve the right to place a stop on your gift card if you report that your gift card has been lost, stolen or damaged; or we believe (or reasonably suspect) that you have used (or will use) your gift card contrary to these Terms of Use or any applicable laws.
• The risk of loss and title to any gift cards passes to you upon our electronic transmission to the you or delivery to the carrier, whichever is applicable.
• You are responsible for the use and safety of your gift cards, and are liable for all transactions made on your gift card.

• Product Quality: Our Products are of a premium quality, sustainably sourced, produced and processed. If a Product was delivered to you in a damaged or spoiled condition (we may request photographic evidence of this), you must contact us within 48 hours of delivery of the Product in order to make a claim under this clause. At your choice, we will issue a voucher to you for the amount equivalent to price that you have paid for the Product or replace your purchase. We may give you a refund in certain circumstances but any refund will be at our sole discretion. There is no return policy for the Products due to health, safety and hygiene reasons once unwrapped.

7 PROMOTION

Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Sites may be governed by rules that are separate from these Terms of Use. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms of Use, the Promotion rules will govern.

8 PROMOTION CODES

From time to time we may issue promotion codes (“Promotion Codes”) as part of our Promotion campaign. The following terms apply the use of a Promotion Code:

• Our Promotion Codes are valid only for the duration set out in the Promotion Codes.
• Promotion Code values may be adjusted if the total discount value is greater than the value of your order.
• Your use of a Promotion Code indicates your agreement to be bound by these Terms of Use and any terms on the promotion offer itself. We will only honor a Promotion Code if it is used in accordance with all applicable terms.
• Promotion Codes issued by us are, and will remain, our property and are not transferable, cannot be resold, and have no cash value unless otherwise stated. By using a Promotion Code, you warrant that you are the duly authorized original recipient of it.
• Promotion Codes can be added to your order by entering the code at checkout. Use of a Promotion Code may be subject to you providing proof of entitlement to use the Promotion Code.
• We reserve the right to withdraw or cancel any Promotion Code at any time, either as a whole, or for specific goods or delivery areas. If this happens, then the Promotion Codes may not be used for any orders placed after the date of withdrawal or cancellation. We reserve the right to reject or cancel the use of a Promotion Code where we suspect fraud or misuse. You will have no claim against us in connection with such rejection or cancellation of a Promotion Code. We will not be liable to you for any financial loss arising out of the cancellation or withdrawal of any Promotion Code or any failure or inability of a customer to use a Promotion Code for any reason.
• Promotional codes are void where prohibited by law.
• We reserve the right in our discretion to impose conditions on the offering of any promotional code.

9 INTELLECTUAL PROPERTY

9.1 Ownership: The Sites and all Materials, and all copyrights, trademarks, trade dress, and other intellectual property rights there (collectively, the “IP”) are owned or controlled by or licensed to us, and are protected by U.S. and international trademark, copyright, and other intellectual property laws. Silver Fern Farms, Silverfernfarms.com names and logos, and all other graphics, logos, page headers, button icons, scripts, and service names included in or made available through any of the Sites are the intellectual property of Silver Fern Farms in the U.S. and other countries. All other marks are the property of their respective companies.

9.2 Restrictions on Use of Sites and Materials: The Sites and Materials may be used only as a personal shopping resource. Subject to your compliance with these Terms of Use, and solely for so long as we permit you to use the Sites, you may access, view, download, and print the Materials for your personal, non-commercial use only provided that you do not:

• Modify or alter the Materials in any way; or
• not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell, or participate in any sale of or exploit in any way, in whole or in part, any of the Materials or the Sites.

At all times we retain ownership of the Sites and all copyright, trademark, or other proprietary designations contained in all Materials. The title or interest in the Sites or any Materials is not transferred to you by your use of the Sites or your accessing, viewing, downloading, or printing of the Materials.

9.3 Use of Silver Fern Farms Apps: Subject to your compliance with these Terms of Use, and solely for so long as we permit you to use the Silver Fern Farms Apps, we grant you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the Silver Fern Farms Apps on a mobile device that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of these Terms of Use, you must immediately cease using, and remove, the Silver Fern Farms Apps from your mobile device.

10 PRIVACY

You acknowledge that we may collect, use, and transfer your information in accordance with our Privacy Policy which is available here.

11 DISCLAIMER AND WARRANTIES

11.1 Disclaimer: We provide access to the Sites, and all Contents, Materials, products, services, functionality, and other items included on or otherwise made available to you through the Sites, on an “as is” and “as available” basis without representations or warranties of any kind, either express or implied. To the fullest extent permissible by applicable law, we and Silver Fern Farms Entities disclaim all warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement with respect to the Sites and Materials, Content, services and Product on the Sites.


11.2 No representations/warranties:

We do represent or warrant that:

• The Materials are accurate, complete, reliable, current, or error-free. We are not responsible for typographical errors or omissions relating to pricing, text or photography; and
• the Sites or their server(s) are free of viruses or other harmful components.

11.3 Risk: You acknowledge and agree that, to the fullest extent provided by applicable law, your use of the Sites is at your sole risk. Accordingly, neither we nor any of the Silver Fern Farms Entities will be responsible for any loss or damage to your property or data that results from any materials you access or download from the Sites.

This disclaimer constitutes an essential part of these Terms of Use. Some states in the United States do not allow the disclaimer of implied terms in contracts with consumers. Therefore, some or all of the disclaimers in this section may not apply to you.

12 LIABILITY

12.1 Exclusion: You acknowledge and agree that, to the fullest extent provided by applicable law:

• Neither we nor Silver Fern Farms Entities will be liable to you or to any other person under any circumstances in law or equity, whether in tort, contract, or otherwise, for any indirect, special, incidental, or consequential losses or damages of any nature arising out of or in connection with the use of or inability to use the Sites, even if we or the Silver Fern Farms Entities have been advised of or should have known of the possibility of such damages.
• This exclusion applies to any damages or injury arising from any failure of performance, error, omission, interruption, deletion, defects, delay in operation or transmission, lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, computer failure or malfunction, computer viruses, file corruption, communication failure, network or system outage, theft, destruction, unauthorized access to, alteration of, loss of use of any record or data, and any other tangible or intangible loss.

You specifically acknowledge and agree that, to the fullest extent provided by applicable law, neither we nor Silver Fern Farms Entities will be liable to you for any defamatory, offensive, or illegal conduct of any seller shopper, or other user of the Sites.

12.2 Limitation: To the fullest extent permitted by applicable law, in no event shall the aggregate of the liability of Silver Fern Farms and Silver Fern Farms Entities, whether in contract, warranty, tort (including but not limited to negligence), product liability, strict liability or other theory arising out of or relating to our operation of the Sites exceed USD100.


13 INDEMNITY

You agree to defend (at our option), indemnify, and hold each of the Silver Fern Farms Entities harmless from and against any and all liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to your misuse of the Sites or any breach by you of these Terms of Use. We reserve the right, at our expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with us if and as requested by us in the defense and settlement of such matter.

14 DISPUTES & ARBITRATION; APPLICABLE LAW; JURISDICTION

14.1 Important Notice: Using or accessing the Sites constitutes your acceptance of this arbitration provision. Please read it carefully as it provides that you and Silver Fern Farms will waive any right to file a lawsuit in court or participate in a class action for matters within the terms of the arbitration provision.


14.2 Arbitration: Except for disputes that qualify for small claims court, all disputes arising out of or related to these Terms of Use or any aspect of the relationship between you and Silver Fern Farms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. You agree that:

• Silver Fern Farms and you are each GIVING UP (WAIVING) THEIR RESPECTIVE RIGHT TO SUE IN COURT AND TO HAVE ANY CONTROVERSY, CLAIM OR DISPUTE HEAR BY A JUDGE OR JURY.
• Silver Fern Farms and you agree to arbitrate as part of an agreement made in interstate commerce and is governed by the Federal Arbitration Act (“FAA”), U.S.C. §§ 1-6, and that on questions of the construction, validity, enforcement, or interpretation of the agreement to arbitrate, the FAA shall control.
• Silver Fern Farms and you agree to arbitrate, on an individual basis, any controversy, claim or dispute arising out of or in any way related to these Terms of Use, including but not limited to claims based on contract, tort, negligence, statutory or regulatory provisions. It is expressly intended that Silver Fern Farms shall have the ability to enforce this arbitration agreement. Silver Fern Farms and you agree that the arbitrator may not consolidate or join more than one individual or entity’s claims, and may not otherwise preside over any form of a representative, collective, class, or consolidated proceeding. If any portion of this class waiver provision is held invalid or unenforceable, it shall not be severed, and the entire agreement to arbitration shall be unenforceable.
• The mutual promise by you and Silver Fern Farms to arbitrate any and all disputes, and to do on an individual basis, rather than to litigate before the courts or other bodies, provides the mutual consideration for this agreement to arbitrate.
• Either party may exercise the right to arbitrate by providing the other party with written notice of any and all claims forming the basis of such right in sufficient detail to inform the other party of the substance of such claims, and a demand to arbitrate those claims. In no event shall the request for arbitration be made after the date when the institution of legal or equitable proceedings based on such claims would be barred by the applicable statute of limitations.
• Unless you and Silver Fern Farms otherwise agree, the arbitration will be conducted in the county where you reside by a single neutral arbitrator and in accordance with Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate. The JAMS Rules, including instructions for bringing arbitration, are available on the JAMS website here.The Minimum Standards are available here. If the parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms of Use and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms of Use, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms of Use will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.

 

• In the event of any conflict between this agreement to arbitrate and the rules governing arbitration, the terms of this agreement shall control.
• The parties are entitled to representation by an attorney or other representative of their choosing, and at their own costs. The parties agree to abide by and perform any award rendered by the arbitrator; provided, however, that the arbitrator shall not have the authority to award punitive or exemplary damages or to issue injunctive or other equitable relief. The arbitrator shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. Judgment on the award may be entered in any court having jurisdiction thereof.
• Payment of all filing, administration, and arbitrator fees will be governed by the JAMS rules.

14.3. Rights Preserved: Notwithstanding any of the foregoing, nothing in these Terms of Use affect our right to seek urgent interlocutory and/or injunctive relief against you in the courts.


14.4 Governing Law and Jurisdiction: These Terms of Use will be governed by and construed under the laws of the State of New York (including federal arbitration law), without regard to conflicts of law principles. Subject to section 14.2 and subject further to section 14.3, each party submits to the non-exclusive jurisdiction of the Courts of New York in relation to any dispute connected with these Terms of Use.


15 TERMINATION
Except as otherwise provided by law, we may, at any time without notice to you:

• change, restrict access to, suspend, or discontinue the Sites or any portion of the Sites;
• (notwithstanding any provisions of these Terms of Use, terminate your license to use the Sites, and
• to block or prevent future access to and use of the Sites if you violate any of these Terms of Use.

16 GENERAL


16.1 Force Majeure: If the performance by Silver Fern Farm or a Silver Fern Farms Entity its obligations under these Terms is prevented by reason of "force majeure" Silver Fern Farm or a Silver Fern Farms Entity will be excused from such performance to the extent of such prevention. For the purposes of these Terms of Use, Force Majeure means:

• an event that is beyond the reasonable control of Silver Fern Farm or a Silver Fern Farms Entity; and
•  includes infectious disease, epidemic, pandemic, fire, casualty, accident, act of God, natural disaster, any law, order, proclamation, regulation, demand or requirement of any government or government agency (including lockdowns), strikes, labor disputes, shortage of labor or lack of skilled labor, shortage or unavailability of Products or raw materials, delay in transit, electricity or communications failures, or other causes whatsoever (whether similar to the foregoing or not) beyond the reasonable control of Silver Fern Farm or a Silver Fern Farms Entity.

16.2 Update/Changes to Terms of Use: We may change or update these Terms of Use from time to time by notifying you of such changes by any reasonable means, including by posting a revised Terms of Use through the Sites. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms of Use incorporating such changes or otherwise notified you of such changes. By continuing to use or access any of the Sites after we post any changes, you accept the updated Terms of Use.


16.3 Entire Agreement: These Terms of Use constitute a full agreement between you and Silver Fern Farms and supersede all prior agreements and representations between the parties with respect to the subject matter of these Terms of Use.


16.4 No Partnership, etc: These Terms of Use do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and Silver Fern Farms.

16.5 Severability: If any provision of these Terms of Use is held to be unenforceable for any reason, such provision will be severed only to the extent necessary to make it enforceable and the other terms of these Terms of Use will remain in full force and effect.

16.6 Waiver: Failure on the part of Silver Fern Farms to enforce any of these Terms of Use will not be construed as a waiver or as a waiver of Silver Fern Farms’ right to enforce these Terms of Use at a later date.

16.7 No assignment: You may not assign, transfer, or sublicense any or all of your rights or obligations under these Terms of Use without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under these Terms of Use without restriction.

16.8 Notices:  Notices to you (including notices of changes to this these Terms of Use) may be made via posting to the Sites or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

17 CONTACTING US
If you have any questions or comments, please contact us at service@silverfernfarms.co.nz or by mail at the following address: 283 Princes Street, Dunedin Central, Dunedin 9016, New Zealand. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.