ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON THE BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON THE SELLER UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF THE SELLER.
Terms are payment with cash prior to shipment for first time buyers or unapproved accounts. All approved accounts not paid in full within terms set by the seller will be charged a service charge equal to 1.5% per month (19.56% per annum) of the unpaid balance. If the financial condition of the buyer results in the insecurity of the seller, in its sole and unfettered discretion, as to the ultimate collectability of the purchase price; the seller may, without notice to the buyer, delay or postpone the delivery of products; and the seller, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products. In addition, venue for any actions shall be in British Columbia and the laws of British Columbia shall be applied. In the event of litigation, the losing party shall pay the prevailing party’s attorney fees, court costs and costs of collection.
The seller expressly warrants that the nursery stock it sells complies with the specifications found in the most recent edition of “Canadian Standards for Nursery Stock” published by the Canadian Nursery Landscape Association (CNLA). The standards guide can be purchased through the CNLA at 1-888-446-3499. THE PROVISIONS OF THIS PARAGRAPH REPRESENT THE ONLY WARRANTY OF THE SELLER AND NO OTHER WARRANTY OR CONDITION, STATUTORY OR OTHERWISE, SHALL BE IMPLIED. The buyer’s sole remedy arising out of a breach by the seller of this warranty shall be, subject to the limitation of liability below, a refund of the purchase price specifically paid hereunder and shall be conditional upon (1) the buyer proving to the seller’s satisfaction that the product is not true to name or is nonconforming with the CNLA specifications, and (2) the buyer returning such product to the seller in accordance with the seller’s instructions. The seller may, at the seller’s sole option, elect to replace such product without charge in lieu of providing a refund.
Shipping and Claims:
All prices quoted are FOB the seller’s shipping point. Delivery of the goods to the carrier at the seller’s shipping point shall constitute delivery to the buyer and the buyer shall bear all risk of loss or damage in transit. All shortages and/or transit damage must be made in writing on the Invoice/Bill of Lading and clearly noted with the driver’s signature upon the receipt of shipment. All claims of any damage incurred in transit must be made directly to the carrier. All claims of shortages, problems with grade and quality issues must be made with the seller. All claims must be in writing and registered with the seller within 48 hours of delivery. If the buyer shall fail to so notify the seller, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the buyer. No claim will be honored if the goods in question have been mishandled, improperly maintained, sold or otherwise disposed of prior to inspection by the seller.
A non-refundable deposit may be required to reserve orders. The buyer may not cancel this order unless such cancellation is expressly agreed to in writing by the seller. In such event, the seller will advise the buyer of the total charge, if any, for such cancellation and the buyer agrees to pay such charges. Failure of the buyer to take delivery of the order in its entirety within 10 days of the indicated shipping date will result in loss of the deposit. Furthermore, the buyer will be responsible for any losses suffered by the seller as a result of said failure. All orders are acknowledged based upon estimates of stock in the field. The seller reserves the right to cancel a portion or all the order should losses occur in our production due to any cause including but not limited to crop failure, inclement weather, flood, fire, strikes and errors in count.
The seller’s failure to strictly enforce any term or condition of this order or to exercise any right arising hereunder shall not constitute a waiver of the seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies the seller may have at law or in equity. Any waiver of a default by the buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.
If any provision of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for the convenience only; they form no part of the terms and conditions and shall not affect their interpretation.
This agreement shall be binding upon, more to the benefit of, and be enforceable by, parties hereto, and their respective heirs, personal representatives, successors and assigns.