Plant Materials Order

Plant Materials Order

Parties and Recitals

This Plant Materials Order (the Agreement) is entered into between Purchaser: and Supplier: .

WHEREAS, Purchaser desires to purchase and receive delivery of certain plant materials for use in landscaping, restoration, or other horticultural purposes; and

WHEREAS, Supplier is engaged in the propagation, supply and delivery of nursery stock and related planting materials and represents that Supplier can provide the plant materials described in this Order consistent with industry standards; and

WHEREAS, the parties desire to set for their mutual rights and obligations regarding the ordering, delivery, acceptance, payment, and limited warranty of plant materials.

Order Summary

From to . Supplier will use commercially reasonable efforts to meet this schedule.

Scope of Work

Itemized Order

Complete the rows below for each line item. Unit prices are exclusive of sales or use tax unless indicated otherwise.

Payment Terms

Purchaser shall pay a deposit of (deposit) upon execution of this Order. The remaining balance shall be due within days after delivery, unless otherwise agreed in writing.

Late payments shall accrue interest at or the maximum lawful rate, whichever is less. Purchaser is responsible for any collection costs and reasonable attorneys' fees incurred by Supplier to collect overdue amounts.

Check    Wire Transfer    Credit Card (may incur fee)

Term and Termination

This Order is effective as of the Effective Date: and shall remain in effect until completion of delivery and acceptance of all ordered materials or until terminated in accordance with this section.

Either party may terminate this Order for material breach if the breaching party fails to cure within days after written notice. Purchaser may cancel an order prior to shipment subject to reasonable cancellation and restocking charges, including any unrecoverable propagation costs.

Delivery; Inspection; Risk of Loss

Delivery terms are FOB Supplier's nursery unless otherwise agreed in writing. Risk of loss passes to Purchaser upon tender to the carrier or upon delivery to Purchaser's site if delivered by Supplier. Title passes upon full payment unless otherwise agreed in writing.

Purchaser shall inspect plant materials upon delivery and must notify Supplier in writing within days of visible nonconformance to allow for replacement or credit. Failure to provide timely notice constitutes acceptance.

Warranties and Limitation

Supplier warrants that plant materials shipped under this Order will, at the time of shipment, conform to generally accepted nursery industry standards for the stated grade and species and will be free from known contagious or infectious diseases and pests. This limited warranty extends for days following delivery.

EXCEPT FOR THE EXPRESS WARRANTY ABOVE, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT PERMITTED BY LAW. Purchaser's sole remedy for breach of the express warranty shall be, at Supplier's option, replacement of nonconforming materials or refund of the purchase price of those materials. Supplier shall not be liable for consequential, incidental, or special damages.

Confidentiality

"Confidential Information" means nonpublic, business, technical and financial information disclosed by either party that is identified as confidential or that a reasonable person would understand to be confidential under the circumstances. Each party shall: (a) protect Confidential Information of the other using at least the same degree of care it uses to protect its own similar information, and (b) not disclose such information to third parties except to employees, contractors or advisors who have a need to know and are bound by confidentiality obligations no less restrictive than those in this Agreement.

Confidential Information does not include information that is or becomes publicly available through no breach of this Agreement, independently developed without use of the other party's Confidential Information, or rightfully received from a third party without restriction. Remedies at law may be inadequate for breach; the non-breaching party shall be entitled to equitable relief in addition to any other remedies.

Force Majeure; Assignment

Neither party shall be liable for delay or failure to perform due to causes beyond its reasonable control, including acts of God, extreme weather, fire, strikes, pandemics, governmental actions, or shortages of plant material. A force majeure event suspends performance for the duration of the event. Neither party may assign this Order without the prior written consent of the other, except that Supplier may assign receivables.

Governing Law; Entire Agreement

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflicts of law principles.

This Order, together with any attached schedules, purchase orders and acknowledgements expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral. Any modification must be in writing and signed by authorized representatives of both parties.

Notices and Contacts

Acknowledgement and Order Acceptance

This Order shall become binding upon Supplier's written acceptance or Supplier's commencement of performance. Supplier reserves the right to reject orders for materials unavailable due to crop failure or other causes; in such event Supplier will promptly notify Purchaser and refund any deposit or offer reasonable substitution if agreed by Purchaser.

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