General Terms and Conditions of Sale

1. Applicability.

 

(a) These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the goods ("Goods") by Up Country Gardens, Inc., a Georgia corporation ("Seller") to the buyer named on the reverse side of these Terms or on the concomitant order, invoice or sales confirmation ("Buyer"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b) The accompanying order, confirmation of sale or invoice (the "Sales Confirmation" and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.

(c) These Terms applies to:

     (i) “Business Customers” are legal persons that purchase the Goods (i) for “Business Use” which means that the Goods are used at Buyer’s business address, in its premises or place of operation which can be supervised public spaces such as restaurants, pools, beaches, hotels, multi family or rental units, and corporate environments, or (ii) for reselling purposes (“Reseller”), but in that case certain terms, such as the limited warranty set forth in the Section 11, would be applicable only to the end user.

(d) BY PLACING AN ORDER FOR GOODS, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.

 

2. Delivery. 

(a) The goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.

(b) Unless otherwise agreed in writing by the parties in the Sales Confirmation, Seller shall make the Goods available to Buyer at Seller's location, i.e., 1610 Redi Rd, Cumming, GA 30040 (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. 

(c) Sales Confirmation shall provide whether Seller or Buyer make arrangements for the shipping of the Goods. If Seller organizes the shipping of the Goods from Delivery Point, Buyer shall pay for such shipping. If Buyer makes arrangements for the shipping, its commercial carrier shall pick up the Goods within [seven (7)] days of Seller's written notice that the Goods are available at the Delivery Point, and in that case, Buyer and its carrier shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.

(d) Seller may, in its sole discretion, without liability or penalty, make available partial quantities of Goods to Buyer. Each quantity available will constitute a separate payment, and Buyer shall pay for the units available whether such availability is in whole or partial fulfillment of Buyer's purchase order.

(e) If for any reason Buyer or its carrier fails to pick up any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been available at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).

 

3. Non-Delivery. 

(a) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

(b) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the nondelivery within [two (2)] days of the date when the Goods would in the ordinary course of events have been received.

(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

 

4. Order & Quantity.

(a) Buyer’s order shall contain: the precise designation, the accurate color, and the quantity for each of the Goods ordered.

(b) If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.

 

5. Shipping Terms.

(a) For Business Customers. Delivery shall be made FOB at Delivery Point unless the parties agrees otherwise in the terms on the face of the Sales Confirmation and provided that Seller or Buyer contracts with a carrier for the transportation and Buyer pays for such transportation until the final place of delivery.

(b) International shipping. Seller may, at its sole discretion, agree to ship Goods internationally; such shipping terms shall be provided in the Sales Confirmation. 

 

6. Title and Risk of Loss. Title and risk of loss pass to Business Customers upon delivery of the Goods at the Delivery Point, unless otherwise agreed in the Sales Confirmation. Title and risk of loss pass to Residential Customers upon delivery of the Goods at the shipping address.

 

7. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

 

8. Inspection and Rejection of Nonconforming Goods. 

(a) Buyer shall inspect the Goods immediately upon receipt. Buyer will be deemed to have accepted the Goods and all Goods conform with the order unless Buyer notifies Seller in writing, within two (2) days from the date of receipt, of any Nonconforming Goods and furnishes such written evidence or other documentation as required by Seller, including but not limited to photos. Buyer shall inspect packaging and Goods, verify the quantity, and note any damaged box. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. Carriers shall systematically request that Buyer execute the delivery receipt upon delivery of the Goods. Any Nonconforming Good noticed at the time of the delivery shall be noted by Buyer on such delivery receipt. Any note made on a bill of lading, as opposed to a note made on a delivery receipt, shall have no effect for the purpose of this Section 8.

(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller may, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility located at 1610 Redi Rd, Cumming, GA 30040. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. 

(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

(d) Return of Conforming Goods. Sales of Goods to Business Customers are final. Business Customers may not return, exchange, or cancel a sale of Goods that are conform to products identified in Buyer's purchase order, and product's label or packaging correctly identifies its contents ("Conforming Goods”). 

 

10. Payment Terms.

(a) Unless otherwise agreed in writing in the Sales Confirmation, Buyer shall pay all invoiced amounts due to Seller on receipt of Seller's invoice. If a Price Adjustment Before Shipping occurs, Seller will send a revised or additional invoice for payment of such adjustment; Buyer shall pay the revised or additional invoice upon the same conditions as provided in the foregoing sentence.

(b) Unless otherwise agreed in writing in the Sales Confirmation, full payment of the invoiced amounts for the Goods purchased is a condition to Seller shipping the Goods or making the Goods available to Buyer or its carrier. Unless otherwise agreed in writing in the Sales Confirmation, Buyer shall make all payments hereunder by checks, wire transfer, Mastercard, Visa and American Express, or through automated clearing house (“ACH”) transfers and in US dollars. However, Seller will not accept payments made via international credit cards. Preferred method of payment is ACH. Fermob USA requests the clients ACH account information {Link here} for all pending fulfillment Sales Orders for automated payment and shipment once the material is in stock and ready to ship within the defined date range as noted in the Sales Order. For clients that do not wish to share ACH payment terms Fermob will collect the balance of the payment immediately and charge a $100 / per week / per pallet storage fee. Contract clients will be charged a 3% fee for credit card use.

(c) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. 

(d) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.

(e) Resellers are responsible for all credit risks regarding, and for collecting payment for, all Goods sold to third parties (including end users), whether or not Reseller has made full payment to Seller for the Goods. The inability of Reseller to collect the purchase price for any Good does not affect Reseller’s obligation to pay Seller for any Good. Retailers please refer to your Retailer Guide for payment terms.

 

11. Limited Warranty. 

THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THIS LIMITED WARRANTY CAN ALSO BE FOUND AT WWW.FERMOB.COM/US/WARRANTY.

 

12. Resellers' acts.

(a) Resellers shall not make any representations, warranties, guarantees, indemnities, similar claims, or other commitments: (i) actually, apparently, or ostensibly on behalf of Seller, or (ii) to any end user regarding the Goods, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Seller to Reseller.

(b) Resellers shall contact Seller prior to reselling any Goods on any online marketplace. 

(c) No repackaging or rebranding of Fermob Products is permitted. Extra packaging is permitted

 

13. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

 

14. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

 

15. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

16. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

17. Intellectual Property.

(a) “Intellectual Property Rights” shall mean all industrial and other intellectual property rights comprising or relating to: (i) patents, (ii) trademarks, (iii) internet domain names, (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, (v) trade secrets, and (vi) all industrial and other intellectual property rights, in each case whether registered or unregistered.

(b) Seller hereby grants to Reseller a non-exclusive, non-transferable, and non-sublicensable license to use Seller’s trademarks in the U.S. during the Agreement solely on or in connection with the promotion, advertising, and resale of the Goods. Reseller will promptly discontinue the display or use of any trademark to change the manner in which a trademark is displayed or used with regard to the Goods when requested by Seller. Other than the express licenses granted herein, Seller grants no right or license to Reseller, by implication, estoppel, or otherwise, to the Goods or any Intellectual Property Rights of Seller. 

(c) Subject to the express rights and licenses granted by Seller herein, Reseller acknowledges and agrees that: (i) any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (ii) Reseller shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement; (iii) any goodwill derived from the use by Reseller of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; (iv) if Reseller acquires any Intellectual Property Rights in or relating to any Good purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either Party; and (v) Reseller shall use Seller’s Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Seller.

(d) Reseller shall not: (i) take any action that may interfere with any of Seller’s Intellectual Property Rights, (ii) challenge any right, title, or interest of Seller related to Seller’s Intellectual Property Rights, (iii) make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights, (iv) register or apply for registrations, anywhere in the world, for Seller’s trademarks or any other trademark that is similar to Seller’s trademarks or that incorporates Seller’s trademarks in whole or in confusingly similar part, (v) use any mark, anywhere, that is confusingly similar to Seller’s trademarks, (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller’s trademark, (vii) misappropriate any of Seller’s trademarks for use as a domain name without prior written consent from Seller; and (viii) alter, obscure, or remove any of Seller’s Intellectual Property Rights notices placed on the Goods, marketing materials, or other materials that Seller may provide.

(e) On expiration or earlier termination of this Agreement, Reseller’s rights under this Section 18 cease immediately, and Reseller shall immediately cease all display, advertising, promotion, and use of all of Seller’s trademarks and shall not thereafter use, advertise, promote, or display any trademark, trade name, or product designation or any part thereof that is similar to or confusing with Seller’s trademarks or with any trademark, trade name, or product designation associated with Seller or any Goods.

 

18. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as pandemics or epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within [fourteen (14)] days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of [fourteen (14)] days following written notice given by it under this Section 17, either party may thereafter terminate this Agreement upon [seven (7)] days' written notice.

 

19. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

 

20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

 

22. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.

 

23. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the County of Forsyth, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

 

24. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by email with delivery receipt, personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

25. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

26. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction, and Survival.