1. GOVERNING PROVISIONS
These Terms and Conditions Governing Sales (the “Agreement”) constitute an offer by Johnson’s Nursery, Inc. (“Seller”) to provide the goods and/or services described herein (the “products”) to the buyer to which this offer is addressed (“Buyer”), subject to the terms and conditions set forth herein. Buyer may not modify, change, renounce or waive any term or condition hereof or any of Seller’s rights or remedies hereunder, unless Seller consents thereto in writing. Seller agrees to provide the products to Buyer only on the terms of this Agreement, notwithstanding any language in Buyer’s purchase order, if one exists, or other writing or oral representation previously or hereafter received by Seller purporting to amend, modify or replace the terms of this Agreement with any different or additional terms or reciting that provision or delivery of the Products or any other action or inaction by Seller constitutes agreement or consent by Seller to such amendment, modification, or replacement.
SELLER’S AGREEMENT TO PROVIDE THE PRODUCTS IS EXPRESSELY CONDITIONED ON BUYER’S ASSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
Buyer shall be deemed to have made an unqualified acceptance of this Agreement, on the earliest to occur of the following: (a) Seller’s receipt of a copy of this Agreement signed by Buyer; (b) Buyer’s payment of any amounts due under this Agreement; (c) Buyer’s receipt of the Products; or (d) any other event constituting acceptance under applicable law.
3. CANCELLATION OR MODIFICATION
Buyer may not cancel or modify its order except upon terms accepted by Seller in writing signed by Seller’s authorized officer. In the event of such cancellation or modification, Buyer shall compensate Seller for all costs and damages resulting therefrom.
- A. HOLDING. The Holding fee for B&B material is 10% for the first month and 5% each month thereafter.
- B. RESTOCKING. Restocking fees can be applied to cancelled orders and are as follows: 1) 20% for B&B material. 2) 10% for Container material.
Buyer shall pay any tax or any other fee or charge imposed on, in connection with, or measured by the transaction between Seller and Buyer in addition to the priced quoted or invoiced.
5. SCHEDULED; DELAY
All delivery dates hereunder are approximate. Seller shall not be liable to Buyer for delays in delivery due to accidents, actions of government or civil authority, delay in transportation, energy failure, equipment breakdown, delay of suppliers, inability to obtain necessary labor, materials or facilities, acts of God, weather or any causes beyond the reasonable control of Seller. In the event of any such delay, Seller shall perform such part of the work as Seller is capable of performing and, even if Buyer places all or part of the work elsewhere, Seller shall be entitled to resume such work as soon as practicable. Buyer’s exclusive remedy for such delays, and for Seller’s inability to deliver for any reason, shall be rescission of the affected order.
6. PAYMENT TERMS
Payment terms are COD unless (a) Seller approves different terms based on a written credit or financing agreement submitted by Buyer or (b) Seller, in its sole discretion, requires payment in advance. Buyer shall pay interest on all past-due amounts at the rate equal to the lower of 1.5% per month or the highest rate permitted by applicable law, and Seller may recover all costs of collection including attorney’s fees.
7. RIGHTS UPON DEFAULT
If Buyer does not pay Seller any amount due Seller from Buyer under this Agreement or any other agreement when such amount is due or if Buyer defaults in the performance of any term or condition of this Agreement, Seller may, without liability to Buyer (a) terminate this Agreement, (b) declare immediately due and payable all of Buyer’s obligations to Seller, (c) change credit terms with respect to any further work or (d) suspend of discontinue any further work until Buyer pays all overdue amounts and Buyer deposits with Seller cash or security satisfactory to Seller covering further work. Buyer agrees to reimburse Seller for all costs incurred by Seller in collecting any sums owed by Buyer to Seller, including, but not limited to, attorney’s fees.
8. WARRANTIES AND REMEDY
Buyer shall not return any plants without Seller’s prior written approval. Seller warrants that, at the time of delivery, any plants included in the Products will be (a) true to the represented name and (b) in good living condition. Buyer must make claims for defects in writing within ten days after delivery. Buyer’s failure to make such claim within ten days after delivery shall constitute Buyer’s irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with the terms, conditions, and specifications of this Agreement. Seller shall replace, at its expense, any plants proved to be defective or, if specific replacement is not possible, Seller shall substitute plants of similar quality for the defective plants. SELLER’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPLACEMENT. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE PRODUCTS OR SELLER’S UNDERTAKINGS, ACTS OR OMISSIONS. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
9. DISCLAIMER OF IMPLIED WARRANTIES
SELLER AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER HEREBY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty.
The price quoted for the Products is FOB Jackson, Germantown, or Menomonee Falls, Wisconsin (depending upon the actual location of the farm from which the plants are shipped). Risk of loss for the Products passes to Buyer upon delivery to t he carrier. Title to the Products passes to Buyer upon Buyer’s payment in full for the Products. The parties hereby agree that this Agreement shall constitute the Security Agreement required by the Uniform Commercial Code (UCC) of the appropriate state. Buyer hereby grants Seller a security interest in the Products, wherever located, and all proceeds thereof, to secure Buyer’s payment in full for the Products. Buyer hereby authorizes Seller to execute any UCC financing statement, or any other document necessary or appropriate, to protect Seller’s security interest.
11. GOVERNING LAW
The internal laws of the State of Wisconsin shall govern the rights and obligation s of Seller and Buyer under this Agreement. Buyer unconditionally agrees to submit to the jurisdiction of the courts of Waukesha County, Wisconsin, to resolve any controversies in connection with this Agreement.
Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Agreement. Invalidity or unenforceability of any term or part of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition. Seller’s rights under this Agreement shall be in addition to any other rights Seller may have and shall not prejudice any such right.
13. NOTICE OF LIEN RIGHTS
AS REQUIRED BY THE WISCONSIN CONSTRUCTION LIEN LAW, SELLER HEREBY NOTIFIES BUYER THAT PERSONS OR COMPANIES FURNISHING LABOR OR MATERIALS FOR THE CONSTRUCTION ON BUYER’S LAND MAY HAVE LIEN RIGHTS ON BUYER’S LAND AND BUILDINGS IF NOT PAID. THOSE ENTITLED TO LIEN RIGHTS, IN ADDITION TO THE SELLER, ARE THOSE WHO CONTRACT DIRECTLY, WITH BUYER OR THOSE WHO GIVE BUYER NOTICE WITHIN 60 DAYS AFTER THEY FIRST FURNISH LABOR OR MATERIALS FOR THE CONSTRUCTION. ACCORDINGLY, BUYER PROBABLY WILL RECEIVE NOTICES FROM THOSE WHO FURNISH LABOR OR MATERIALS FOR THE CONSTRUCTION, AND SHOULD GIVE A COPY OF EACH NOTICE RECEIVED TO THE MORTGAGE LENDER, IF ANY. SELLER AGREES TO COOPERATE WITH BUYER AND BUYER’S LENDER, IF ANY, TO SEE THAT ALL POTENTIAL LIEN CLAIMANTS ARE DULY PAID.