Terms and conditions of sale
SALES CONFIRMATION ADDITIONAL TERMS AND CONDITIONS
TERMS: Payment by the Buyer of the purchase price shall be in accordance with the terms set out in the Sales Confirmation, subject to sight draft, Order Notify Bill of Lading attached.
Mountain View Seeds Ltd., (“Seller’) warrants to the extent of the price that seeds sold are as described on the container within recognized tolerances.
In the event of short crop, Seller reserves the right to fill this order “prorata” and in case of complete failure of crop, Seller shall not be held liable.
In the event that this sale is a sale to a purchaser located in the United States or Canada, then this contract and all matters relating to the performance of this contract shall be governed by the laws of the State of Oregon and the Noram Seed Rules and Usages except as the terms of this agreement may provide to the contrary. In the event of a conflict between the terms of this agreement and the Noram Seed Rules and Usages, then the terms of this agreement shall govern.
In the event that the sale is a sale to a purchaser located outside of the United States or Canada, then this contract shall be governed by International Seed Federation Rules. In the event of a conflict between the terms of this agreement and International Seed Federation Rules, then the terms of this agreement shall govern.
Anything contained herein to the contrary notwithstanding, this contract shall be deemed to have been made Salem, Oregon, and Buyer hereby agrees to submit to the jurisdiction of the courts of the State of Oregon to resolve all disputes relating to this contract.
At the option of Seller, any controversy hereunder may be resolved by suit or action in the appropriate court or by arbitration in accordance with the rules of the American Arbitration Association.
In the event that litigation is instituted arising directly out of this contract, then the losing party shall pay to the prevailing party its reasonable attorney fees at both the trial and appellate levels.
All amounts due under this agreement shall be payable in U.S. funds unless otherwise noted on the front of this agreement.
In the event of a conflict between the terms of this agreement and any other contract covering this same transaction, the terms of this agreement shall govern.
Buyer shall not assign this agreement or Buyer’s rights hereunder without the express written consent of Seller.
Seller neither warrants nor guarantees against damage from the use and/or application of the product sold and hereby is expressly relieved from liability therefore. Unless expressly stated herein, Seller shall not be deemed to have any knowledge of any particular purpose for which the goods sold hereunder are required.
This sale is based upon the present ocean freight rates, marine insurance, warfage, handing or terminal charges, tariff and custom house classifications, excises, taxes, and governmental charges, and any increase in any of the same subsequent to the date hereof, together with any demurrage charges, shall be at the expense of the Buyer.
Any excise, taxes, fees or other charges now or hereafter imposed by any governmental agency or authority on the products governed hereby, their production, refining, sale or use, shall be added to the price set forth herein.
In the event that Buyer defaults in any payment to the Seller or becomes insolvent, or if a receiver is appointed for all or a part of Buyer’s assets, or a petition in bankruptcy, either voluntary or involuntary is filed by or against Buyer, Seller may, at its option, cancel all or any unfilled portion of this contract.
In the event this agreement provides for the sale of several installments, then separate and independent contracts for sale of the several installments agreed to be delivered are intended, and no breach by the Seller as to a particular installment shall effect the contract for payment as provided, or to fulfill the terms of this, or any other agreement with the Seller. The Seller may, without prejudice to any other lawful remedy, defer further deliveries, or at its option, cancel this or any other contracts with the buyer, saving to the Seller the right to recover any damage suffered by such cancellation.
Failure by Seller at any time to require performance by purchaser of any of the provisions hereof shall in no way affect Seller’s rights hereunder to enforce the same nor shall any waiver of any breach hereof be held to be a waiver of any other succeeding breach, or a waiver of this non-waiver clause.
Payment must be made in full when due and it is not permissible to withhold payment or offset claims which the Buyer may have. In all cases the Buyer agrees not to assert any defense, setoff, recoupment, claim or counterclaim which Buyer may have against Seller relating to sums due under this agreement.
Any provisions hereof contrary to the law governing jurisdiction shall be deemed void to the extent of such prohibition, but without invalidating the remaining provisions hereof.
This Sales Confirmation operates as an acceptance of Buyer’s offer pursuant to ORS 72.2070 even if it states terms additional to or different from those offered or agreed upon. All the terms and conditions of this Sales Confirmation shall be deemed to be part of the contract referred to herein unless the Buyer provides written notification to Seller objecting to such terms and conditions within 5 days of receipt. For the purposes of ORS 72 this transaction is a transaction between merchants.
NOTICE TO BUYER: EXCLUSION OF WARRANTIES, LIMITATION OF DAMAGES AND REMEDY AND LIMITATION OF TIME TO FILE CLAIM
Seller warrants that the seed will conform to the label description, as required by applicable seed laws. Except as provided in this Agreement, Seller makes no other warranties, express or implied, of merchantability, fitness for a particular purpose or otherwise.
Liability for damages for any cause, including breach of contract, breach of warranty and negligence, with respect to this sale of seed is limited to a refund of the purchase price of the seed or the replacement of the seed, at Seller’s option. This remedy is exclusive. In no event shall Seller be liable for any incidental or consequential damages, including loss of profits. Any claim for damages pursuant to this Agreement must be made within one (1) year after delivery of the product alleged to be defective.