GENERAL TERMS AND CONDITIONS OF SEED SALES
Please read these General Terms and Conditions of Seed Sales (“Terms and Conditions”) carefully. By placing an order for seed with B & D VIVIFY LLC (“Vivify”) the buyer of the seed (“Buyer”) agrees to these Terms and Conditions. From time to time, Vivify may change these Terms and Conditions and will so notify the Buyer by uploading the revised Terms and Conditions onto Vivify’s website, www.vivifyseeds.com. 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.
Buyer shall place all orders for seed in writing, by email, facsimile, letter or directly on the Vivify website. These Terms and Conditions apply to all orders for seed accepted by Vivify. All quotations for seed prior to acceptance are subject to crop availability and germination. No contract shall be deemed to be in place until an order has been accepted. Buyer agrees to proration of an order, at Vivify’s sole discretion, in the event of a shortage of the seed ordered by Buyer. Buyer agrees that time for delivery of the seed shall not be of the essence, although Vivify 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 loss or damage suffered due to the proration of an order of seed, or delay in delivery of an order of seed.
All prices are FOB, at Vivify’s warehouse, unless otherwise agreed to in writing by Vivify. Transportation charges are for the account of Buyer unless otherwise agreed to in writing by Vivify. No revision of prices for seed will be made because of market changes or for any other reason. It is understood and agreed that no deductions are to be made for exchange, taxes, transportation, drayage, or collection charges. When prices for the seed are not entered on the order or otherwise specified in writing, items will be invoiced at Vivify’s price on the date of shipment.
Payment for seed shall be due in full on or before the date of shipment, unless an alternative payment arrangement is agreed to in writing by Vivify. Seed orders will not be shipped unless the seed has been paid for, or satisfactory arrangements have been made for payment by Buyer to Vivify prior to shipment. In the event that Vivify agrees to payment terms, and the seed is not promptly paid for in accordance with those terms, then Vivify shall be entitled to late fees at the rate of 18% per annum, or the maximum rate permitted by law, whichever is less.
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 Vivify for delay in delivery of seed or failure to deliver seed caused by crop failures and shortages, war, strikes, fires, floods, unexpected weather conditions, embargoes, national emergencies, pandemics, epidemics, acts of God, embargoes or any other contingencies beyond Vivify’s control, which delay or prevent Vivify from filling an order of seed from its normal source of supply therefore. 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, Vivify shall have the option to either cancel Buyer’s order or pro rate 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 Vivify, but rather return the seed to Vivify within 20 days of purchase for a refund of the purchase price.
LIMITATION OF WARRANTY: Vivify 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. THIS 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.
LIMITATION OF LIABILITY: Vivify’s sole express warranty to the Buyer is that the seed that Vivify 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. VIVIFY 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. VIVIFY 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.
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. Vivify 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 Vivify is free from a seed borne pathogen. VIVIFY 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. VIVIFY’S INTELLECTUAL PROPERTY RIGHTS
Buyer acknowledges that the seeds sold by Vivify are proprietary varieties which belong to Vivify, and 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 Vivify has obtained a patent or plant variety protections certificate for the seed. Buyer acknowledges that all intellectual property rights to reproduce or propagate the seed are for the benefit of, and are the property of, Vivify, and Buyer agrees that Buyer will not propagate the 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.
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 (sworn for AL, AR, CO, FL, IL, IN, MN, MS, NC, SC, TX, WA; signed only CA, GA, ID, ND, SD) along with the required filing fee (where applicable) with the Commissioner/Director/Secretary of Agriculture, Seed Commissioner, or Chief Agricultural Officer, within such time as to permit inspection of the crops, plants or trees by the designated agency and the seedsman 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. Failure to follow this procedure may limit your legal rights or limit the amount of damage you may be able to recover.