ORDERING TERMS & CONDITIONS

VERSION 2.10
EFFECTIVE BEGINNING JUNE 13, 2006

The following terms and conditions, as referenced in the contract documents of Brandt’s Fruit Trees, Inc., apply to any and all contractual relationships between Brandt’s Fruit Trees, Inc. as seller and all buyers of its products.

NOTE: These terms and conditions are in addition to those contained in the contract documents and are not intended to modify or contradict any of the terms and conditions contained in the contract documents. In the event that any of these terms or conditions modifies, or is determined to be in conflict with any of the terms and conditions in the contract documents, the terms and conditions contained in the contract documents shall govern and the conflicting term(s) or condition(s) contained herein shall be invalid and of no force or effect without affecting the validity of the remaining terms herein or in the contract documents.

  1. PAYMENT: Buyer shall pay the agreed price for the plant materials in full within thirty (30) days of the date of seller’s invoices or seven (7) days of freight invoice, whichever is earlier. Interest will be charged on overdue balances at one and one-half (1-1/2%) per month (18% per annum) or, if less, the highest rate of interest permitted by applicable law.
  2. LIMITED WARRANTY: Seller warrants that the plant materials described in this Contract are of the variety and cultivar represented. Buyer acknowledges that any descriptions of variety and cultivar properties, qualities or characteristics are only generalized descriptions and do not constitute warranties. Buyer further acknowledges that instability in the cultivars of some varieties is possible, including without limitation, reversion relative to maturation schedule.  . 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 for a period of one (1) year 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 OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BECAUSE THE PRODUCTIVITY OF FRUIT TREES IS AFFECTED BY HORTICULTURAL PRACTICES, GEOGRAPHIC AND ENVIRONMENTAL FACTORS 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. UNLESS THE PLANT MATERIALS ARE SOLD AS “CERTIFIED VIRUS INDEXED” 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: Any claims concerning plant materials must be submitted by Buyer to Seller in writing within the following periods after receipt of such plant materials by Buyer.
    4.1   Within three (3) days of delivery: Claims 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 5 following date of delivery: Claims for mortality on bare root trees. Seller shall have no liability for losses due to Buyer’s negligence, improper care, freezing, unreasonable use or abuse.
    4.3   Within three (3) years from the date of delivery, any and all other claims for breach of this Contract, specifically including but not limited to claims for errors in variety and cultivar.
    4.4   If Buyer fails to submit a claim within the above-mentioned time frames, the Buyer agrees that those claims are waived.
  5. LIMITATION OF REMEDIES: BUYER’S SOLE AND EXCLUSIVE REMEDIES SHALL BE LIMITED TO EITHER THE REPLACEMENT OF THE PLANT MATERIAL OR A REFUNDOF THE PURCHASE PRICE OF THE PLANT MATERIAL, AT THE BUYER’S OPTION. THESE EXCLUSIVE REMEDIES SHALL COVER ANY CLAIMS BASED ON CONTRACT, STATUTE, COMMON LAW OR TORT. 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 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.
  6. CONTINGENCIES: The Seller shall be relieved of any obligations under this Contract in the event the Seller is unable to perform due to causes or forces beyond the Seller’s control and/or Acts of God, including but not limited to adverse weather conditions, drought, frost, hail, wind storms, disease, insects, fire, flood, labor shortages, crop failures, chemical damage, war, embargo, government regulations or restrictions, transportation problems, accidents, volcanic eruption, earthquake, 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 give the Buyer 30 days’ written notice and 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 material’s unavailability to the Seller shall not be deemed a breach of this Agreement.
  7. 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.
  8. TAXES, FEES: Prices listed on this Agreement may not include all federal, state or local taxes which shall be paid by Buyer. In addition, Buyer shall pay all government inspection and certification fees, if any, for the plant material whether or not listed in this Agreement.
  9. ENTIRE AGREEMENT: In addition to the Terms and Conditions set forth herein, the additional Terms and Conditions set forth on the official website of Brandt’s Fruit Trees LLC (www.brandtsfruittrees.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.
  10. GOVERNING LAW AND VENUE: This Agreement shall be governed by the laws of the State of Washington without regard to its or any other jurisdiction’s conflict of laws provisions.   Venue for any action between the parties shall be exclusively in Yakima County, Washington and Buyer hereby submits to personal jurisdiction in Washington.
  11. COSTS AND ATTORNEY FEES: In the event any action is taken to enforce any of the terms of this Contract, the prevailing party shall be entitled to an award of reasonable attorney fees and costs (which shall include the costs of expert witnesses, if any).
  12. ASSIGNMENT: The rights and benefits of this Contract to the Buyer may not be assigned or transferred by the Buyer, voluntarily or involuntarily, without the prior written consent of the Seller.
  13. SEVERABILITY: If any of the terms or conditions of this Contract is 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.