STANDARD TERMS AND CONDITIONS OF SALE
All products and services of Bountygreens LLC are furnished to the buyer named on the applicable Order Confirmation (“Buyer”) subject to these Standard Terms and Conditions of Sale (“Terms”).
1. Definitions. These Terms and any order confirmation into which they are incorporated are referred to collectively below as the “Order Confirmation.” The order evidenced by the Order Confirmation is referred to below as the “Order.” The Products to be purchased by Buyer under the Order are referred to below as the “Products.” Any purchase order or other document or communication from Buyer in connection with the Order is referred to below as a “Purchase Order.”
2. Conditional Acceptance. Bountygreens LLC’s issuance of an Order Confirmation is expressly made conditional (i) upon Buyer’s acceptance of any and all terms contained in the Order Confirmation that are additional to or different from any terms on the Purchase Order that Buyer submits to Bountygreens LLC, and (ii) upon Buyer’s further agreement that the terms contained in the Order Confirmation constitute the sole and exclusive agreement between Bountygreens LLC’s and Buyer. Such agreement will be deemed given unless Buyer notifies Bountygreens LLC in writing of Buyer’s objection to specific terms within three days after Bountygreens LLC’s issuance of the Order Confirmation.
3. Conflict of Provisions. If the provisions contained in a Purchase Order conflict with these Terms or with the provisions contained in an Order Confirmation, the terms contained in the Order Confirmation and Terms shall control.
4. Quotations and Prices. (a) The quotation for Bountygreens LLC’s Products and any related materials, services, equipment, tools and personel are firm for the period, and expire on the date, set forth in the quotation. Buyer’s order will become a firm order upon Bountygreens LLC’s issuance of an Order Confirmation and receipt of any applicable down payment required by the Order Confirmation. Unless expressly indicated otherwise on the face of the Order Confirmation, the price does not include, and Buyer shall be responsible for, (1) any and all taxes incurred on the sale of the Products (including, without limitation, all sales, use, excise, value added, stamp, transaction, or similar taxes); (2) all costs incurred for governmental approvals or permits required for the purchase and use of the Products; and (3) all costs incurred for special transport methods required by Buyer. If applicable, Buyer shall provide written evidence of its tax exempt status. (b) Prices. All prices are in US Dollars. Prices exclude shipping and handling or applicable sales or other tax.
5. Payment Terms. If Bountygreens LLC agrees to extend credit to the Buyer, Buyer agrees that all amounts payable are due within 30 days of the date of the invoice for the Products. All sums shall be payable to Bountygreens LLC by check, wire, or electronic funds transfer in immediately available funds in U.S. dollars. Any amounts past due shall accrue interest at the rate of 1.5% per month from the delinquent date, but in no event higher than the highest legal rate permissible by applicable law. If Buyer fails to pay any amount when due, then Bountygreens LLC, without prejudice to other lawful remedies, may at its option give notice to Buyer and defer further shipments until such default is corrected, recall product in transit, treat the default as a breach hereof, or terminate this contract, or Order Confirmation and cancel any other outstanding Order with Buyer.
6. Costs of Collection and Attorney’s Fees. Buyer shall be responsible for all of Bountygreens LLC’s costs of collection including, without limitation, its reasonable attorneys’ fees and costs both prior to trial, at trial and on appeal.
7. Credit. Buyer will complete any credit application requested by Bountygreeens LLC at any time. If Bountygreens LLC refuses to extend credit to the Buyer or determines that the Buyer’s credit has become impaired, which it may due in its sole discretion at any time, payment for all Orders shall be payable in advance.
8. Changes in Composition. Prior to delivery, Bountygreens LLC may change the formulation and composition of any Product without notice to Buyer as long as the general function of the Product is not thereby negatively altered. If, prior to delivery, the general function of a Product will be altered by a change in the formulation and composition, then Bountygreens LLC shall notify Buyer and Buyer shall have the option to terminate the purchase order for that portion relating to the altered Product and recover any and all payments directly allocable to that Product previously made to Bountygreens LLC.
9. Security Interest. Bountygreens LLC shall retain a purchase money security interest in the Products and all proceeds thereof, until such time as Buyer has made payment in full of all sums due, including, without limitation, interest, costs, and incidental expenses directly related to the Products. Buyer shall cooperate fully with Bountygreens LLC to execute such documents and accomplish such filings and recordings as Bountygreens LLC may deem necessary to maintain and perfect its security interest in the Products. Upon payment in full of all sums due, Bountygreens LLC shall cooperate with Buyer to cancel the purchase money security interest and accomplish such filing and recordings as Buyer may deem necessary.
10. Shipping and Delivery Terms. (a) Except as specifically set forth in these Terms, all terms are F.O.B. Bountygreens LLC’s warehouse. Title and risk of loss for all Products pass to Buyer upon delivery of the Products to the carrier. If under the bill of lading the Products are delivered to Seller or Seller’s order, or if Seller retains documents covering the Products, such acts will be deemed to be only for the purpose of securing performance by Buyer of its obligations. In the event of loss or damage in transit, Buyer shall nevertheless pay the full invoice price according to the invoice terms. Products will be shipped to the address indicated on the face of the Order Confirmation. Anticipated shipping dates are subject to revision by Bountygreens LLC to adjust for future production schedule requirements; provided, however, that Bountygreens LLC will provide Buyer with 10 business days’ notice of any modification to the shipping schedule. Delivery is subject to availability and lead times required by Bountygreens LLC’s production schedule and with due notice to Buyer. Buyer may request reasonable delays of the scheduled shipping date established by Bountygreens LLC prior to the date the Product is shipped, provided that Buyer submits its request to Bountygreens LLC in writing at least 30 days before the scheduled shipping date, and Bountygreens LLC consents in writing to the date requested by Buyer. Bountygreens LLC’s consent will not be withheld unreasonably, but Bountygreens LLC may (i) refuse to honor any request for delay received within 30 days of the scheduled shipping date, (ii) store the Product at Buyer’s expense if Buyer is unable to accept delivery on the original scheduled shipping date (or any rescheduled shipping date), and (iii) invoice Buyer for the Product as if it had been shipped on the original requested shipping date (and Buyer will pay such invoice immediately upon receipt). For any Buyer request for a delay in the shipping date received by Bountygreens LLC within 30 days of the scheduled shipping date to which Bountygreens LLC, in its sole discretion, consents, Bountygreens LLC may (i) schedule (and Buyer shall accept) a new shipping date that conforms with the availability, lead times, and other requirements of Bountygreens LLC’s production schedule, and (ii) invoice Buyer for the Products as if they had been shipped on the original requested shipping date (and Buyer will pay such invoice immediately upon receipt).
11. Returns. Except for special order items, all new, unused, and undamaged products may be returned subject to the terms and conditions stated herein. Products must be returned within 15 days or a restocking fee will apply. Absolutely no returns are permitted after 30 days. All Products for return must be sent freight prepaid. Products returned must be accompanied by a Return Products Authorization showing the invoice number, date shipped, and reason for return. A Return Products Authorization can be obtained by requesting one from Bountygreens LLC.
12. Rejection. A rejection of the Products or claim of shortages or damaged Products by Buyer shall not be effective unless it is made and written notice thereof is given to Bountygreens LLC within five days after the Products arrive at the destination specified in the Order Confirmation. All claims for shortages or damaged material must be supported by written exceptions by Buyer or Buyer’s representative on the delivery documents at the time of delivery or pickup. Failure to take exceptions against the carrier for short delivery or damages will constitute a waiver of any such claims.
13. Limited Warranty. (a) Limited Warranty. Bountygreens LLC warrants to Buyer only that for a period of six months after delivery of the Product that the Product, when delivered will conform to the grade and minimum guaranteed analysis set forth in any accompanying data product specification label. This limited warranty shall only apply as long as the Product is used and stored in accordance with the directions for use. This limited warranty does not extend to use of the Product contrary to directions or under conditions not reasonably foreseeable by the Seller. Buyer and the end user, if different, assume the risk of any such use. . THIS LIMITED WARRANTY IS BUYER’S EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, COVENANTS OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY PURPOSE, WHETHER ARISING BY LAW, CUSTOM, OR CONDUCT. (b) Exclusions. Warranty coverage does not include any defect or performance deficiency which is the direct or indirect result of (i) accident, abuse or misuse; (ii) operation of the Product outside of specified environmental, or performance requirements, conditions, capabilities, or standards; (iii) fires, floods, and other natural causes; (vii) inadequate humidity or temperature control; or (viii) damage, neglect, alteration, or any impairment of the Product resulting from (x) causes or conditions not associated with ordinary storage, handling, or use, or (y) any acts, omissions, causes, or events beyond the control of Bountygreens LLC. This Limited Warranty shall not apply to any Product to which Buyer or any end user of the Product has added any other materials prior to its use. (c) Remedies. If Bountygreens LLC determines that the Product does not meet the technical and performance specifications contained in Product Data Sheets, it may, in its sole discretion, either replace the Product or correct any defects properly and timely reported to Bountygreens LLC during the warranty period. (d) Resale. If Buyer resells the Product, all obligations under this warranty shall be null and void if Buyer modifies the Product in any manner. (e) Disclaimer. To the extent consistent with applicable law, Seller disclaims all other warranties, express or implied, including any warranty of fitness or merchantability.
14. Limitation on Liability. Bountygreens LLC’s total liability in damages or otherwise for any claim arising from or in connection with the sale, purchase, delivery and use of the Products or services provided by Bountygreens LLC in connection therewith shall not exceed the payment, if any, received by Bountygreens LLC for the Products. In no event shall Bountygreens LLC be liable for any consequential, incidental, indirect, punitive, or special damages, including, but not limited to, any loss of use, lost revenues, lost profits, costs of replacement products, and any similar damages, expenses, or losses, and regardless of however caused, whether based on contract, tort, negligence, or any other legal theory.
15. Indemnity. Bountygreens LLC shall have no responsibility whatsoever for, and Buyer shall indemnify, defend, and hold Bountygreens LLC harmless from, any and all damages or injury that arise, directly or indirectly, from or relate to (i) any use, operation, or service of the Products contrary to written warning or instruction given by Bountygreens LLC with respect to such Products, (ii) unauthorized use of the Products or (iii) any modification of Products either by Buyer or by an end user of a Product originally purchased by Buyer.
16. Limitation Periods for Claims. No claims, regardless of form, arising out of or in connection with Products provided by Bountygreens LLC may be brought against Bountygreens LLC more than one year after the date on which the cause of action accrued or the date on which Bountygreens LLC’s performance with respect to such Products was completed or terminated, whichever is earlier. Buyer waives any claims on account of weight, quality, loss of or damage to Products unless Buyer makes any such claims in writing upon receipt of product, after arrival of product at destination, and Bountygreens LLC’s liability for damages, proven to Bountygreens LLC’s satisfaction, will be to refund to Buyer, if paid, the purchase price of that part of the Products which is subject to the condition or cause on which claim is based, or to replace the Products, and shall in no event exceed the purchase price of the particular delivery with respect to which such damages are claimed. Any claim for breach of the limited warranty must be received by Bountygreens LLC within 15 days of delivery.
17. Default. In addition to Bountygreens LLC’s remedies under the Uniform Commercial Code, Buyer shall be in default upon the occurrence of any of the following: (a) Buyer’s failure to either make any payment when due or refusal of Buyer or failure to comply with any provisions of these Terms or of the Order Confirmation; (b) Failure or refusal by any third party to issue, advise, confirm, negotiate, extend or reissue any Letter of Credit or other documentary arrangement in effect and required by Bountygreens LLC or otherwise provided for under the applicable Order Confirmation; (c) If Buyer or any third party that issues a Letter of Credit or other documentary arrangement shall become unable to pay its debts as they become due, shall file a voluntary petition or be declared bankrupt or insolvent, or make a general assignment for the benefit of creditors; or (d) If a trustee, receiver or liquidator be appointed for any material portion of assets of Buyer or any third party issuer of a Letter of Credit or other documentary arrangement.
18. Remedies. Upon the occurrence of any event of default, Bountygreens LLC may exercise any or all rights and remedies hereunder or at law or inequity, including, without limitation: (a) Accelerate and declare all remaining sums due and payable; (b) Draw against any Letter of Credit or other documentary arrangement issued pursuant to an Order Confirmation; (c) Without notice immediately and without further action, to set off against the liabilities of Buyer any money owed by Bountygreens LLC to Buyer, or any other person or entity obligated under any arrangement between Bountygreens LLC and the Buyer, in any capacity, whether due or not due; (d) Exercise any and all rights to lien, security interest, purchase money security interest or other charge against any Product sold to Buyer; (e) Withhold delivery of the Product or any other product sold to Buyer; (f) Stop delivery by any bailee of any Product sold to Buyer; (g) Resell and recover damages; (h) Cancel this contract or Order Confirmation; or (h) Retain 50% of all down payments as liquidated damages. In such event, and in addition to any other damages provided herein or allowed under applicable law, Bountygreens LLC shall recover against Buyer all costs, expenses, and attorney fees incurred in connection with such default and termination. The foregoing rights and remedies shall not be deemed exclusive and are in addition to and cumulative with any other rights and remedies provided hereunder, at law or in equity.
19. Performance. Neither party shall be liable for any delay in delivery or other default in performance that is due to unforeseen circumstances, or to causes beyond its reasonable control and without the fault or negligence of such party. Such causes and circumstances include, without limitation, force majeure events such as: strikes, lockouts, and other labor disputes, riots, civil unrest, war, sabotage, vandalism, terrorism, explosions, embargoes, epidemics, fire, flood, storms, and other similar and dissimilar natural causes, acts of God, unforeseen delays in transportation or in obtaining any permits or licenses, or other delays caused by unforeseen action or inaction of civil or military authorities, or of contractors or subcontractors, or of other third parties (other than those contractors, subcontractors, or third parties under the control of the nonperforming party), and any other cause or condition beyond the parties’ reasonable control. Provided any such delay or default is neither material nor indefinite, the time for performance will be extended for a commercially reasonable period of time and thereafter the other party shall accept performance hereunder.
20. Choice of Law, Jurisdiction, and Venue. These Terms will be governed by and are to be interpreted and enforced exclusively pursuant to the laws of the State of Florida, without regard to principles of conflict of laws. The Buyer and Bountygreens LLC both, irrevocably and unconditionally (a) agree that any suit, action or other legal proceeding arising out of or relating to any Order shall be brought in either a court of record of the State of Florida in [Palm Beach] County, or the United States District Court for the Southern District of Florida, (b) consent to the jurisdiction of each such court in any suit, action or proceeding, (c) waive any objection which any party may have to the jurisdiction of such court, and the laying of venue of any such suit, action or proceeding in any such court, and (d) waive any right to a trial by jury.
21. No Assignment. Buyer may not assign any of its rights or delegate any of its duties under any Order without the prior written consent of Bountygreens LLC which may be withheld in its sole discretion. Any purported assignment or delegation in violation of this provision will be deemed null and void.
22. Waiver. The failure of Buyer or Bountygreens LLC at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. The waiver of any remedy with respect to any default will not be taken as a waiver of any remedy for any succeeding default.
23. Invalidity and Interpretation. The invalidity or unenforceability of any provision hereof, whether in whole or in part, for any reason, will not affect the remaining provisions, and these Terms will be construed in all respects as if any such invalid or unenforceable provision(s) were omitted. Course of dealing, course of performance, course of conduct, prior dealings, usage of trade, community standards, industry standards, and customary practice or interpretation in matters involving the sale, delivery, or use of the Products or similar or dissimilar products shall not serve as references in interpreting the Terms.
24. Entire Agreement. These Terms together with the applicable Order Confirmation for the Products and any related documents expressly agreed to in writing by the parties contain the complete and exclusive statement of the terms of agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous understandings, representations, and warranties, written or oral. These Terms may not be altered, supplemented, or amended without the express, written consent of the President of Bountygreens LLC.
25. Survival. The provisions of, and respective obligations of the parties these Terms shall survive for five years after the date of delivery of the Products to the Buyer or if that did not occur, five years after the date of the Order Confirmation.
26. Conflicts. In the event of any ambiguity or conflict between or among these Terms, the Order Confirmation and any other agreement or writing signed by Bountygreens LLC, the express terms of the Terms and Order Confirmation govern and control. In no event, however, shall any additional, differing, conflicting, supplemental or other terms or conditions stated in any purchase order, acknowledgment, contract or other document issued by Buyer (“Conflicting Terms”) have any effect or bind Bountygreens LLC unless such Conflicting Terms are specifically accepted in writing by the President of Bountygreens LLC.