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TERMS & CONDITIONS

 

Mutual Arbitration Agreement Between You and HE SHOU TANG/HE SHOU TANG TCM Healthcare CO

(PRINTABLE VERSION)
We agree—both you (and your family members and beneficiaries) and us, meaning the HE SHOU TANG affiliate marketing program, as well as HE SHOU TANG TCM Healthcare CO (the company that owns HE SHOU TANG), together with our directors, officers, employees, affiliates, agents, successors or assigns)—that (1) any mutual claim, dispute or controversy, or (2) any claim by either of us against the other on any matter, or (3) any claim arising from or related to the Independent Contractor Agreement: Terms and Conditions for Participation in the HE SHOU TANG Affiliate Program (hereinafter, "I.C. Agreement," and into which this Mutual Arbitration Agreement Between You and HE SHOU TANG/HE SHOU TANG TCM Healthcare CO is incorporated by reference, which latter agreement shall hereinafter be referred to as the "Mutual Arbitration Agreement"), or (4) any claim arising from the relationships that result from the Mutual Arbitration Agreement, no matter against whom made, or (5) any dispute over the applicability of this Mutual Arbitration Agreement, or (6) any dispute about the validity of part of or the entire Mutual Arbitration Agreement (and hereinafter any or all types of claims, disputes, or controversies shall be referred to as a "Dispute" or "Disputes"), SHALL BE RESOLVED EXCLUSIVELY BY NEUTRAL, BINDING ARBITRATION BY THE NATIONAL ARBITRATION FORUM, under its Code of Procedure in effect at the time that HE SHOU TANG last initiated transmission to you of notice of amendments, if any, to the I.C. Agreement and/or the Mutual Arbitration Agreement, pursuant to the pertinent notification clauses prescribed in the I.C. Agreement or at the time that the Dispute is arbitrated (whichever is determined, in the sole discretion of the arbitrator, to be appropriate), except as specified otherwise in this Mutual Arbitration Agreement.

Arbitration hearings will take place in a location as convenient for you as possible subject to the approval of the National Arbitration Forum. To get more information on how to file a claim and obtain relevant forms, please contact the National Arbitration Forum at http://www.adrforum.com, write to them at P.O. Box 50191, Minneapolis, Minnesota 55405, call them toll-free at 1-800-474-2371, or fax them at 1-952-345-1160. The identity of the arbitrator shall be determined solely by the National Arbitration Forum, so as to eliminate any undue influence that you or HE SHOU TANG or HE SHOU TANG TCM Healthcare CO can apply to the detriment of the other regarding the choice of arbitrator at the National Arbitration Forum.

In the event that, for any reason, the National Arbitration Forum is unable or unwilling to arbitrate the Dispute in binding fashion, you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO agree that the American Arbitration Association shall arbitrate the Dispute. To contact the American Arbitration Association (at www.adr.org), write to them at The Paramount Building, 1633 Broadway, Tenth Floor, New York, NY 10019, call them at 1-212-484-3266, or fax them at 1-212-307-4387. The identity of the arbitrator shall be determined solely by the National Arbitration Forum, so as to eliminate any undue influence that you or HE SHOU TANG or HE SHOU TANG TCM Healthcare CO can apply to the detriment of the other regarding the choice of arbitrator at the American Arbitration Association.

In the event that, for any reason, the American Arbitration Association is also unable or unwilling to arbitrate the Dispute in binding fashion, you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO agree to endeavor in good faith to secure the services of another neutral arbitration body and that, under no circumstances, shall the Dispute be entertained by a court of law.This Mutual Arbitration Agreement is effective pursuant to a transaction involving interstate commerce, and shall be governed by and interpreted under the Federal Arbitration Act. The Act is codified as law at Title 9 of the U.S. Code, sections 1-16, and as amended. You may review the provisions of the Act at the website of the Office of Law Revision Counsel of the United States House of Representatives, at
http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+3+2++(the)%20%20A
.

We both agree that the arbitration shall be conducted before one neutral arbitrator, who shall be conducted by the National Arbitration Forum (or by a default arbitration body as set forth above). Any award of the arbitrator may be entered as a judgment in a United States court having jurisdiction as determined in the sole discretion of the arbitrator. In the event that a court having jurisdiction finds any portion of this Mutual Arbitration Agreement unenforceable, that portion shall not be effective, and the remainder of the Mutual Arbitration Agreement shall remain effective.

ALL PARTIES TO THIS MUTUAL ARBITRATION AGREEMENT--YOU AND HE SHOU TANG AND HE SHOU TANG TCM Healthcare CO—UNDERSTAND THAT YOU AND WE WOULD HAVE HAD THE RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE OUR CASE, BUT YOU AND WE CHOOSE TO HAVE ANY DISPUTES DECIDED THROUGH ARBITRATION.

We agree that THE ARBITRATION SHALL BE LIMITED SOLELY TO THE DISPUTE BETWEEN YOU, on the one hand, AND HE SHOU TANG AND HE SHOU TANG TCM Healthcare CO, on the other, meaning that the arbitration, or any portion of it, will not be consolidated with any other arbitration, and will not be conducted on a class-wide or class action basis. In other words, WE ARE ALL WAIVING THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH OTHER PERSONS OR CORPORATIONS WHO MAY HAVE THE SAME OR SIMILAR CLAIMS AGAINST YOU OR AGAINST HE SHOU TANG AND HE SHOU TANG TCM Healthcare CO. Further, WE ALL WAIVE THE RIGHT TO ARBITRATE ANY CLAIM AS A REPRESENTATIVE OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, AND WE ALL WAIVE THE RIGHT TO PARTICIPATE IN ANY MANNER IN A CLASS ACTION EITHER IN A COURT OF LAW OR IN ARBITRATION AGAINST EACH OTHER.

THE TERMS OF THIS ARBITRATION AGREEMENT MAY CHANGE FROM TIME TO TIME. THE TERMS THAT SHALL BE APPLICABLE TO DISPUTES BETWEEN YOU AND HE SHOU TANG AND HE SHOU TANG TCM Healthcare CO SHALL BE THE TERMS SET FORTH HERE AT THE TIME THAT HE SHOU TANG LAST INITIATED TRANSMISSION TO YOU OF NOTICE OF AMENDMENTS, IF ANY, TO THE I.C. AGREEMENT AND/OR THE MUTUAL ARBITRATION AGREEMENT, PURSUANT TO THE PERTINENT NOTIFICATION CLAUSES PRESCRIBED IN THE I.C. AGREEMENT.

YOU MAY OPT OUT OF THIS MUTUAL ARBITRATION AGREEMENT AT ANY TIME, BUT OPTING OUT WILL AUTOMATICALLY AND IMMEDIATELY TERMINATE YOUR PARTICIPATION IN THE HE SHOU TANG AFFILIATE PROGRAM. TO OPT OUT, YOU MUST SEND AN E-MAIL TO: ARBITRATIONDEPARTMENT@DMCONTACT.COM AND CLEARLY INDICATE THAT YOU ARE OPTING OUT. You will receive an email confirmation of your opt-out within 3 business days. You must retain this email confirmation of your opt-out for your records. If you do not receive an email confirmation of your opt-out within 3 business days, please contact us via the following telephone number: North America toll free (800)893-5741 or International (international calling code) +1 (800)553-8037. If you are calling outside regular business hours (8:30am - 5:00 pm Pacific Time) you will need to leave a message that includes your name and telephone number. This procedure is intended to protect your rights as well as ours.

In the event that, for whatever reason, any portion of a dispute between you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO is to be determined by a state court, we both agree that any questions arising from or relating to this Mutual Arbitration Agreement, its interpretation, its breach, its termination, its validity, and the relationships that result from this Mutual Arbitration Agreement, or any questions arising from or relating to the marketing, advertising, sales, or any related purchase of products from HE SHOU TANG and HE SHOU TANG TCM Healthcare CO, SHALL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.

If you reside outside of the United States, any claims we may have against each other shall be brought before an arbitrator of the National Arbitration Association in New York City, and all the other terms and conditions of this Mutual Arbitration Agreement shall apply to you as if you were a resident of New York City. In the event that, for any reason, the National Arbitration Forum is unable or unwilling to arbitrate the Dispute in binding fashion, then the default mechanism as set forth above for determining the arbitration body to resolve the Dispute in binding fashion shall apply.

Each party shall pay for its own costs and attorneys' fees, if any, and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO will endeavor to secure pro bono assistance for an indigent claimant. However, if a party prevails on a statutory claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.

HE SHOU TANG and HE SHOU TANG TCM Healthcare CO recognize that the size of a claim against it may be relatively minor compared to the expense in bringing and maintaining an arbitration action, and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO recognize that, by this Mutual Arbitration Agreement, we have both waived our rights to proceed against each other on a class action basis, whether in litigation or arbitration. Although this Mutual Arbitration Agreement is reciprocal in every respect, we understand that unequal bargaining power may exist between you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO in making this agreement. Therefore, in light of our mutual waiver of the opportunity and right to litigate disputes through a court and to have a judge or jury decide the case, and in light of our mutual waiver of the opportunity and right to proceed against each other in class-wide litigation or class-wide arbitration, HE SHOU TANG and HE SHOU TANG TCM Healthcare CO would be happy to try to first settle our dispute via mediation before proceeding to binding arbitration.

If you wish to try mediation before binding arbitration, then you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO hereby agree that any and every Dispute shall be entertained by a mediator at the National Arbitration Forum (using the contact information provided above for the National Arbitration Association) strictly between us within thirty (30) days of your asking us for mediation of the Dispute. Any such mediation shall be held in the location designated by the National Arbitration Forum, and shall be conducted according to the mediation rules of the National Arbitration Forum in effect at the time that HE SHOU TANG last initiated transmission to you of notice of amendments, if any, to the I.C. Agreement and/or the Mutual Arbitration Agreement, pursuant to the pertinent notification clauses prescribed in the I.C. Agreement.You can review the mediation procedures on the website of the Forum at http://www.adrforum.com, or by asking the Forum for a copy using the Forum's contact information provided above. In the event that, for any reason, the National Arbitration Forum is unable or unwilling to mediate the Dispute, then the default mechanism as set forth above for determining the arbitration body to resolve the Dispute in binding fashion shall apply, mutatis mutandis, for determining the mediation body, i.e., shall apply giving due consideration to the difference in application between mediation and arbitration.

You and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO hereby further agree that all of us shall endeavor to resolve our mediated dispute in good faith. If, 120 days after the commencement of mediation, we are not successful in resolving the Dispute(s), then you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO hereby agree that the matter shall be resolved solely by binding arbitration strictly between you and HE SHOU TANG and HE SHOU TANG TCM Healthcare CO according to the terms, conditions, and procedures outlined in this Mutual Arbitration Agreement.

No waiver of any breach of this Mutual Arbitration Agreement shall be considered as a waiver of any subsequent breach of the same provision or other provision.

If any provision of this Mutual Arbitration Agreement is held by any competent legal, arbitral, or regulatory authority with jurisdiction to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.

HE SHOU TANG and HE SHOU TANG TCM Healthcare CO shall have no liability to you for any delay in performance to the extent that such delay is due to any event outside our reasonable control including but not limited to acts of God, war, flood, fire, labor disputes, sub-contractor delays, strikes, lock outs, riots, civil commotion, malicious damage, explosion, governmental action and any other similar events. If HE SHOU TANG and HE SHOU TANG TCM Healthcare CO are affected by any such event, then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.

All third party rights are excluded and no third party shall have any right to enforce this Mutual Arbitration Agreement.

The Mutual Arbitration Agreement, as posted here when HE SHOU TANG last initiated transmission to you of notice of amendments, if any, to the I.C. Agreement and/or the Mutual Arbitration Agreement, pursuant to the pertinent notification clauses prescribed in the I.C. Agreement, supersedes all prior or contemporaneous communications or proposals, whether eHE SHOU TANGtronic, oral or written, between you and HE SHOU TANG and/or HE SHOU TANG TCM Healthcare CO, whether with respect to the HE SHOU TANG affiliate program, the I.C. Agreement, the Mutual Arbitration Agreement, or any other matter.

To return to the I.C. Agreement, please go here.

If you have already read the entire I.C. Agreement, and wish join the HE SHOU TANG affiliate program now, please go here.

 
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