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Terms & Conditions
John Fioroni DBA (GardenSupplies.eCrater.com) 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 GardenSupplies.eCrater.com to the purchaser. This agreement shall be binding upon purchaser whether or not signed by the purchaser or purchaserís agent unless written notice of objection to the contents of this Agreement are given to GardenSupplies.eCrater.com within five business days after the date the Agreement is received by purchaser. GardenSupplies.eCrater.com 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 GardenSupplies.eCrater.com. The Agreement is for the benefit of GardenSupplies.eCrater.com 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 GardenSupplies.eCrater.com 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 ordered or shipped. Notwithstanding the foregoing, GardenSupplies.eCrater.com shall have the right to stop shipment at any time purchaser is in default in any obligations to GardenSupplies.eCrater.com and to withhold performance until such defaults have been remedied to GardenSupplies.eCrater.com's satisfaction.
Warranty
GardenSupplies.eCrater.com warrants that all plants sold by GardenSupplies.eCrater.com are as described in the invoice. GardenSupplies.eCrater.com will replace, at its expense, any plants not meeting such description or, at GardenSupplies.eCrater.com's option, refund any portion of the purchase price paid provided that purchaser notifies GardenSupplies.eCrater.com of such nonconformity in writing within five business days of delivery.
What Is Not Covered by This Warranty
All nursery stock carries a State Department of Agriculture certificate, provided by the actual plant grower, indicating that the plants have been inspected and are visibly free from injurious insects and plant diseases. GardenSupplies.eCrater.com 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 GardenSupplies.eCrater.com's control,
including, but not limited to, soil, weather, purchaserís negligence and improper use of chemicals and fertilizers, GardenSupplies.eCrater.com cannot and does not warrant or guarantee growth or fruit production. GardenSupplies.eCrater.com MAKES NO EXPRESS OR IMPLIED WARRANTIES CONCERNING THE PLANTS AND/OR ITEMS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR SUITABILITY FOR ANY PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET FORTH ABOVE.
Limitations of Remedies:
IN NO CASE SHALL GardenSupplies.eCrater.com 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 GardenSupplies.eCrater.com BE LIABLE FOR ANY AMOUNT GREATER THAN THE ORIGINAL PURCHASE PRICE.
Contingencies
Plant availability is subject to crop conditions and/or errors in count, and may change without notice. Furthermore, the parties understand and agree that Acknowledgements shall be void in the event injury, disease or any other cause beyond GardenSupplies.eCrater.com’s control damages the plants.
Delivery
All sales are F.O.B. GardenSupplies.eCrater.com’s Massachusetts location. GardenSupplies.eCrater.com 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 the product is picked up by the contracted carrier. In the event any product is damaged in transit GardenSupplies.eCrater.com shall bear no responsibility and purchaser must deal directly with the contracted carrier.
Payment Terms
Purchaser agrees to pay GardenSupplies.eCrater.com the stated price for the plants and/or items. Purchaser is to make payment in full on or before delivery unless prior credit arrangements are made. All credit arrangements must be approved by GardenSupplies.eCrater.com 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 and Order Cancellations
All regular orders require full payment, unless otherwise agreed to by GardenSupplies.eCrater.com and written confirmation is given to the buyer. If deposits or payments are not received within 30 days of issuance of written Acknowledgements, orders may be cancelled without further notice to purchaser.
Product Descriptions & Prices
All prices subject to change without notice. If a product’s price is advertised incorrectly, GardenSupplies.iOffer.com reserves the right, at its sole discretion, to offer the product at the correct price or terminate the sale. GardenSupplies.iOffer.com is not responsible for product description and pricing errors and/or omissions, and is not required to update the website or other forms of advertisement.
Applicable Law, Venue, Type of Action
Massachusetts law shall apply to this Agreement. All litigation shall be commenced in either the Hampden County District Court in Westfield, Massachusetts or the Federal District Court in Springfield, Massachusetts. Any arbitration or mediation shall be commenced in Hamden County, Massachusetts. The parties agree that in the event a dispute arises, GardenSupplies.eCrater.com 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 GardenSupplies.eCrater.com to select the type of ADR process, purchaser agrees to convert its action to the type of ADR process desired by GardenSupplies.eCrater.com. 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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