ACCEPTANCE OF TERMS
These terms and conditions shall govern orders for plants (merchandise) placed with Seller. All negotiations with sales representatives or other agents of Seller are merged herein. No modification of these terms and conditions shall be effective unless in writing signed by Seller. Placement of the order shall constitute Purchaser’s acceptance of these terms and conditions. All orders are subject to acceptance by Seller at our offices in West Chicago, Illinois.
LIMITATION OF WARRANTY
Seller warrants, to the extent required by law, that merchandise conforms to the description appearing in Seller’s catalog and on container labels, within recognized tolerances. SELLER MAKES NO OTHER OR FURTHER WARRANTY, EXPRESS OR IMPLIED. ALL OTHER OR FURTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. Certain merchandise may be separately warranted by the manufacturer. Seller does not adopt or ratify any manufacturer warranties, express or implied, and Seller shall have no liability thereunder. Seller does not adopt or ratify any manufacturer warranties, express or implied, made by Purchaser upon resale of the merchandise, and Seller shall have no liability thereunder.
LIMITATION OF REMEDY
PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE REFUND OF THE PURCHASE PRICE. SELLER’S LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE AMOUNT OF THE PURCHASE PRICE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
ANY CLAIM WHICH PURCHASER MAY HAVE AGAINST SELLER ARISING OUT OF OR RELATING TO THE SALE OF THE MERCHANDISE SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, SAID ARBITRATION TO BE VENUED IN COOK OR DUPAGE COUNTIES, ILLINOIS. The laws of several states require arbitration, conciliation or mediation of disputes involving allegedly defective plants before legal action may be taken. Purchaser should contact the State Department Of Agriculture for information.
Such laws typically require that a complaint be filed with the State Department of Agriculture in time to permit inspection of the crops or plants. If such a complaint is filed, a copy must be sent to Seller by registered or certified mail.
GOVERNING LAW, JURISDICTION & VENUE
The laws of the State of Illinois, including but not limited to the Uniform Commercial Code as adopted therein, shall govern all matters arising out of or relating to Seller’s sale of merchandise. ANY DISPUTE NOT SUBJECT TO ARBITRATION AND ANY ACTION TO ENFORCE AN ARBITRATION AWARD ARISING OUT OF OR RELATING TO THE SALE OF MERCHANDISE HEREUNDER SHALL BE MAINTAINED IN THE STATE OR FEDERAL COURTS LOCATED IN DUPAGE OR COOK COUNTIES, ILLINOIS, AND PURCHASER SUBMITS TO THE JURISDICTION OF AND VENUE IN SAID COURTS.
By accepting merchandise, Purchaser agrees to defend Seller, to hold it harmless and indemnify it from and against any claim or loss asserted by any or all transferees of such merchandise or users of the products of such merchandise who are not notified by Purchaser in writing of Limitation of Warranty, Limitation of Remedy, Mandatory Arbitration, Governing Law Jurisdiction and Venue, and Notice Regarding Seed-Borne Diseases in language substantially equivalent to that contained in these Terms & Conditions of Sale.
The minimum quantity for each order is 500 unrooted cuttings. Total orders less than 2,000 unrooted cuttings will be subject to a minimum charge of $30.
All prices are subject to change without notice. The price in effect at time of shipment will prevail. Prices do not include installation; Seller takes no responsibility, and shall have no liability for installation.
Payment is due in invoiced currency and in accordance with the terms specified on invoice. In the event of default in the payment of any amount when due, and in addition to all other rights and remedies available to Seller, SELLER SHALL BE ENTITLED TO COLLECT A LATE CHARGE OF 2% PER MONTH (24% PER YEAR) OR THE MAXIMUM RATE ALLOWED BY LAW, WHICHEVER IS LESS, ON ALL AMOUNTS PAST DUE FROM THE DATE DUE UNTIL THE DATE PAID. A FEE OF $25.00 WILL BE CHARGED FOR ANY RETURNED CHECK, DECLINED EFT TRANSACTION OR DECLINED BANKCARD TRANSACTION.
FREIGHT & HANDLING CHARGES, INSPECTION, DAMAGED GOODS
The freight and handling charge on Purchaser’s invoice covers shipment of the merchandise to Purchaser’s destination, and replacement or credit for damaged merchandise if the steps listed here are followed. PURCHASER WILL NOT REFUSE OR RETURN GOODS, OR THE RIGHT TO FILE A CLAIM IS LOST AND PURCHASER WILL STILL BE LIABLE FOR THE MATERIAL AND THE FREIGHT. When Purchaser receives shipment: 1) Count all cartons. 2) Inspect all cartons for external damage. 3) Check for open or resealed cartons. 4) Note any damages, shortages, open or resealed cartons on the delivery receipt; the carrier’s representative must also sign the receipt. 5) Open all boxes immediately and inspect for damage due to weather related issues such as scorched, frozen or broken plants; material shortages; etc. NOTIFY SELLER IMMEDIATELY IF A SHIPMENT IS DAMAGED. Call the Ball Traffic Department at 800 879-BALL to report the damage and receive details on what is needed to file a claim. Damaged unrooted and rooted cuttings will be replaced by Ball Seed.
Cancellations for unrooted cuttings must be received at least thirty (30) days prior to scheduled ship date. Cancellations for liners or seed-raised plugs must be received prior to stick or sow date.
NOTICE & RETURN
No returns will be accepted. Seller shall have no liability for any defect unless notice is given promptly, not to exceed five (5) days after receipt of delivery of merchandise. Notice of defect should be addressed to Ball at 800 879-BALL.
DELAYS, SHORTAGES & SUBSTITUTIONS
Seller shall not be responsible for delays in delivery or for losses resulting from such delays. Seller reserves the right to make partial shipment. In the event of shortages, Seller may substitute such other, similar merchandise as is available.
Varieties described herein may be covered by the Flowering-Only License Agreement, United States Plant Patents, Utility Patents, and/or Plant Breeders Rights. These varieties may not be reproduced without authorization. The breeder or authorized representative has the right to inspect customers’ nurseries during normal business hours to assess compliance with the restrictions on use of protected varieties.
Trademarks are the property of Ball Horticultural Company, unless otherwise indicated.
THE COMPANY’S PRODUCTS MAY NOT BE SOLD, DIVERTED, TRANSFERRED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, TO ANY INDIVIDUAL, ENTITY, OR DESTINATION THAT IS SUBJECT TO UNITED STATES OR UNITED NATIONS SANCTIONS PROGRAMS OR EMBARGOS (INCLUDING BUT NOT LIMITED TO OFAC SANCTIONS PROGRAMS AND THOSE LISTED ON OFAC’S “SPECIALLY DESIGNATED NATIONALS” LIST) WITHOUT AN APPROPRIATE EXPORT LICENSE.
ALL SHIPMENTS MUST BE SHIPPED IN COMPLIANCE WITH THE FOREIGN CORRUPT PRACTICES ACT AND THE UK BRIBERY ACT.