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Conditions of Sale
TERMS
AND CONDITIONS
- 1. PAYMENT: Buyer will make payment in full within thirty
(30) days of date of plant material invoices and seven (7) days
of date of freight invoices, services
charges will be charged
on overdue accounts at the maximum legal rate or 1.1120~ per month
(18% per Annum), whichever is less.
- 2. WARRANTIES AND SELLERS & LIABILITY: Seller warrants
that its plant materials are of the varieties true to name as
described in this acknowledgment.
Upon proof to seller's satisfaction
that the plant materials delivered to Buyer are not of the varieties
described in the Acknowledgment, Seller, at its discretion,
will
either replace such plant materials or refund the portion of the
original purchase price that relates to such plant materials.
Any claims concerning plant
materials must be submitted by Buyer
in writing to seller within the following periods after receipt
of such plant materials by Buyer:
- A. Within 5 days: Claims for incorrect counts or sizes.
(Subject to the Provisions of Section 3, below.)
- B. Within 5 days: Claims for mortality or variety errors
on containerized or balled and burlaped plants. This warranty
does not apply to plant materials damaged
or injured during shipments
on contracted carriers, or due to Buyer's negligence, improper
care, unreasonable use or abuse. Under no circumstances shall
seller
be liable for any amount greater than the original purchase
price. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
REPLACEMENT
OF THE PURCHASED PLANT MATERIALS E.O.B. AT THE PLACE WHERE SELLER
ORIGINALLY SOLD TO BUYER, OR REFUND
OF THE ORIGINAL PURCHASE PRICE,
AT SELLER'S OPTION IS BUYER'S EXCLUSIVE REMEDY UNDER THIS WARRANTY,
AND IN NO CASE SHALL
SELLER BE RESPONSIBLE FOR THE CONSEQUENTIAL
OR SPECIAL DAMAGES, REGARDLESS OF WHETHER THE PROBLEMS OR DEFECTS
ARE
DISCOVERABLE OR LATENT.
- 3. CONTINGENCIES: This order acknowledgment and Seller's
liability hereunder is subject to Seller's crop growing conditions
and is made with the
understanding that orders may be voided or
modified by Seller should Seller be unable to perform any terms
or conditions of this Acknowledgment due to the
following: Any
and all weather conditions including but not limited to drought,
flood, fire, frost and hail; errors in count; labor problems;
crop failures; pestilence;
war; embargo; government regulations
or restriction of any and all kind; expropriation or condemnation
of property by governmental authority; interruption of or
delay
in transportation; accidents; explosions; inability to obtain
material and supplies; excess of demand for equipment over available
supply; and any other
causes within or beyond the Seller's control.
Seller reserves the right without notice to Buyer to substitute
the closest possible size at Seller's current
corresponding price
of plant material in stock if Seller is unable to furnish size
ordered by Buyer.
- 4. RISK OF LOSS OR DAMAGE: All risk of loss or damage
to the plant materials shall be on Buyers from and after delivery
to a carrier or to Buyer, whichever
delivery occurs first, and
such loss shall not relieve Buyer from any obligations.
- 5. TAXES: Prices listed on this Acknowledgment do not
include federal, state or local taxes, which shall be paid by
the Buyer.
- 6. DEFAULT AND REMEDIES: Time is of the essence of this
Acknowledgment. If Buyer becomes insolvent, fails to make any
payment within the time required,
or fails to perform any other
obligation imposed by this Acknowledgment or by law, Buyer shall
be in default and Seller may immediately enforce any and all
remedies
provided by law.
- 7. COST AND ATTORNEY FEES: In the event suit or action
is instituted to enforce any of the terms of this Acknowledgment,
the prevailing party shall be
entitled to recover from the other
party such sums as the court may adjudge reasonable as attorney's
fees at trial or on appeal of such suit or action, in
addition
to all other sums provided by law.
- 8. ASSIGNMENT: The right and benefits of Buyer are personal
to it and may not be transferred or assigned, voluntarily, or
involuntarily, without the prior
written consent of Seller. Subject
to the limitation, this Acknowledgment shall be binding upon and
insure to the benefit of the parties, their successors
and assigns.
- 9. ENTIRE AGREEMENT: Buyer agrees that this Acknowledgment
is the complete and exclusive statement of the agreement between
the parties, which
supersedes all proposals or prior agreement,
oral or written, and all other communications between the parties
relation to the subject matter of this
Acknowledgment. This Acknowledgment
can be altered, however, by different or additional terms contained
in a subsequent Acknowledgment,
invoice or change order issued
by Seller.
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