Simmons Foods Farmer Assist Terms of Use

Effective: August 3, 2020

1. Contractual Relationship

These Terms of Use (these "Terms") govern your access or use, from any location worldwide, of the applications, websites, content, products, and services (collectively, the "Services," as more fully defined below in Section 3) made available by Simmons Foods, Inc., an Arkansas corporation, together with its affiliates and their officers, directors, employees, representatives, and agents (collectively, "Simmons"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND SIMMONS. In these Terms, the words "including" and "include" mean "including, but not limited to."

By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Simmons may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH SIMMONS ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity, or promotion, and such supplemental terms will be disclosed to you in separate disclosures or in connection with the applicable Service. Any Supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Simmons may amend these Terms from time to time. Amendments will be effective upon posting by Simmons of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by these Terms, as amended. If Simmons changes these Terms after the date you first agreed to these Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Simmons written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process (the name and current contact information for the registered agent in each state), or (b) by email from the email address associated with your Account to: “general.counsel@simfoods.com”. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to these Terms (or to any subsequent changes to these Terms).

2. Arbitration Agreement

By agreeing to these Terms, you agree that you are required to resolve any claim that you may have against Simmons on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Simmons, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Simmons by someone else.

Agreement to Binding Arbitration Between You and Simmons.

You and Simmons agree that any dispute, claim, or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation, or validity thereof, (b) your access to or use of the Services at any time, whether before or after the date you agreed to these Terms, or (c) any other agreement between you and Simmons, will be settled by binding arbitration between you and Simmons, and not in a court of law. There shall be one arbitrator, and the place of arbitration shall be Benton County, Arkansas.

You acknowledge and agree that you and Simmons are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Simmons otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Simmons each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

Rules and Governing Law.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by these terms. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (the "Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in these Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the "FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Arkansas.

Process.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the State of Arkansas and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure.

Unless you and Simmons otherwise agree, the arbitration will be conducted in Siloam Springs, Arkansas. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Simmons submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator's Decision.

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect. The Arbitrator is entitled, but not required, to award attorneys' fees and expenses to the prevailing party in arbitration.

Fees.

Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.

Changes.

Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if Simmons changes this Arbitration Agreement after the date you first agreed to these Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Simmons written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, or (b) by email from the email address associated with your Account to: “general.counsel@simfoods.com”. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Simmons in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to these Terms (or to any subsequent changes to these Terms).

Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

3. The Services

The Services comprise of website and/or mobile applications (each, an "Application") which enable users to receive and monitor relevant information from Simmons, including feed and delivery schedules, and assist with coordinating transportation, logistics, and/or delivery services with Simmons and third party providers ("Third Party Providers"). YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN INFORMATION ON TRANSPORTATION, LOGISTICS AND/OR DELIVERY SERVICES FOR THIRD PARTY PROVIDERS THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH SIMMONS AS A PROVIDER OF TRANSPORTATION, LOGISTICS OR DELIVERY SERVICES OR AS A TRANSPORTATION CARRIER.

License.

Subject to your compliance with these Terms, Simmons grants you a limited, nonexclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information, and related materials that may be made available through the Services. Any rights not expressly granted herein are reserved by Simmons and Simmons's licensors. Restrictions.

You may not: (i) remove any copyright, trademark, or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast, or otherwise exploit the Services except as expressly permitted by Simmons; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror, or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Third Party Services and Content.

The Services may be made available or accessed in connection with third-party services and content (including advertising) that Simmons does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. Simmons does not endorse such third-party services and content and in no event shall Simmons be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., or Microsoft Corporation will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, or Microsoft Windows mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.

Ownership.

The Services and all rights therein are and shall remain the property of Simmons or its licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Simmons's company names, logos, product and service names, trademarks, or services marks or those of Simmons's licensors.

4. Access and Use of the Services

User Accounts.

In order to use most aspects of the Services, you must register for and maintain a user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. If you are managing the Account for a legal entity, you represent and warrant that you have the power and authority to act in such capacity, and agree that Simmons and third parties are entitled to rely conclusively upon such power and authority at all times. Account registration requires you to submit to Simmons certain personal information, such as your name, address, email address, mobile phone number and age, among other information. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Simmons in writing, you may only possess one Account. User Requirements and Conduct.

The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to a Third-Party Provider or any other party. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification. Emails, Text Messaging and Telephone Calls.

You agree that Simmons may contact you by email, text messages and telephone numbers (including by an automatic telephone dialing system) at any of the contact information provided by you or on your behalf in connection with a Simmons account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of these Terms. You also understand that you may opt out of receiving text messages from Simmons at any time, either by texting the word "STOP" using the mobile device that is receiving the messages, or by contacting Simmons. User Provided Content.

Simmons may, in its sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Simmons through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Simmons, you grant Simmons a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Simmons's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents, and releases necessary to grant Simmons the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing, or otherwise making available of such User Content, nor Simmons's use of the User Content as permitted herein will infringe, misappropriate, or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Simmons in its sole discretion, whether or not such material may be protected by law. Simmons may, but shall not be obligated to, review, monitor, or remove User Content, at Simmons's sole discretion and at any time and for any reason, without notice to you. Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Simmons does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

Suspension of Services.

You agree that Simmons may suspend, modify or terminate your Account and refuse any and all current or future use of the Services for any reason. Confidentiality.

You are to keep all information about the Application and the Services confidential. You agree not to disseminate or otherwise provide any material obtained from the Services to any person not authorized by Simmons in writing. Prohibited dissemination includes, but is not limited to, publishing or posting content to other websites or services. You also acknowledge and agree that administrators and others at Simmons will have access to your Account.

DISCLAIMER.

THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." SIMMONS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, SIMMONS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERRORFREE. SIMMONS DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF ANY THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY.

SIMMONS SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SIMMONS, EVEN IF SIMMONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SIMMONS SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF SIMMONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SIMMONS SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND SIMMONS'S REASONABLE CONTROL.

THE SERVICES MAY BE USED BY YOU IN CONNECTION WITH TRANSPORTATION, GOODS, OR LOGISTICS SERVICES BY SIMMONS OR THIRD PARTY PROVIDERS, BUT YOU AGREE THAT SIMMONS HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY IT OR THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS OR IN ANY SEPARATE AGREEMENT.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF SIMMONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON THE CHOICE OF LAW PROVISION SET FORTH BELOW.

Indemnity.

You agree to indemnify and hold Simmons and its affiliates and their officers, directors, employees, representatives, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) use of your User Content by Simmons; or (iv) your violation of the rights of any third party, including Third Party Providers.

5. Other Provisions

Choice of Law.

These Terms are governed by and construed in accordance with the laws of the State of Arkansas, United States of America, without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Arkansas residents to assert claims under Arkansas law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Arkansas law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Arkansas law to you if you do not otherwise reside in Arkansas. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.

Claims of Copyright Infringement.

Claims of copyright infringement should be sent to designated agent for Simmons in the applicable state.

Notice.

Simmons may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Simmons, with such notice deemed given when received by Simmons, at any time by first class mail or pre-paid post to our registered agent for service of process.

General.

You may not assign these Terms without the prior written approval of Simmons, which may be withheld in its sole and absolute discretion. Simmons may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of the equity, business or assets of Simmons; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Simmons or any Third-Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Failure by Simmons to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Simmons in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.