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Standard Terms and Conditions of Sale

  1. Scope. These Standard Terms and Conditions of Sale (these “Terms and Conditions”) set forth the terms and conditions upon which Wonderful Nurseries (“Seller”) will sell certain products to the buyer (“Buyer”) listed on the Sales Agreement to which these Terms and Conditions are attached (as amended from time to time, the “Sales Agreement” and, together with these Terms and Conditions, this “Agreement”). This Agreement constitutes the final, complete and exclusive agreement between Buyer and Seller as to the sale of the products identified in the Sales Agreement, and supersedes all prior oral or written agreements (whether express or implied, including implied by custom, practice, course of dealing, or otherwise) with respect to the same. Any attempted modification of this Agreement by Buyer, and any additional or different terms included in Buyer’s purchase order, in any other document responding to any offer by Seller, or in subsequent documents, purchase orders or acknowledgment requests provided by Buyer relating to any offer by Seller are hereby rejected and non-binding unless conspicuously and expressly assented to in writing by Seller. Buyer’s execution of the Sales Agreement or the making of any payment or deposit to Seller as provided in this Agreement will constitute Buyer’s acceptance of the terms and conditions of this Agreement.  To the extent there are any inconsistencies between these Terms and Conditions and the Sales Agreement, the latter will control.
  2. Price. The Total Contract Price for the products, as specified in the Sales Agreement, includes (a) all fees, costs, and charges relating to the storage of such products up to July 1st of the year of delivery (additional costs will apply for any storage beyond that date), (b) applicable shipping and handling charges, and (c) the following taxes, fees, assessments and royalties, as applicable: (i) California sales tax and any other applicable sales or excise tax, (ii) the California Fruit, Nut and Grapevine Assessment, (iii) the University of California Foundation Plant Material Service user fees, (iv) the California Grape Rootstock Improvement Commission assessment, and (v) the University of California royalties on certain patented varieties.  Buyer shall also be responsible for such other taxes, fees, assessments or royalties hereinafter enacted that are assessable at the time of shipment by reason of the transactions contemplated by this Agreement.  The Total Contract Price shall be adjusted to reflect any increases in shipping and handling charges (including any fuel surcharges) and increases in the rates and charges for taxes, fees, assessments and royalties in effect on the shipment date.
  3. Payment.  Unless otherwise provided in the Sales Agreement, Buyer shall pay Seller the Total Contract Price in installments as follows: (a) 25% of the Total Contract Price upon execution of this Agreement by Buyer (the “First Deposit”), (b) 50% of the Total Contract Price on or prior to January 15th of the year of delivery (the “Second Deposit” and, collectively with the First Deposit, the “Deposit”), and (c) the balance of the Total Contract Price (as adjusted) due immediately prior to shipment from Seller’s facilities.  Any applicable adjustments to the Total Contract Price pursuant to Section 2 or Section 7 will be immediately due and payable as requested by Seller.  Seller reserves the right to suspend any further performance hereunder or otherwise if any payment is not made when due.  No payment by offset is permitted.  Interest charges will be added to all amounts unpaid from the due date at the rate of 1.5% per month (subject to any limit imposed by applicable law).
  4. Delivery Date. The parties shall mutually agree in writing on a delivery date for the products, which shall be at least 14 days from the date of such agreement.  Seller reserves the right to make delivery in installments and to add a fuel surcharge to all deliveries.  If the parties are unable to determine a mutually agreed delivery date, Seller has the option of shipping all or any portion of the undelivered products to Buyer on or after July 1st of the year of delivery or store such products at the sole expense and risk of Buyer.
  5. Delivery/Title/Risk of Loss.  Buyer is responsible for all shipping and handling charges.  Risk of loss and title passes to Buyer upon the earlier of Seller’s delivery of products to the common carrier or the products’ departure from Seller’s dock or nursery, as applicable.  Notwithstanding the foregoing, if the mutually agreed delivery date is after July 1st of the year of delivery (for products other than potted green vines), the risk of loss shall pass to Buyer at 12:00 am on July 1st and Buyer shall pay Seller a cold storage fee of $1.00 per vine for the period of time any products are held by Seller for delivery after July 1st; provided that Seller shall have no obligation to retain such products after April 15th of the following year.  Seller does not recommend planting products after July 1st and shall have no liability for poor performance of products as a result of late season planting whether pursuant to Section 7 hereof or otherwise.
  6. Availability. Seller’s obligation to deliver products in the stated quantities is subject to the express condition of availability of such products at the time of harvest. Seller’s acceptance of this Agreement is based upon estimated yields from Seller’s fields and/or greenhouses, and Seller shall attempt in good faith to grow products in quantities in line with the estimated yields. However, if the actual yields are below the estimated quantities for any reason, Seller shall determine in its sole and absolute discretion the amount of products it shall sell to Buyer, and Buyer shall accept such products and pay Seller the above-specified price per unit actually delivered. This shall apply to each variety, selection or lot on an individual basis and availability or unavailability of certain varieties, selections or lots shall not relieve Buyer from any of its obligations hereunder related to any other varieties, selections or lots.
  7. Inspection; Replacement.  Buyer agrees to make full and complete inspection of products upon receipt of shipment.  Any claims for shortage in quantity or defective products (i.e., vines that do not comply with CDFA standards) must be made in writing to Seller within 48 hours of receipt of shipment.  Buyer’s failure to deliver a written claim to Seller within 48 hours shall be deemed Buyer’s irrevocable acceptance of the products and an admission by Buyer that the products fully comply with all terms and conditions in this Agreement.  As soon as reasonably practicable after Seller’s receipt of Buyer’s claim notice, (a) if Buyer’s claim is with respect to a shortage in quantity, Seller shall, subject to availability, remedy such shortage or (b) if Buyer’s claim is with respect to defective products, Seller shall provide Buyer with instructions to return defective products to Seller.  Returned products must be in original delivered condition.  Upon timely receipt of returned products and verification of alleged defects, Seller shall, subject to availability, replace defective products, or, at Seller’s option, refund the purchase price paid for the defective products; provided, however, that total replacement products or refund, as applicable, shall not exceed 3% of the total products ordered (or, in the case of Fastrack products only, shall not exceed 10% of the total products ordered).  Any returned products that Seller cannot verify as defective or that have been mishandled shall be returned to Buyer without replacement or refund at Buyer’s sole cost and risk.  In addition to the foregoing, products which received proper care, are part of Buyer’s first-year planting at a new vineyard and fail to exhibit signs of growth with 90 days of delivery, will be replaced free of charge, subject to availability; provided, however, that total replacements shall not exceed 3% of the total original order (or, in the case of Fastrack products only, shall not exceed 10% of the total original order). This replacement policy shall not apply to nursery stock purchased for replacements or to stock furnished under this replacement policy. Any claims for shortage in quantity or defective products hereunder shall not constitute grounds for claiming breach of this Agreement.
  8. No Returns.  Once products have shipped, all sales are final and no returns will be accepted for refund except as otherwise expressly set forth herein.
  9. Cancellation; Liquidated Damages.  This Agreement may not be cancelled after shipment of the products to Buyer.  If Buyer desires to cancel this Agreement prior to shipment for any reason other than a default by Seller hereunder, Seller shall be entitled to receive or retain, as applicable, the First Deposit and one-half (1/2) of the Second Deposit as liquidated damages.  The remaining one-half (1/2) of the Second Deposit will be refunded to Buyer within 30 days of cancellation.  BUYER AGREES THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES THAT SELLER MAY SUFFER IF BUYER CANCELS AN ORDER. BUYER THEREFORE AGREES THAT THE PORTION OF THE DEPOSIT ENTITLED TO BE RETAINED BY SELLER REPRESENTS A REASONABLE ESTIMATE OF THE NET DETRIMENTS THAT SELLER WOULD SUFFER IN SUCH EVENT. ACCORDINGLY, UPON CANCELLATION OF AN ORDER, BUYER AND SELLER BOTH AGREE THAT SELLER’S RETENTION OF A PORTION OF THE DEPOSIT AS PROVIDED IN THIS AGREEMENT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY, AS APPLICABLE, FOR THE OCCURRENCE OF SUCH AN EVENT AND SHALL NOT CONSTITUTE A FORFEITURE OR PENALTY. THE PARTIES AGREE THAT NOTHING IN THIS PARAGRAPH SHALL AFFECT OR SERVE TO WAIVE OR OTHERWISE LIMIT SELLER’S REMEDIES OR DAMAGES OR CLAIMS OF SELLER AGAINST BUYER ARISING OUT OF ANY OBLIGATION OF BUYER SPECIFICALLY DESCRIBED IN THIS AGREEMENT NOR OTHERWISE LIMIT SELLER’S RIGHTS TO OBTAIN FROM BUYER ALL COSTS AND EXPENSES OF ENFORCING THE FOREGOING OR THE TERMS OF THIS LIQUIDATED DAMAGES PROVISION, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES (BASED ON MARKET RATES) AND EXPERT COSTS AND FEES.
  10. AS-IS SALE; NO WARRANTIES.  THE PRODUCTS ARE SOLD IN AN “AS-IS, WHERE IS, WITH ALL FAULTS” CONDITION AND SELLER DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO THE DESCRIPTION, QUALITY, PURITY, GENETIC STABILITY, PRODUCTIVENESS, FREEDOM FROM DISEASE, PATHOGEN OR VIRUS, OR AS TO ANY MATTER OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR ANY PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
  11. Causes of Action.  Buyer must commence any action against Seller arising from this Agreement within six (6) months from the date the cause of action accrues.
  12. No Third Party Liability/ Indemnity.  Seller shall not be liable in any way for any loss or damage to a third party related to the product sold hereunder.  Buyer shall indemnify, defend, and hold harmless Seller from and against any and all loss, damage, claim, liability or expense, including, without limitation, reasonable attorneys’ fees (based on market rates) and costs, directly or indirectly arising from the use, planting, or resale of the products. Without limiting the generality of the foregoing, Buyer’s indemnification obligation with respect to Custom Products (as defined below) will include, but is not limited to, claims of infringement, misappropriation of proprietary materials, or any other claims by a third party. This Section 12 will survive the expiration, completion, or the earlier cancellation of this Agreement.
  13. Additional Seller Remedies.  If Buyer fails to adhere to any conditions of this Agreement, including, but not limited to, terms of payment with respect to any transaction between them, then Seller has the right and option to withhold any undelivered portion of products, or to cancel this Agreement and terminate any remaining deliveries under this Agreement, or to require full payment in advance, all without prejudice to such other remedies and rights as Seller may have with respect to the subject matter of this Agreement.
  14. Custom Orders. Notwithstanding anything in this Agreement to the contrary, the following terms shall apply to any order (“Custom Order”) of products that are customized in any way by Seller at the request of Buyer (“Custom Products”):
    1. The Total Contract Price for a Custom Order, including the Deposit for such Custom Order, shall be due and payable by Buyer in accordance with the schedule set forth in Section 3. 
    2. If Buyer cancels a Custom Order by the earlier of 30 days after the date of this Agreement or the day immediately prior to the day that Seller begins to work on the Custom Order, Seller shall retain 50% of the Custom Order Deposit as liquidated damages, and if Buyer cancels a Custom Order under this Agreement at any time after such time, Buyer shall retain 100% of the Custom Order Deposit as liquidated damages. The parties agree that the percentages of the Custom Order Deposit to be retained by Seller in the event of cancellation by Buyer represents a reasonable estimate of Seller’s cultivation costs, overhead, reasonable profit margin, and the cost and administration of the destruction and disposal of the Custom Products. The agreements of the parties contained in Section 9 shall apply with equal force to this Section 14.b. 
    3. Once Custom Products have been produced by Seller, all sales are final and no returns will be accepted for replacement or refund under any circumstances.
  15. Confidentiality.  The terms of this Agreement, including the pricing information contained herein, shall be maintained as confidential by Buyer and shall not be disclosed to any third party. 
  16. Force Majeure.  Seller shall have no liability for a delay or failure to deliver any products if such delay or failure is due to conditions beyond Seller’s reasonable control including, without limitation, by reason of frost, hail, floods, wind, heat, pests, pesticides, funguses, viruses, other acts of God, fire, strike or other difference with workmen, shortage of utility, facility or labor, damage by the elements or drought, unavoidable casualty, any governmental order, state of war, or act of terrorism.
  17. Modifications; Severability; Waiver.  This Agreement may not be amended or modified except by a written agreement signed by both parties.  Any waiver of any breach of any term or condition contained herein or default hereunder shall be in writing and no such waiver shall operate as a waiver of any subsequent breach or default.  If any provision of this Agreement is held invalid or unenforceable, such provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable. 
  18. Assignment.  Buyer shall not assign or transfer this Agreement, in whole or in part, without the prior written consent of Seller. 
  19. Notice.  Any notice to be given hereunder shall be deemed to be properly given if personally delivered, sent via facsimile with confirmation of delivery, or mailed, postage prepaid, with return receipt requested to the address or facsimile number specified in the Sales Agreement or at such other address or facsimile number as may be specified in writing from time to time.
  20. Attorney’s Fees.  In the event of any action or proceeding arising under or relating to this Agreement, the prevailing party shall be entitled to recover all costs and fees (including without limitation, reasonable attorneys’ fees based on market rates and costs) incurred by such party from the non-prevailing party, including any post-trial or appellate proceeding relating thereto.
  21. Governing Law; Dispute Resolution.  This Agreement shall be interpreted, construed and governed by the laws of the State of California, without regard to any conflict of laws principles.  The parties shall attempt to settle any dispute hereunder in a mutually agreeable manner upon written notice of a dispute from one party to the other.  Except with respect to claims seeking injunctive relief or other equitable relief, any dispute arising out of or relating to this Agreement or a breach hereof that is not settled by the parties within 30 days of such notice shall be determined by binding arbitration in Kern County, California, before one (1) JAMS arbitrator.  The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules.  Judgment on the arbitrator’s award may be entered in any court having appropriate jurisdiction.  The parties will share equally the administrative costs of the arbitration and the arbitrator’s fees. 
  22. LIMITATION OF LIABILITY.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, REGARDLESS OF THE FORM OF ACTION, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, AND/OR USE OF THE PRODUCTS, PLANTING AND CULTURAL COSTS, DELAY OR DOWNTIME, AND CLAIMS OF THIRD PARTIES.  BUYER AGREES THAT BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH BY SELLER OF ANY PROVISION OF THIS AGREEMENT SHALL BE TO PROVIDE SUBSTITUTE OR REPLACEMENT PRODUCTS (OR, AT SELLER’S OPTION IN ITS SOLE DISCRETION, A REFUND) FOR UP TO 3% OF THE TOTAL PRODUCTS ORDERED WITHOUT FURTHER LIABILITY.BUYER AGREES THAT THE REFUND OF ANY PORTION OF THE PRICE PAID FOR THE PRODUCTS WILL NOT CAUSE THIS REMEDY TO FAIL OF IT ITS ESSENTIAL PURPOSE.

P.O. Box 279, Wasco, CA 93280 - 661-758-4777

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