Terms & Conditions of Sale
Note: Ball Terms & Conditions of Sale are country/region specific. The following Terms & Conditions of Sale apply to product sold within the United States and Canada.
Acceptance of Terms
These terms and conditions shall govern orders for seeds, bulbs, plants, supplies and other materials (merchandise) placed with Seller. All negotiations with sales representatives or other agents of Seller are merged herein. No modification of these terms and conditions shall be effective unless in writing signed by Seller. Placement of the order shall constitute Purchaser’s acceptance of these terms and conditions. All orders are subject to acceptance by Seller at our offices in West Chicago, Illinois.
Limitation of Warranty
Seller warrants, to the extent required by law, that merchandise conforms to the description appearing in Seller’s catalog and on container labels, within recognized tolerances. SELLER MAKES NO OTHER OR FURTHER WARRANTY, EXPRESS OR IMPLIED. ALL OTHER OR FURTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. Certain merchandise may be separately warranted by the manufacturer. Seller does not adopt or ratify any manufacturer warranties, express or implied, and Seller shall have no liability thereunder. Seller does not adopt or ratify any manufacturer warranties, express or implied, made by Purchaser upon resale of the merchandise, and Seller shall have no liability thereunder.
Limitation of Remedy
PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE REFUND OF THE PURCHASE PRICE. SELLER’S LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE AMOUNT OF THE PURCHASE PRICE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
Merchandise is not intended for immediate or eventual sale to commercial growers, truck farmers, market gardeners or others who sell fruit or vegetables to the end user.
ANY CLAIM WHICH PURCHASER MAY HAVE AGAINST SELLER ARISING OUT OF OR RELATING TO THE SALE OF THE MERCHANDISE SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, SAID ARBITRATION TO BE VENUED IN COOK OR DUPAGE COUNTIES, ILLINOIS. The laws of several states require arbitration, conciliation or mediation of disputes involving allegedly defective seed before legal action may be taken. Purchaser should contact the State Department Of Agriculture for information. Such laws typically require that a complaint be filed with the State Department Of Agriculture in time to permit inspection of the seed, crops or plants. If such a complaint is filed, a copy must be sent to Seller by registered or certified mail.
Governing Law, Jurisdiction & Venue
The laws of the State of Illinois, including but not limited to the Uniform Commercial Code as adopted therein, shall govern all matters arising out of or relating to Seller’s sale of merchandise. ANY DISPUTE NOT SUBJECT TO ARBITRATION AND ANY ACTION TO ENFORCE AN ARBITRATION AWARD ARISING OUT OF OR RELATING TO THE SALE OF MERCHANDISE HEREUNDER SHALL BE MAINTAINED IN THE STATE OR FEDERAL COURTS LOCATED IN DUPAGE OR COOK COUNTIES, ILLINOIS, AND PURCHASER SUBMITS TO THE JURISDICTION OF AND VENUE IN SAID COURTS.
By accepting merchandise, Purchaser agrees to defend Seller, to hold it harmless and indemnify it from and against any claim or loss asserted by any or all transferees of such merchandise or users of the products of such merchandise who are not notified by Purchaser in writing of Limitation of Warranty, Limitation of Remedy, Mandatory Arbitration, Governing Law Jurisdiction and Venue, and Notice Regarding Seed-Borne Diseases in language substantially equivalent to that contained in these Terms and Conditions of Sale.
All prices are subject to change without notice. The price in effect at time of shipment will prevail. Prices do not include installation; Seller takes no responsibility, and shall have no liability for installation. Additional processing and handling charges may be added.
Payment is due in invoiced currency and in accordance with the terms specified on invoice. In the event of default in the payment of any amount when due, and in addition to all other rights and remedies available to Seller, SELLER SHALL BE ENTITLED TO COLLECT A LATE CHARGE OF 2% PER MONTH (24% PER YEAR) OR THE MAXIMUM RATE ALLOWED BY LAW, WHICHEVER IS LESS, ON ALL AMOUNTS PAST DUE FROM THE DATE DUE UNTIL THE DATE PAID. A FEE OF $25.00 WILL BE CHARGED FOR ANY RETURNED CHECK, DECLINED EFT TRANSACTION OR DECLINED BANKCARD TRANSACTION.
If paying by Pre-Authorized Debit (PAD), or EFT, please note you have waived your right to receive pre-notification of the amount of the PAD and agreed that you do not require advance notice of the amount of PADs before the debit is processed.You have certain recourse rights if any a debit does not comply with these terms. For example, you have the right to receive a reimbursement for any PAD that is not authorized or is not consistent with this PAD agreement. To obtain more information on your recourse rights, contact your financial institution.
Freight & Handling Charges, Inspection, Damaged Goods
The freight and handling charge on Purchaser’s invoice covers shipment of the merchandise to Purchaser’s destination, and replacement or credit for damaged merchandise if the steps listed here are followed. PURCHASER WILL NOT REFUSE OR RETURN GOODS, OR THE RIGHT TO FILE A CLAIM IS LOST AND PURCHASER WILL STILL BE LIABLE FOR THE MATERIAL AND THE FREIGHT. When Purchaser receives shipment: 1) Count all cartons. 2) Inspect all cartons for external damage. 3) Check for open or resealed cartons. 4) Note any damages, shortages, open or resealed cartons on the delivery receipt; the carrier’s representative must also sign the receipt. 5) Open all boxes immediately and inspect for damage such as scorched, frozen or broken plants; material shortages; etc. NOTIFY SELLER IMMEDIATELY IF A SHIPMENT IS DAMAGED. Call the Ball Traffic Department at 800 879-BALL to report the damage and receive details on what is needed to file a claim.
Cancellations for unrooted cuttings must be received at least 30 days prior to scheduled ship date. Cancellations for liners or seed-raised plugs must be received prior to stick or sow date.
Notice & Return
Seller shall have no liability for any defect unless notice is given promptly, not to exceed thirty (30) days after such defect is or should have been discovered. No merchandise may be returned without Seller’s prior written authorization. Requests to return merchandise must be made within ten (10) days after delivery. All returns must be in accordance with Seller’s shipping instructions with freight paid by Purchaser. All requests for return of merchandise must be made to Ball at 800 879-BALL. The Purchaser will also be asked to provide a letter stating the reason for the return. The order number or invoice number must accompany the return in order to expedite the credit. NOTE: No seed will be accepted without prior notification to Ball at 800 879-BALL. Effective immediately, seed that is returned without authorization will not be accepted and credit will not be issued. For all customers in the United States, a FedEx call tag will be issued upon authorization of return. There is a $10.00 freight charge for the FedEx return. Seed must be returned in the original condition within thirty (30) days of the ship date for full credit. No open packages will be accepted. If seed is returned within thirty one (31) to sixty (60) days after ship date, full credit will be given but a 15% restocking charge will be assessed. No credit or replacement will be given for seed returned after sixty one (61) days from our ship date. Because Ball® Controlled Growth seed is perishable and has a shorter shelf life, no returns will be accepted.
Delays, Shortages & Substitutions
Seller shall not be responsible for delays in delivery or for losses resulting from such delays. Seller reserves the right to make partial shipment. In the event of shortages, Seller may substitute such other, similar merchandise as is available.
Varieties described herein may be covered by the Flowering-Only Terms and Conditions of Sale Agreement, United States Plant Patents, United States Plant Variety Protection, Utility Patents, and Plant Breeders' Rights. These varieties may not be reproduced without authorization. The breeder or authorized representative has the right to inspect customers' nurseries during normal business hours to assess compliance with the restrictions on use of protected varieties.
® denotes a U.S. registered trademark and ™ denotes a trademark of Ball Horticultural Company, unless otherwise indicated.
Notice Regarding Seed-Borne Diseases
Seller makes no representation regarding the freedom from seed-borne diseases of the seed sold and disclaims any liability relating to such diseases, whether previously known to exist or not identified until this seed is grown.
EXPORT CONTROL THE COMPANY’S PRODUCTS MAY NOT BE SOLD, DIVERTED, TRANSFERRED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, TO ANY INDIVIDUAL, ENTITY, OR DESTINATION THAT IS SUBJECT TO UNITED STATES OR UNITED NATIONS SANCTIONS PROGRAMS OR EMBARGOES (INCLUDING BUT NOT LIMITED TO OFAC SANCTIONS PROGRAMS AND THOSE LISTED ON OFAC’S “SPECIALLY DESIGNATED NATIONALS” LIST) WITHOUT AN APPROPRIATE EXPORT LICENSE.
FOREIGN CORRUPT PRACTICES ACT EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT IT WILL TAKE NO ACTION IN RELATION TO THIS TRANSACTION THAT WOULD BE IN VIOLATION OF THE APPLICABLE LAWS AND REGULATIONS OF ANY COUNTRY AND THE UNITED STATES OF AMERICA. NO PAYMENTS OF MONEY OR ANYTHING OF VALUE WILL BE OFFERED, PROMISED OR PAID, DIRECTLY OR INDIRECTLY, TO ANY OFFICIALS TO INFLUENCE THE ACTS OF SUCH OFFICIALS TO INDUCE THEM TO USE THEIR INFLUENCE WITH A GOVERNMENT OR AN INSTRUMENTALITY THEREOF, OR TO OBTAIN AN IMPROPER ADVANTAGE.