bio365 Terms and Conditions of Sale
These terms and conditions govern the sale of Products (“Product or Products”) and provisions of services (“Services”) by bio365 LLC, GreenTree Garden Supply and its affiliates (“Seller” or “Company”). These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. bio365’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
1. Orders: All orders placed by Buyer are subject to acceptance by Seller. Orders may not be canceled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, applicable prices and requested delivery dates of the Products being purchased. Seller shall not be obligated to sell or deliver any quantity of the product(s) covered by this acknowledgement beyond the amount, if any, which in Seller’s sole judgment is available for such purposes at the date proposed shipment of such products(s) to the buyer. Seller reserves the right to modify shipping point and/or schedule and shall not be liable for any failure to ship products as scheduled or from point of origin. Seller reserves the right to set minimums and/or premiums or to reject orders for unusual configurations or amounts. Unless otherwise agreed, all materials will be shipped no later than one year from the date that Seller accepts the purchase order. Seller may in its sole discretion allocate Product among its Customers. Seller may designate certain Products and Services as non-cancelable, non-returnable (“NCNR”) and the sale of such Products shall be subject to any special terms and conditions contained in Seller’s Sales Order Acknowledgement or NCNR Letter, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
2. Prices: The prices of the Products are those prices specified on the front of the invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control. Any volume pricing discounts or special promotional pricing will be re-evaluated with each order and may be revised or revoked without prior notification. Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation.
3. Taxes: Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
4. Payment: Payment may be made by check, ACH, money order, credit card, or wire transfer (all fees are borne by the Buyer). A surcharge of 3% for credit card sales and 3% will be assessed except for sales shipped to these states: Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts and Oklahoma. If payments are not made when due, or if Seller has reason to believe that Buyer has unsatisfactory financial responsibility, Seller may require cash in advance or other payment terms, suspend shipment or cancel this agreement. Where Seller has extended credit to Buyer, terms of payment are noted on the invoice, without offset or deduction unless otherwise noted. On any past due invoice, Seller may impose interest at the rate of two percent [2.0%] per month. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
5. Delivery and Title: Unless it is otherwise indicated elsewhere in this agreement, delivery and sales terms are FOB shipping point.Title to the product(s) and risk of loss shall pass to Buyer upon delivery to a carrier or into Buyer’s transport. Buyer is responsible for disposing of any products consistent with all applicable law and regulation.
Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries.
6. Inspection and Notification: Buyer shall inspect and test the product(s) delivered hereunder for damage, defect or shortage immediately upon receipt at Buyer’s plant or such other location as determined by Buyer and provide Seller notice of any such damage, defect, or shortage within seven (7) days of receipt. [All claims for any cause whatsoever, whether based in contract, negligence or other tort, strict liability, breach of warranty or otherwise, shall be deemed waived unconditionally and absolutely unless Seller receives written notice of such claim not later than forty five (45) days after Buyer’s receipt of the product(s) as to which such claim is made.]
7. Returns, Refunds, and Credits: Returns are not accepted. Seller does not refund the original shipping and handling. Credits that can be used for future purchases are granted on a case-by-case basis and require written authorization from bio365.
Refunds: bio365 offers credit that can be applied against future purchases, not cash refunds. Once Buyer takes possession, Buyer is required to pay Seller, as specified on the invoice. Possession is defined as: freight arranged by the Customer, or picked-up by Customer or Customer's designated agent from any bio365 location or its affiliates; or, if Seller arranges delivery, possession transfers to Buyer as soon as Seller or its designated carrier or agent unloads the Product(s) at customer's destination of choice. No exceptions will be granted, including if Buyer is on Net terms with Seller, and even if the Product(s) is unopened or unused. Seller may, at its sole discretion, issue Buyer a credit memo that can be used against future purchases up to, but not in excess of, the invoice value of the Product(s). Credit memos are valid for 12 months from the date of issuance, after which it is no longer valid. Freight charges will not be credited under any circumstance. Credit memos are only valid if issued in writing.
How to request a Credit: 1. Contact bio365 within 30 days of ship date of item(s) by calling or emailing your designated sales representative, by calling our toll-free number at 1-844-707-3651, or by emailing info@bio365.com. 2. Seller will determine, at its sole discretion, whether to issue a credit memo in full or in part. 3.If credit memo is approved, bio365 will issue a credit within fourteen (14) business days. 4. Seller will inform Buyer in writing that a credit memo has been issued, and for what amount.
8. Limited Warranty: Defective or non-conforming product(s) shall be replaced by Seller without additional charge, or in lieu thereof, at Seller’s option. Seller also warrants that it has good and free title to the product(s) and that the product(s) will not infringe any valid claim of any United States patent covering the materials themselves, but the Seller does not warrant against infringement by reason of the use of the materials in combination with other products or in the operation of any process. Seller may discontinue deliveries of any product(s), the manufacture, sale or use of which in its opinion would involve patent infringement. If Seller breaches this warranty, Buyer’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Production (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be returned to Seller, along with acceptable evidence of purchase, within 20 days from date of delivery, transportation charges prepaid. No warranty will apply if the Product has been subject to misuse, neglect, accident, outdoor or improper environmental conditions, or other modifications.
SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT(S), WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS.
9. Limitation of Liabilities: BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, IPR INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS. IN NO EVENT SHALL THE SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES. Any cause of action that Buyer may have against Seller and which may arise under this contract must be commenced within one year after the cause of action has accrued.
10. Hazards and Precautionary Procedures: If requested in writing, Seller shall furnish to Buyer Material Safety Data Sheets including warnings and safety and health information concerning the product(s) and/or the containers for such product(s) sold hereunder. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the product(s) and the containers in which such product(s) is shipped and will manage the product(s) accordingly. Buyer agrees to disseminate such information so as to give warning of possible hazards to persons who Buyer can reasonably foresee may be exposed to such hazards, including but not limited to Buyer’s employees, agents, contractors and customers. Buyer agrees, notwithstanding anything herein to the contrary, to indemnify Seller and its affiliates for any claims made against Seller or its affiliates and for associated damages and expenses (including reasonable attorney’s fees and expenses) to the extent caused by Buyer’s failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly, or to forward such information.
11. Use of Products: Products are intended for use for legal, horticultural cultivation only. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
12. Force Majeure: Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
13. Technical Assistance or Advice: Any Technical information or assistance Seller or any of its affiliates provides, including suggested formulations, equipment, techniques and recommendations, is given only as an accommodation to the Buyer and accepted at Buyer’s risk and is not a warranty or a specification. Buyer agrees that Buyer is responsible to test Seller’s product(s), technical assistance and information to determine their suitability for Buyer’s intended uses and applications. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
14. Data Collection and Usage: Pursuant to applicable data protection laws, all Prospective and actual Buyers are hereby notified that the Company collects, processes and uses certain corporate, cultivation, business model, and personal and professional information about the Prospect or Customer for the legitimate purpose of implementing, administering and managing the Company’s products and services. Information may include the Prospect, Participant’s and/or Customer name, corporate and delivery addresses, email addresses and telephone number, social media accounts, job titles, cultivation processes, environmental conditions, amendments, operating procedures, technical specifications, results, laboratory analyses, business model, financial results, product performance, and other information directly or indirectly divulged by the Prospect or Buyer/Customer to the Company (“Data”). In granting Free or Paid Trial, Consulting Services, or Sale of Product, the Company will collect, process, use, disclose and transfer (collectively, “Processing”) Data for purposes of implementing, administering and managing the Company’s products and services. The Company may further use Data to improve or optimize its Products or Services, or to develop future products or services. The Company’s legal basis for the collection and processing of Data is the Company’s legitimate business interests of managing the Prospect or Buyer/Customer, complying with its contractual and statutory obligations, as well as the necessity of the Processing for the Company to perform its obligations under the Agreement. The Prospect’s or Buyer’s/Customer’s refusal to provide Data would make it impossible for the Company to perform its obligations and may affect the Prospect’s or Buyer’s/Customer’s ability to receive or utilize the Company’s products or services. As such, by accepting the Company’s products or services, whether free or paid, the Prospect or Buyer/Customer voluntarily acknowledges the Collection, Processing and Usage of Data as described herein.
15. General: No waiver by either party or any breach of other terms or conditions herein contained shall be construed as a waiver of any succeeding breach of the same or other terms and conditions. (a) The laws of the State of New York will exclusively govern any dispute between Seller and Buyer, (b) Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successor and assigns, (c) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. This agreement consists only of the terms and conditions set forth herein. Any modifications must be in writing and signed by both parties.