CULTIVATOR TERMS & CONDITIONS
PNC-Phinest Nursery Company, LLC
LICENSED CULTIVATOR TERMS AND CONDITIONS
APPLICATION AND ENTIRE AGREEMENT
1. These terms and conditions will apply to the purchase of Plants detailed in the Sales Order, which is incorporated by reference into this agreement, by the Buyer from PNC-Phinest Nursery Company, LLC (PNC), a California limited liability company, with its principal place of business at 135 Main Ave, Unit B, Sacramento, California, Sacramento County, 95838 (we or us).
2. These terms and conditions will be accepted when (1) Buyer accepts them or the Sales Order, (2) pays any applicable Deposit, or (3) from the date of any delivery of the Plants (whichever happens earlier) and will constitute the entire agreement between PNC and Buyer.
3. These Terms and Conditions and the Sales Order (together, the Contract) apply to the purchase and sale of any Plants between PNC and Buyer.
4. These Terms and Conditions supersede any prior terms and conditions between Buyer and PNC.
GOODS
5. The description of the Plants is set out in the Sales Order, which is intended as a guide, as is any advice or representation relating to the use or condition of the plants. The description in the sales order is not intended to serve as a promise, guarantee, or warranty.
6. In accepting the Sales Order, Buyer acknowledges that Buyer has not relied, or were induced to act, upon any statement or other representations about the Plants by PNC.
7. Buyer acknowledges that it will not own any rights in PNC’s cannabis strain genetics, or in any strains derived from them, and will not utilize PNC’s cannabis strains or modify the strains genetics in an attempt to acquire any rights in the cannabis strains or in its genetics.
8. Buyer acknowledges PNC’s exclusive right, title and interest in and to the strains and strain genetics and shall not do any act which impairs the same. Buyer, or its affiliates, shall not represent that it/they has any ownership or other rights in the strains or its genetics and acknowledge that Buyer’s use of the strains will not create in Buyer’s favor any right, title or interest in or to the strains or its unique genetics
9. Furthermore, Buyer will not introduce any cannabis clones, immature plants, or genetic material derived therefrom into the commercial cannabis market, or otherwise sell, transfer, donate or give control and possession of such clones, plants, and/or genetic material to other licensees, buyers, individuals or entities without the express written consent of PNC. Buyer will however cultivate derived clones to maturity, harvest, and introduce any cannabis, cannabis goods and products derived from mature plants into the commercial cannabis market
10. Buyer shall notify PNC in writing of its intent to transfer, sell, or donate any clones, plants, or genetic material to any other licensee, buyer, individual or entity and PNC may deny or consent to this request and may set forth certain conditions to Buyer that must be met before this request is granted. In the event that PNC does not reply to such requests from Buyer it shall be treated as a denial of that request and if a transfer is made by Buyer, then that act shall constitute a material breach of this agreement.
11. It acknowledged that PNC’s cannabis clones, plants, strains, genetic material and intellectual property are extremely valuable to its business, reputation, and goodwill and any attempt by Buyer to interfere with PNC’s rights, title or interest in such by unjustly or unreasonably possessing, retaining, transferring, or conveying its clones, plants, strains, genetic material or intellectual property, such that it falls outside the scope of rights granted to Buyer in this Agreement, constitutes a MATERIAL BREACH and the harm caused by such breach is incapable or difficult of estimation, therefore in the event that Buyer commits such a Material Breach it hereby agrees to pay to PNC $10,000.00 as LIQUIDATED DAMAGES, which both parties agree represents a reasonable estimate of just compensation to account for the costs and expenses that PNC would incur in the event of such a breach. Both parties also agree and understand that no part of such amount represents a penalty against Buyer.
PRICE
12. The price (Price) of the Plants is described in the Sales Order, or may be some other price that was agreed upon in writing.
13. PNC reserves the right to increase the price, after the sales order is accepted, but before delivery is made, if PNC incurs any additional costs or price increases beyond our control including, but not limited to, material costs, labor costs, alteration of exchange rates or duties, or changes to delivery rates.
14. Any increase in the Price, as described above, will only take place after we have informed you about it.
15. You may be entitled to discounts. Any and all discounts will be at our discretion.
16. The Price is exclusive of fees for packaging and transportation/delivery.
17. The Price is exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
CANCELLATION AND ALTERATION
18. The Sales Order, including price, is valid for 30 days from the date reflected on the sales order unless expressly withdrawn by PNC, or if expressly rejected by Buyer.
19. After Buyer accepts a sales order, Buyer may cancel the order and agreement by providing written notice of at least six (6) months before the scheduled delivery date. In the event Buyer does not cancel the agreement before this deadline, and subsequently defaults, Buyer shall forfeit the Deposit and remain subject to all other legal and equitable remedies available to us.
PAYMENT AND DEPOSIT
20. Unless otherwise agreed upon, Buyer must pay a deposit (Deposit) of 25% of the total amount set forth in the Sales Order.
21. Payment of the Deposit constitutes acceptance of this agreement, which secures and finalizes your order.
22. The Deposit is due on a date (Deposit Due Date) agreed upon by us, the Parties.
23. If the Deposit is not fully paid on or before the Deposit Due Date, PNC reserves the right to cancel the Sales Order without notice to Buyer.
24. Once Buyer’s order is accepted, PNC will invoice Buyer for the Price either:
a. On or at any time after delivery of the Plants; or
b. Upon delivery, when and where the Plants are to be collected by you.
25. Buyer must pay the Price within 30 days of the date of PNC’s invoice or according to any credit terms agreed between us in writing.
26. If Buyer does not pay within the period set out above, PNC will suspend any further deliveries to Buyer and charge Buyer interest at the rate of 1.5% per month, which shall be compounded monthly or the maximum interest rate allowed by applicable law.
27. Other charges (shipping and handling, taxes, royalties and assessments) may be added into our invoice. If the shipping and handling cost is advanced, it will be billed to Buyer at cost and shall be due when invoiced.
28. All payments must be made in US Dollars unless otherwise agreed in writing between us.
29. Both parties must pay all amounts due under these Terms and Conditions in full, neither party is entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
DELIVERY
30. PNC will arrange for the delivery of the Plants on the date specified in the Sales Order, if any, or on another date we agree to in writing.
31. PNC will arrange for the delivery of the Plants to the address specified in the Sales Order, if any, or to another location we agree to in writing.
32. If Buyer does not specify a delivery address or if we both agree, Buyer must collect the Plants from our premises.
33. If Buyer does not take delivery of the Plants PNC may, at our discretion and without prejudice to any other rights:
a. Store the Plants and assess fees to Buyer for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and/or
b. Make arrangements for the redelivery of the Plants and will charge Buyer for the costs of such redelivery; and/or
c. After 10 business days, resell or otherwise dispose of part or all of the Plants and charge Buyer for any discrepancy between our agreed upon price and the price of the Plants, if the Plants are sold at a price below our agreed upon price Buyer shall be responsible for reimbursing PNC for the difference.
34. Any dates quoted for delivery are approximate only. We will not be liable for any delay in delivery of the Plants that is caused by circumstances beyond our control, including but not limited to, flood, drought, fire, frost, hail, contamination, and inventory errors.
35. If Buyer is not able to take delivery of the Plants as agreed upon, and if redelivery is not possible, Buyer must make arrangements to have the Plants collected from PNC’s premises, after PNC provides notice. PNC can charge Buyer for all associated costs including, but not limited to, storage and insurance.
36. PNC can deliver the Plants by installments, which will be invoiced and paid for separately. Each installment is a separate contract. Any delay in delivery or defect in an installment will not entitle Buyer to cancel any other installment.
INSPECTION AND ACCEPTANCE OF GOODS
37. Buyer must inspect the Plants at delivery and before taking title or possession. Acceptance of the Plants occurs once this inspection is complete, or after five (5) days from the date of taking delivery.
38. If Buyer identifies any damages, defects or shortages, after taking title or possession, you must inform PNC in writing within 10 days of delivery, providing details.
39. Unless otherwise agreed to, PNC will only accept returns of damaged or defective Plants if, after inspection, we conclude that the Plants are indeed damaged or defective.
40. If returned plants are damaged or defective, PNC will, as appropriate, either replace, substitute, or refund the purchase price, and associated fees.
41. In cases where damage or loss to Plants occurs during shipment and transplanting. PNC will replace up to 2% of any such losses.
42. To be eligible for a replacement, substitute, or refund you must comply with the provisions above, otherwise we will be under no liability or further obligation in relation to the Plants, specifically if:
a. If Buyer fails to provide notice as set above; and/or
b. Buyer makes any further use of such Plants after giving notice relating to damages and shortages; and/or
c. The defect arises because Buyer did not follow our oral or written instructions including, but not limited to, regarding the storage, use, and maintenance of the Plants; and/or
d. The defect arises from normal wear and tear of the Plants; and/or
e. The defect arises from misuse, negligence, willful damage or any other act by Buyer, Buyer’s employees, or agents or any third parties.
43. Buyer bears the risk and cost of returning the Plants.
RISK AND TITLE
44. The risk in the Plants will pass to Buyer once delivery has been accepted
45. Title to the Plants will not pass to Buyer until we have received payment in full (in cash or cleared funds) for: (a) the Plants, and/or (b) any other Plants or services that we have supplied to Buyer.
46. Until title to the Plants has passed to Buyer, Buyer must (a) hold the Plants on a fiduciary basis as our bailee, exercising a reasonable degree of care; and/or (b) store the Plants separately and not remove, deface or obscure any identifying mark or packaging on the Plants; and/or (c) keep the Plants in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
47. As long as Title to the Plants has not passed on to Buyer and if they have not been resold, or irreversibly incorporated into another product PNC can ask Buyer to return the Plants to PNC.
TERMINATION
48. PNC can terminate the sale of Plants under the Contract where:
a. Buyer commits a material breach of its obligations under these Terms and Conditions;
b. Buyer is or becomes or, in our reasonable opinion, is about to become the subject of a bankruptcy order or insolvent.
DEFAULT AND REMEDIES
49. If Buyer becomes insolvent, fails to make timely payments, or fails to perform any other obligations imposed by these Terms and Conditions or by law, Buyer shall be in default and PNC may immediately enforce any and all remedies provided by law and by the terms of this Agreement.
50. Both parties (PNC and Buyer) shall have all remedies afforded to each under this Agreement, the Uniform Commercial Code, and applicable laws of the State of California.
LIMITATION OF LIABILITY
51. PNC’s liability under the Contract will be limited to the terms of this agreement.
52. PNC warrants that the Plants are of the variety stated on the Sales Order and to be in good living condition at the time of shipment or delivery. Subject to the terms of the agreement, all other warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
53. THE PLANTS ARE PROVIDED “AS-IS”. PNC DOES NOT WARRANT THAT THE PLANTS ARE OF MERCHANTABLE QUALITY OR THAT THEY CAN BE USED FOR ANY PARTICULAR PURPOSE. AFTER DELIVERY OF THE PLANTS, PNC WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES SUFFERED BY BUYER DUE TO ISSUES WITH OR RELATING TO THE PLANTS, INCLUDING, BUT NOT LIMITED TO, GENETIC MUTATIONS OR DISEASE ISSUES.
54. If PNC does not deliver the Plants, our liability is limited by the terms of this agreement, and PNC will assume responsibility for the costs and expenses incurred by Buyer in obtaining replacement Plants of similar description and quality, less the price of the Plants.
55. PNC’s total liability will not, in any circumstances, exceed the total amount of the Price payable by Buyer.
56. PNC will not be liable (whether caused by our employees, agents or otherwise) in connection with the Plants, for:
a. Any indirect, special or consequential loss, damage, costs, or expenses; and/or
b. Any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third-party claims; and/or
c. Any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; and/or
d. Any losses caused directly or indirectly by any failure or breach by Buyer in relation to Buyer’s obligations; and/or
e. Any loss relating to the choice of Plants and how they will meet Buyer’s purposes or the use by Buyer of the Plants supplied.
57. The exclusions of liability contained within this clause will not exclude or limit PNC’s liability for death or personal injury caused by PNC’s negligence; or for any matter for which it would be illegal for us to exclude or limit our liability; and for fraud or fraudulent misrepresentation.
INTERPRETATION AND PAROL EVIDENCE
58. This writing is intended to the final expression of the agreement concerning the matters contained herein, and is also intended as a complete and exclusive statement of the terms of the agreement.
COMMUNICATIONS
59. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorized officer of that party).
60. Notices will be deemed to have been duly given:
a. When delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
b. When sent, if transmitted by fax or email and s successful transmission report or return receipt is generated;
c. On the fifth business day following mailing, if mailed by regular mail; or
d. On the tenth business day following mailing, if mailed by airmail.
e. All notices under these terms and conditions must be addressed to the most recent address, email address or fax number notified to the other party.
CIRCUMSTANCES BEYOND THE CONTROL OF EITHER PARTY
61. Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
NO WAIVER
62. No waiver by PNC of any breach of these Terms and Conditions by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
SEVERANCE
63. If one or more of these Terms and Conditions is found to be unlawful, invalid, or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
LAW AND JURISDICTION
64. This Agreement shall be governed by and interpreted according to the law of California without giving effect to any choice or conflict of
65. In the event of any Claim arising out of or relating to any performance required under this Agreement, or the interpretation, validity, or enforceability hereof, the Parties shall use commercially reasonable efforts and act in good faith to settle the claim. If the claim cannot be settled through negotiation within a period of seven (7) days, the parties agree to submit any and all claims, or any dispute related in any way to this Agreement and the services rendered hereunder, to binding arbitration before JAMS. The arbitration shall be held in accord with the JAMS then-current Streamlined Arbitration Rules & Procedures. The arbitrator shall be either a retired judge, or attorney who is experienced in commercial contracts, licensed to practice law in California, and selected pursuant to JAMS rules. The Parties expressly agree that any arbitration shall be conducted in Sacramento California. The arbitrator shall apply California substantive law in the adjudication of all claims. Notwithstanding the foregoing, a party may apply to Sacramento County Superior Court for a provisional remedy, including but not limited to a temporary restraining order or preliminary injunction, which shall not operate as a waiver of the agreement to submit a dispute to binding arbitration pursuant to this provision. The parties agree to exclusive jurisdiction in the Sacramento County Superior Court for resolution of any disputes or issues that may be resolved in a court of law. In no event shall a dispute or issue arising out of or relating to this agreement be brought in Federal Court. After a demand for arbitration has been filed and served, the Parties may engage in reasonable discovery in the form of requests for documents, interrogatories, requests for admission, and depositions. The arbitrator shall resolve any disputes concerning discovery. The arbitrator shall award costs and reasonable attorney fees to the prevailing party, as determined by the arbitrator, to the extent allowed by California law. The arbitrator’s decision shall be final and binding on the parties. The arbitrator’s decision shall include the arbitrator’s findings of fact and conclusions of law and shall be issued in writing within thirty (30) days of the conclusion of the arbitration proceedings. The prevailing party may submit the arbitrator’s decision to the Sacramento County Superior Court for an entry of judgment.
Buyer
_____________________________
Company Name
_____________________________
Name (Printed, Title)
_____________________________
Name (Signature)
_____________________________
Date
Disclaimer
The content of this document is intended for the original recipient and is only to be read and signed by that recipient. Signing this document certifies that you have read, verified, and understand the content of this document.