TERMS & CONDITIONS OF SALE
1. GOVERNING LAW AND VENUE: These terms shall be interpreted according to the laws of the State of Pennsylvania. In the event of a dispute regarding the terms of this purchase or in the event of action brought by Adams County Nursery, Inc. to collect the unpaid balance, exclusive jurisdiction thereof shall be in the State of Pennsylvania with venue in Adams County. The prevailing party in such dispute, whether in or out of court, shall be entitled to all reasonable attorney’s fees and expenses incurred in the resolution of such dispute or in collection of the unpaid balance including finance charges.
2. LIMITED WARRANTY: Seller warrants that the plant materials described in this Contract are of the variety and cultivar represented; however, Buyer acknowledges there will be some normal and anticipated levels of genetic instability in the cultivars of some varieties. Seller warrants that the plant materials are free from visible injurious insects and visible plant diseases at the time of delivery. Seller further warrants that the plant materials will be alive at the time of delivery and grow through July 1 of the year of delivery under normal conditions when properly planted and standard horticultural practices are followed.
3. DISCLAIMER OF WARRANTIES: NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND APPLY TO THE PLANT MATERIALS WHICH ARE THE SUBJECT OF THIS AGREEMENT, EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN. ALL PLANT MATERIAL IS SOLD “AS IS” AND “WITH ALL FAULTS“. OTHER THAN THE FOREGOING LIMITED WARRANTY, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BECAUSE THE PRODUCTIVITY OF FRUIT TREES IS AFFECTED BY HORTICULTURAL PRACTICES AND ENVIRONMENTAL INFLUENCES BEYOND THE CONTROL OF THE SELLER, SELLER DISCLAIMS ANY AND ALL WARRANTIES OF PRODUCTIVITY INCLUDING BOTH TONNAGE AND QUALITY. PRIOR EXHIBITION OF A SAMPLE PACKOUT, BLOCK OR ORCHARD SHALL NOT CREATE AN EXPRESS OR IMPLIED WARRANTY THAT THE PLANT MATERIAL BEING SOLD WILL CONFORM TO THE SAMPLE PACKOUT, BLOCK OR ORCHARD. SELLER DISCLAIMS ANY WARRANTY, EXPRESSED OR IMPLIED, THAT THE PLANT MATERIALS ARE FREE FROM NON-VISIBLE PLANT DISEASES, VIRUSES, INSECTS OR OTHER LATENT DEFECTS, BUYER AGREES TO ASSUME THOSE RISKS.
4. CLAIMS: ADAMS COUNTY NURSERY, INC. endeavors to provide nursery stock that is in good growing condition at the time of delivery. We recognize, however, that occasionally a newly planted tree will fail to grow due to circumstances beyond the control of either Buyer or Seller. As we are interested in our customers obtaining a successful first-year planting, we offer the following CLAIMS policy:
4.1 Within three (3) days of delivery: Claims must be filed for visible defects affecting the plant material and/or deviations thereof from the agreed specifications (including shortages and size of plants).
4.2 By July 1 following date of delivery: Claims for failure to grow; Seller shall replace trees (up to 10% of the order) at no cost to Buyer should trees fail to show signs of growth and Seller is notified in writing by July 1 of the year trees are planted. Seller shall have no liability for losses due to Buyer’s negligence, improper care, freezing, unreasonable use or abuse. This replacement policy is subject to availability of stock.
4.3 By September 1 following date of delivery: Claims made for mortality of trees after July 1, but before September 1, trees shall be replaced at one half of the current price subject to availability of stock, provided Buyer notifies Seller in writing by September 1.
4.4 Within three (3) years from the date of delivery: We guarantee that our nursery stock is true-to-name. If any proves to be untrue-to-name, and we are so notified during the first fruiting season, we will refill that part of the order without charge or, at our option, refund that part of the purchase price. Replacement of trees or refund of purchase price shall constitute full settlement.
4.5 LIMITATION OF REMEDIES: SELLER SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ECONOMIC LOSS (INCLUDING LOST PROFITS), GROWING COSTS, INSPECTION, TRANSPORTATION ISSUES, AND OTHER SERVICES AND EXPENSES RELATING TO THE STOCK SOLD. BUYER AGREES THAT RECOVERY OF ANY KIND SHALL NOT EXCEED THE PURCHASE PRICE OF THE SPECIFIED PLANT MATERIAL.
5. RISK OF LOSS OR DAMAGE: Buyer shall be responsible for all risk of loss or damage to the plant material from and after delivery to an independent carrier or Buyer, whichever delivery occurs first, and such loss shall not relieve Buyer from its obligations to seller hereunder.
6. ENTIRE AGREEMENT: In addition to the Terms and Conditions set forth herein, the additional “Statement of Policies” set forth on the official website of Adams County Nursery, Inc. (www.acnursery.com) in effect as of the date of this Contract are incorporated herein by reference as though fully set forth in this document and together with the Terms and Conditions set forth herein comprise the complete and exclusive Agreement of the parties and in combination supersede all prior Agreements, oral or written, and all other communication between the parties specifically including but not limited to advertising claims or representations by sales representatives or tree brokers.
7. PAYMENT: Buyer shall pay the agreed price for the plant material in full within 30 days of the date of Seller’s invoice. A finance charge of 1 ½% per month (annual 18%) will be charged on all accounts not paid within 30 days of invoice date. Orders totaling $250 or less must be paid in full ten days before shipment. Credit card payments over $1,000.00 will be assessed a 3% convenience fee.
8. DEPOSITS: A 25% deposit is required to confirm this order except on orders booked subject to availability or replacement trees confirmed at no charge. If the deposit is not paid by stated date, the nursery reserves the right to cancel this order. Buyer’s deposit will be refunded in full on items we are unable to supply. In the event of cancellation of this order by Buyer, deposits made hereunder shall be returned in full if order is cancelled before November 1st of the year prior to delivery and shall be forfeited as liquidated damages to the Seller if the order is cancelled after November 1st of the year prior to delivery. ON PREBUD CONTRACTS NO CANCELLATIONS ARE ALLOWED.
9. DISCOUNT RATES: Volume discounts outlined for pre-bud contracts shall apply only if payment terms are met.
10. PLANT PATENT AND/OR TRADEMARK: The price of certain trees purchased by Buyer may include a plant patent and/or trademark royalty. In exchange for those royalty payments, Seller grants to Buyer a limited, non-exclusive license to use the tree for the sole purpose of growing, harvesting and selling the crop obtained from the tree. This license does not include the right to asexually propagate the tree in any manner, for any purpose.
11. TAXES/FEES: Fruit trees are subject to a 1% PA Fruit Tree Certification Tax. Packing and shipping will be charged and included in your invoice when applicable. In addition, Buyer shall pay all government inspection and certification fees, if any, for the plant material whether or not listed in this Agreement.
12. TREE SIZE: Size confirmed on orders indicates customer’s preferred size. Substitution of sizes, with a corresponding change in price may be necessary.
13. CONTINGENCIES: The Seller shall be relieved of any obligations under the Contract in the event the Seller is unable to perform due to causes of forces beyond the Seller’s control and/or Acts of God, including but not limited to adverse weather conditions, drought, frost, hail, ice, snow, wind storms, disease, insects, fire, flood, labor shortages, crop failures, inventory errors, chemical damage, war, embargo, government regulations or restrictions, transportation problems, accidents, hurricanes, earthquakes, tornados or acts of terrorism. In the event that the plant materials ordered by the Buyer are not available to the Seller for any reason, the Seller shall provide the Buyer with the option of either substituting another product upon terms and conditions agreeable to both parties or rescinding the Contract. The plant materials unavailability shall not be deemed a breach of this Agreement.
14. SEVERABILITY: If any of the terms or conditions of this Contract are deemed illegal, void or unenforceable for any reason, then that term or condition shall be severed from the Contract. All of the remaining terms and conditions shall remain in full force and effect.