True Blue and the purchaser named on the Acknowledgement or Invoice agree that all terms and conditions set forth herein shall constitute an agreement between the parties (the Agreement), with respect to the plants to be provided by True Blue to the purchaser. This agreement shall be binding upon purchaser whether or not signed by the purchaser or purchaser’s agent unless written notice of objection to the contents of this Agreement are given to True Blue within 10 days after the date the Agreement is received by purchaser. True Blue shall not be bound by any additional or different terms unless such additional or different terms are reduced to writing and signed by an authorized representative of True Blue. The Agreement is for the benefit of True Blue and purchaser and not the benefit of any other party. Prior course of dealing and verbal agreements not reduced to writing regardless of when made, shall not modify any of the terms of the Agreement. The Agreement may be terminated by True Blue or purchaser at any time by written notice of termination delivered to the other party. Notwithstanding the foregoing, a notice of termination shall not terminate the Agreement with respect to any plants previously shipped. Notwithstanding the foregoing, True Blue shall have the right to stop shipment at any time purchaser is in default in any obligations to True Blue and to withhold performance until such defaults have been remedied to True Blue’s satisfaction.
Warranty
True Blue warrants that all plants sold by True Blue are as described in the invoice. True Blue will replace, at its expense, any plants not meeting such description or, at True Blue’s option, refund any portion of the purchase price paid provided that purchaser notifies True Blue of such nonconformity in writing within ten days of delivery.
What Is Not Covered by This Warranty
All nursery stock carries a State Department of Agriculture certificate, indicating that the plants have been inspected and are visibly free from injurious insects and plant diseases. True Blue cannot assure detection of non-visible plant diseases, viruses or defects. Because growth of nursery stock is determined to a large extent by the care it receives from the planter and grower due to conditions beyond True Blue’s control, including, but not limited to, soil, weather, purchaser’s negligence and improper use of chemicals and fertilizers, True Blue cannot and does not warrant or guarantee growth or fruit production.
TRUE BLUE MAKES NO EXPRESS OR IMPLIED WARRANTIES CONCERNING THE PLANTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR SUITABILITY FOR ANY PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY
SET FORTH ABOVE.
Limitations of Remedies:
IN NO CASE SHALL TRUE BLUE BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES SUCH AS LOST PROFITS, LOSS OF USE OF THE PLANTS, COST OF LOST FRUIT OR INJURY TO ANY OTHER PROPERTY INCLUDING CLAIMS ARISING FROM LATENT DEFECTS IN PURCHASED ITEMS. UNDER NO CIRCUMSTANCE SHALL TRUE BLUE BE LIABLE FOR ANY AMOUNT GREATER THAN THE ORIGINAL PURCHASE PRICE.
Contingencies
Plant availability is subject to crop conditions and/or errors in count. Furthermore, the parties understand and agree that Acknowledgements shall be void in the event injury, disease or any other cause beyond True Blue’s control damages the plants.
Delivery
All sales are F.O.B. True Blue’s authorized dock. True Blue is not responsible for loss, damage, delay, or any other event while the product is in transit. Risk of loss is on purchaser from the time of delivery of the product to the contracted carrier. In the event any product is damaged in transit True Blue shall bear no responsibility and purchaser must deal directly with the contracted carrier.
Payment Terms
Purchaser agrees to pay True Blue the stated price for the plants. Purchaser is to make payment in full on or before delivery unless prior credit arrangements are made. All credit arrangements must be approved by True Blue’s credit manager at least thirty days in advance of shipment in order for credit terms to apply. Any sums not paid when due shall be subject to a late payment penalty of one percent (1%) of the unpaid balance for each calendar month and any portion of a calendar month during which payment is delinquent. Any taxes, franchise fees or other government charges or assessments imposed by Federal, State or local authorities, whether in the form of sales tax or otherwise as a result of the Plants shall be added to the contract price and purchaser agrees to pay such sums as part of the price.
Deposits
For all regular orders to commercial growers placed one year in advance of shipment, a 25% deposit is due in October. For all regular orders to commercial growers placed two years in advance, an initial 10% deposit is due in October of the first year, and an additional 15% is due in October the year before shipment. For all custom grown orders, a minimum deposit of 25% is required. If deposits are not received within 30 days of issuance of written Acknowledgements, orders may be canceled without further notice to purchaser. Deposits may be refundable for regular orders that are cancelled less a 20% reselling fee providing the plants can be resold in accordance with True Blue’s standard prices, terms and conditions. This determination will be made by True Blue at the end of each delivery year
in June. Orders that are custom grown and subsequently canceled are not subject to a deposit refund.
Restrictions
Due to current restrictions we are unable to ship to California and Arizona.
Applicable Law, Venue, Type of Action
Florida law shall apply to this Agreement except for Florida’s conflict of law rules. All litigation shall be commenced in either the Pasco County Circuit Court or the Federal District Court in Hudson, Florida. Any arbitration or mediation shall be commenced in Pasco County, Florida. The parties agree that in the event a dispute arises, True Blue shall have the sole right to determine whether litigation, arbitration or mediation will be the type of appropriate dispute resolution (ADR) process used. In the event purchaser fails to allow True Blue to select the type of ADR process, purchaser agrees to convert its action to the type of ADR process desired by True Blue. In the event any litigation, arbitration or mediation is commenced in order to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, court costs and other expenses incurred, as determined by the trial
court, arbitrator, mediator and/or appellate court as the case may be. The prevailing party shall also be entitled to recover any reasonable attorney’s fees, costs and/or expenses incurred in order to enforce or collect any judgment previously rendered.
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