TERMS AND CONDITIONS OF SEED SALES
A condition of being a wholesale customer is acceptance of these Terms and Conditions. By placing an order for seed with Seeds by Design or True Leaf Market (“Seller”) the buyer of the seed (“Buyer”) agrees to these Terms and Conditions of Seed Sales (“Terms and Conditions”). These Terms and Conditions shall not affect any rights which the Buyer may have under any applicable laws, to the extent that such rights cannot be varied or excluded by agreement.
- 1. ORDERS:
Buyer shall place all orders for seed in writing, by email, facsimile, letter or directly on the Seller’s website, www.TrueLeafMarket.com
These Terms and Conditions apply to all seed orders accepted by Seller. All quotations for seed prior to acceptance are subject to crop availability. No contract shall exist until an order has been accepted by Seller. In the event of a shortage of the seed ordered by Buyer due to Force Majeure events, as described below, Seller reserves the right to either cancel the order or prorate the order. Buyer agrees that the time for delivery of the seed shall not be of the essence, although Seller will use reasonable efforts to deliver the seed on the date specified by the Buyer. Buyer hereby irrevocably waives all of its rights and remedies, if any, for any losses or damages suffered due to the proration of an order of seed, or delay in delivery of an order of seed.
- 2. PRICES:
All prices for seed are FOB, at Seller’s warehouse, unless otherwise agreed to in writing by Seller. All transportation charges, insurance, and any other charges incurred in connection with the delivery of the seed to Buyer, including sales and excise taxes and export fees, are for the account of Buyer, unless otherwise expressly agreed to in writing by Seller. When placing an order for seed, Buyer shall specify which seed treatments, certificates, specifications or tests are required for the seed order, and Seller shall notify Buyer of the costs for such seed treatments, certificates, specifications or tests, which shall then be provided by Seller to Buyer at Buyer’s sole cost and expense.
- 3. PAYMENT:
Payment for seed shall be due in full on or before the date of shipment unless credit terms are agreed to in writing by Seller prior to the date of sale and listed on the Invoice. Seed orders will not be shipped unless the seed has been paid for, or satisfactory arrangements have been made for payment by Buyer to Seller prior to shipment. In the event that Seller agrees to credit terms, and the seed is not promptly paid for in accordance with those terms, then Seller shall be entitled to late fees at the rate of 2% per month (24% per annum), or the maximum rate permitted by law, whichever is less, plus attorneys’ fees and costs relating to collection of the amount due, whether or not a formal suit is brought by the Seller to collect the amounts due.
- 4. TITLE AND RISK OF LOSS:
Title and risk of loss of the seed shall pass to Buyer upon delivery of the seed to the original carrier or, if Buyer or his agent picks up the seed, upon delivery to the Buyer or his agent, regardless of which of the parties pays the carrier and regardless of which of the parties bears the transportation cost. All sales of Seed are final.
- 5. FORCE MAJEURE:
No liability is assumed by Seller for delay in delivery of seed or failure to deliver seed caused by a Force Majeure event which is beyond the control of the Seller, which delay prevents Seller from filling an order of seed from its normal source of supply.
Force Majeure events shall include by not be limited to, the following: crop failures and shortages, fire, storm, flood, hurricane, tornado, severe hail, action of the elements, earthquake, explosion, total or partial failure of transportation, inability to use business facilities, labor disputes, shortage of labor, materials or supplies, interruption of power or power failures, mechanical breakdowns, war, acts of terrorism, civil or military disturbances, riots, hostilities, or national emergencies, pandemics, natural disasters, orders, actions, or other mandates issued by any local, state or federal agency of government or by military authorities, including but not limited to orders, actions, or other mandates restricting or prohibiting the sale of any seed subject to a seed order, or any other contingencies beyond Seller’s control.
Accepted seed orders are based upon expectations of average crop productions which have not been affected by any Force Majeure event. In the event of a Force Majeure event, Seller shall have the option to either cancel Buyer’s order or to prorate the order.
- 6. NOTICES TO BUYER REGARDING LIMITATION OF WARRANTY AND LIMITATION OF LIABILITY:
PLEASE READ THESE NOTICES BEFORE PLANTING THE SEED
If you do not agree with the below stated Limitation of Warranties and Limitation of Liability, do not plant the seed purchased from Seller, but rather return the seed to Seller within 20 days of purchase for a refund of the purchase price.
LIMITATION OF WARRANTY: Seller warrants that all seed sold has been labeled as required under applicable State and Federal seed laws and that the seed conforms to the label description within recognized tolerances.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE LABEL. BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM OR LOSS RESULTING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, OR NEGLIGENCE (WHICH SHALL NOT EXTEND TO INCIDENTAL OR CONSEQUENTIAL DAMAGES) SHALL BE LIMITED TO REPAYMENT OF THE PURCHASE PRICE FOR THE SEED. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO BIND THE SELLER TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY CONCERNING THE SEED. ANY SUCH AFFIRMATION, REPRESENTATION OR WARRANTY MADE BY AN AGENT, EMPLOYEE OR REPRESENTATIVE OF SELLER ABOUT THE SEED SHALL NOT BE ENFORCEABLE BY BUYER OR ANY OTHER PERSON. Any advice furnished to Buyer or any other person concerning the use of the seed or relating to the production of crops from the seed may not be relied upon by Buyer, and constitutes only suggestions and general information, not representations or warranties. The production of crops from seed is subject to a multitude of variables which cannot be known or controlled by the Seller.
LIMITATION OF LIABILITY: Seller’s sole express warranty to the Buyer is that the seed that Seller sells will conform to those descriptions of said seed that are required to be on the label by applicable State and Federal seed laws within recognized tolerances. SELLER DISCLAIMS AND DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS MADE. THERE ARE NO GUARANTEES OR WARRANTIES THAT THE SEED WILL BE FREE FROM SEED BORNE DISEASES AND LIABILITY FOR SUCH DISEASES IS DISCLAIMED.
BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY LOSS OR DAMAGES ARISING FROM THE USE OF THIS SEED SHALL BE THE REPAYMENT OF THE PURCHASE PRICE OF THE SEED. SELLER AND ITS SALES AGENTS SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES THAT ARISE FROM THE USE OF THE SEED. THIS LIMITATION OF LIABILITY APPLIES TO ALL CLAIMS FOR DAMAGES, INCLUDING CLAIMS BASED UPON NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY.
CLAIMS: Buyer agrees to promptly notify Seller in writing regarding any claims that the seed sold by Seller does not meet the description on the label, and to provide Seller with an opportunity to visually inspect and sample the seed, and any plants or crops derived therefrom, in order to verify any claims made by Buyer. Buyer agrees that all such claims will be presented to Seller within a reasonable amount of time after discovery of any defects alleged by Buyer. In any event, Buyer agrees that the period to present any such claims to Seller shall expire within thirty (30) days after the date of discovery of the alleged defect in the seed. After investigation of a claim that is presented in a timely manner in accordance with the procedures set forth above, and confirmation that the claim is valid, Seller shall provide Buyer with a refund of the purchase price of the seed.
- 7. IMPORTANT NOTICE REGARDING RISKS AND SEED BORNE DISEASES:
Failure of seed to germinate and/or other yield reduction may occur as a result of multiple environmental and agronomic factors, including, without limitation weather conditions, soil conditions, and the use of chemicals and fertilizers. Seeds at times may carry seed borne pathogens. Seller has undertaken reasonable precautions to identify and control seed borne pathogens on the seed it sells. However, such precautions and/or seed treatments cannot assure complete immunity from seed borne pathogens, and under present technology it is impossible to guaranty that any particular seed which is sold by Seller is free from a seed borne pathogen. SELLER OFFERS NO WARRANTY REGARDING SEED BORNE DISEASE, EITHER EXPRESSED OR IMPLIED, AND NONE SHOULD BE ASSUMED FROM ANY LANGUAGE HEREIN, REGARDLESS OF WHETHER OR NOT SPECIAL TREATMENTS ARE APPLIED TO THE SEED TO PREVENT SEED BORNE PATHOGENS. ALL RISKS OF NONPERFORMANCE, REDUCED PERFORMANCE AND/OR CROP DAMAGE DUE TO SEED BORNE PATHOGENS SHALL BE ASSUMED BY BUYER.
- 8. SELLER’S INTELLECTUAL PROPERTY RIGHTS:
Buyer acknowledges that some of the seeds sold by Seller may be proprietary varieties which are protected by utility patents and/or plant variety protection certificates, which have been applied for or issued, as stated on the seed label. In the event that a propriety variety belonging to, or licensed by, Seller is sold to Buyer, then Buyer acknowledges that all strains, lines and varieties thereof are for restricted use only, for the sole purpose of producing crops for human consumption, regardless of whether or not a utility patent or plant variety protection certificate has yet to be issued for the seed. Buyer acknowledges that all intellectual property rights to reproduce or propagate the proprietary variety of seed are for the benefit of, and are the property of, Seller, and Buyer agrees that Buyer will not propagate the proprietary variety of seed, directly or indirectly, except as necessary to produce a crop from the seed. In addition, and without limitation, Buyer agrees that no plants will be dug up and taken from the field as living plants; and Buyer agrees to disc up any plants remaining in the field within thirty (30) days after final harvest of any crops grown from the seed.
Buyer agrees that Seller has the exclusive right, title and interest in and to Seller’s trademarks, trade names and trade dress, and that Buyer is not authorized to use Seller's trademarks, trade names or trade dress in any manner except as expressly authorized in writing by Seller.
- 9. NOTICE: ARBITRATION/CONCILIATION/MEDIATION IS REQUIRED BY SEVERAL STATES:
Under the seed laws of several states, arbitration, mediation or conciliation is required as a prerequisite to maintaining a legal action based upon the failure of seed to which this notice is attached to produce as represented. The consumer shall file a complaint along with the required filing fee (where applicable) with the Designated State Authority within such time as to permit inspection of the crops, plants or trees by the designated agency and the seedman from whom the seed was purchased. A copy of the complaint shall be sent to the seller by certified or registered mail or as otherwise provided by state statute.
- 10. GOVERNING LAW; ATTORNEYS’ FEES AND COST:
These Terms and Conditions shall be construed and enforced in accordance with, and governed by, the laws of the State of Utah. Buyer agrees to submit to the jurisdiction of the courts located in the State of Utah with respect to any legal matter relating to the seed, without regard to any principles concerning conflict of laws. In the event of the filing of any suit relating to the seed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, as determined by the court.
- 11. NOTICES:
Any and all notices or demands relating to the seed by or from either party to the other party shall be in writing. They shall be served either personally, by overnight courier, or by certified or registered mail, with a courtesy copy sent by email.