These Terms & Conditions of Sale (“Terms”) govern all sales of nursery stock, plants, trees, shrubs, flowers, and related nursery products (“Products”) by National Nursery Corporation (“NNC,” “National,” “Seller,” “we,” “us,” or “our”) to any customer, purchaser, contractor, landscaper, nursery, garden center, business, institution, municipality, or other buyer (“Customer,” “Buyer,” “you,” or “your”).

By placing an order with NNC, accepting an order confirmation, making payment, accepting delivery or pickup of Products, or otherwise purchasing Products from NNC, Customer agrees to be bound by these Terms.

Any terms or conditions contained in a Customer purchase order, acknowledgment, vendor form, or other document that are inconsistent with or additional to these Terms are expressly rejected and shall have no effect unless specifically accepted in writing by an authorized representative of NNC.

1. ORDERS AND ACCEPTANCE

1.1 Order Acceptance

All orders are subject to NNC’s acceptance and Product availability. An order shall not be binding upon NNC until NNC has accepted the order or issued an order confirmation, invoice, or other written acknowledgment.

NNC reserves the right to accept or reject any order, in whole or in part, at its discretion.

1.2 Order Confirmation

NNC’s order confirmation, quotation, invoice, or other written sales document may specify Product quantities, sizes, pricing, delivery arrangements, payment terms, and other transaction-specific conditions.

If any transaction-specific terms expressly agreed to in writing by NNC conflict with these Terms, the specific written terms shall control solely with respect to that transaction.

1.3 Customer Purchase Orders

Customer purchase orders may be accepted for administrative purposes only and shall not modify these Terms unless expressly agreed to in writing by an authorized representative of NNC.

Failure by NNC to expressly object to any additional or conflicting provision in a Customer document shall not constitute acceptance of such provision.

2. QUOTATIONS, PRICING AND AVAILABILITY

2.1 Quotations

Unless otherwise stated in writing, quotations are provided for informational purposes and are subject to Product availability and confirmation by NNC.

Unless a different validity period is expressly stated, quotations may be revised or withdrawn by NNC prior to order acceptance.

2.2 Pricing

Prices are subject to change without notice prior to order acceptance.

Unless otherwise stated, quoted prices do not include applicable sales or use taxes, delivery, freight, handling, special packaging, installation, planting, unloading, or other charges.

Customer is responsible for all applicable taxes and governmental charges unless Customer provides a valid exemption certificate acceptable to NNC.

2.3 Availability

All Products are subject to availability and prior sale.

Because nursery inventory is living and seasonal, availability, quantities, sizes, varieties, and condition may change without notice.

NNC reserves the right to cancel or modify all or part of an order when Products become unavailable due to crop loss, weather, disease, pests, damage, regulatory restrictions, supply shortages, or other circumstances beyond NNC’s reasonable control.

3. PRODUCT DESCRIPTION AND NATURAL VARIATION

Customers acknowledge that Products sold by NNC are living and naturally variable.

Product photographs, catalog descriptions, dimensions, sizes, colors, shapes, branching patterns, foliage density, bloom characteristics, and other representations are intended to identify the general type and characteristics of the Product and may not represent the exact Product delivered.

Reasonable variations in size, shape, color, form, maturity, and appearance are inherent characteristics of nursery Products and shall not constitute defects or grounds for rejection.

Unless expressly guaranteed in writing, NNC does not guarantee that Products will be identical to photographs, samples, previous purchases, or other individual specimens.

4. SUBSTITUTIONS

When a specific variety, size, cultivar, or Product becomes unavailable, NNC may contact Customer regarding an alternative Product.

No substitution shall be made where Customer has expressly required a specific Product and NNC has agreed in writing that substitutions are not permitted.

If substitution is authorized or reasonably necessary to fulfill an order, any difference in price shall be reflected on the applicable invoice or order confirmation.

5. SPECIAL ORDERS AND CUSTOM-GROWN PRODUCTS

Special-order, contract-grown, custom-grown, non-stock, antique, discounted, vintage or specially sourced products may be subject to additional deposits, minimum quantities, lead times, payment in full before shipping or special conditions (including non-return).

Unless otherwise agreed in writing:

• Special-order Products may require a deposit before NNC places or begins the order.

• Deposits for specially sourced or custom-grown Products may be non-refundable.

• Customers may not cancel a special or custom order after procurement, production, digging, preparation, or shipment has begun without NNC’s written approval.

• Customer may be responsible for the full cost of Products that have been specially procured, grown, prepared, or otherwise committed specifically for Customer.

Any special conditions will be stated in the applicable quotation, order confirmation, or invoice.

6. ORDER CHANGES AND CANCELLATIONS

Customers shall notify NNC as soon as possible of any requested change or cancellation.

NNC will make reasonable efforts to accommodate cancellation or modification requests; however, approval is not guaranteed.

Orders may not be cancelled without charge after Products have been pulled, tagged, dug, loaded, specially ordered, contract-grown, shipped, or otherwise prepared specifically for Customer.

Approved cancellations may be subject to cancellation, handling, freight, restocking, or other applicable charges.

Special-order, custom-grown, non-stock, or otherwise specially committed Products may be non-cancellable and non-refundable.

7. RESERVATION AND HOLDING OF PRODUCTS

When NNC agrees to tag, reserve, or hold Products for Customer, such Products remain subject to the terms specified by NNC.

NNC may require payment in full or a deposit before reserving Products.

Unless otherwise agreed in writing, Customer is responsible for collecting or accepting delivery of reserved Products within the agreed timeframe.

Products not collected or accepted within the agreed period may be released for resale, and Customers may be responsible for applicable storage, handling, transportation, restocking, or other charges.

8. PAYMENT TERMS

8.1 Payment

Unless otherwise agreed in writing, payment is due at the time of purchase, pickup, or delivery.

NNC may require payment in advance for new customers, special orders, large orders, custom-grown Products, or other transactions determined by NNC.

NNC may accept payment by approved credit card, electronic payment, check, cash, or other payment methods designated by NNC.

8.2 Special Order or Sourced/Brokered Plants

All invoices are payable upon receipt. Special-order items and plants are final sale and are not eligible for return.

8.3 Credit Accounts

Credit terms are available only to customers approved by NNC.

Unless otherwise stated in writing, approved credit accounts are subject to the payment terms stated on the applicable invoice or account agreement.

NNC reserves the right to modify, suspend, or revoke credit privileges at any time.

8.4 Past-Due Accounts

Past-due balances may be subject to a finance or service charge, together with reasonable collection costs, attorneys’ fees, and other expenses incurred in collecting amounts properly owed.

NNC may suspend or cancel pending orders, require cash-on-delivery or advance payment, or revoke credit privileges for accounts that become past due.

8.5 Returned Payments

Customers may be responsible for any applicable bank, processing, or administrative fees associated with returned checks or failed payments.

9. TAXES

Customer is responsible for all sales, use, excise, and other applicable taxes associated with the purchase of Products unless Customer provides NNC with valid documentation establishing an applicable exemption.

NNC reserves the right to verify the validity of any tax exemption documentation.

10. DELIVERY AND FREIGHT

10.1 Delivery Arrangements

NNC may arrange delivery through its own vehicles, independent carriers, common carriers, or third-party transportation providers.

Unless otherwise stated in writing, delivery dates and times are estimates and are not guaranteed.

NNC shall not be liable for delays caused by traffic, weather, transportation conditions, carrier delays, loading conditions, governmental restrictions, or other circumstances beyond NNC’s reasonable control.

10.2 Delivery Site

The customer is responsible for ensuring that the delivery location is reasonably accessible, safe, and suitable for the delivery vehicle and Products.

Customers shall provide accurate delivery instructions and promptly notify NNC of any site restrictions, narrow roads, gates, weight limitations, overhead obstructions, unloading requirements, or other conditions that could affect delivery.

Additional charges resulting from inaccurate information, inaccessible locations, waiting time, re-delivery, special equipment, or other site conditions may be charged to the customer.

10.3 Unloading

Unless otherwise expressly agreed in writing, Customer is responsible for providing appropriate personnel and equipment required for unloading, handling, planting, or placement of Products after delivery.

NNC may refuse to complete a delivery if the delivery location is unsafe or inaccessible.

10.4 Delivery by Third-Party Carrier

When Customer arranges transportation or NNC ships Products through a third-party carrier selected or designated by Customer, the carrier shall be deemed Customer’s agent for transportation purposes to the extent permitted by applicable law.

The customer is responsible for freight charges and for coordinating appropriate transportation equipment.

11. INSPECTION AND ACCEPTANCE

Customers shall inspect Products promptly upon pickup or delivery.

Customer should verify, to the extent reasonably possible:

• Product type and variety;

• Quantity;

• Size;

• Visible condition;

• Packaging or containers;

• Tags and labels; and

• Any visible damage or shortage.

Any visible damage, shortage, incorrect Product, or other apparent discrepancy must be reported to NNC in writing upon pickup and delivery.

Claims not timely reported may be deemed waived to the fullest extent permitted by law.

Acceptance of Products constitutes acknowledgment that the Products were received in reasonably satisfactory condition, except for defects or discrepancies properly documented and reported in accordance with these Terms.

12. CLAIMS FOR DAMAGE, SHORTAGE OR NON-CONFORMING PRODUCTS

Any claim concerning damaged, defective, incorrect, or missing Products must:

1. Be submitted in writing within the applicable claim period;

2. Identify the invoice or order number;

3. Identify the affected Products and quantities;

4. Describe the alleged issue; and

5. Include photographs or other reasonable supporting documentation when requested by NNC.

Customers shall not return Products without prior written authorization from NNC.

NNC may inspect the Products or request photographs, documentation, or other evidence before approving any adjustment.

If NNC determines that a claim is valid, NNC may, at its option:

• Replace the affected Product;

• Issue a credit;

• Refund the purchase price of the affected Product; or

• Provide another commercially reasonable remedy.

NNC’s liability for an approved Product claim shall not exceed the purchase price actually paid for the affected Product.

13. RETURNS

13.1 General Returns

Returns require prior written approval from NNC.

Products must be returned in original, healthy, undamaged, disease-free, and saleable condition, subject to NNC’s inspection and approval.

NNC may impose a restocking fee of 25% on approved returns that are not the result of NNC’s error, damage in transit attributable to NNC, or another issue for which NNC is responsible.

The customer is responsible for return transportation and related costs unless otherwise agreed in writing.

13.2 Non-Returnable Products

Unless otherwise agreed in writing, the following may not be eligible for return:

• Products that have been planted;

• Products removed from their original containers;

• Products that have been altered, damaged, neglected, or improperly handled;

• Products exposed to disease, pests, extreme temperatures, drought, or other adverse conditions after delivery;

• Special-order Products;

• Custom-grown or contract-grown Products;

• Products delivered into areas subject to applicable quarantine restrictions; and

• Products specifically identified as final sale.

13.3 Returned Plant Material

Because plant health may change rapidly after Products leave NNC’s control, NNC reserves the right to inspect returned plant material before determining whether a return, replacement, refund, or credit will be authorized.

14. LIMITED PLANT WARRANTY

NNC warrants, to the extent applicable, that Products will be reasonably healthy and substantially conform to the identified variety, type, and size at the time of pickup or delivery, subject to the natural characteristics and limitations of living plant material.

EXCEPT AS EXPRESSLY PROVIDED IN WRITING, NNC MAKES NO WARRANTY THAT PLANTS WILL SURVIVE, GROW, THRIVE, BLOOM, PRODUCE FRUIT, MAINTAIN A PARTICULAR APPEARANCE, OR REMAIN HEALTHY AFTER DELIVERY OR PICKUP.

Plant survival and performance depend on numerous conditions outside NNC’s control, including but not limited to:

• Soil conditions;

• Planting practices;

• Irrigation;

• Drainage;

• Fertilization;

• Temperature;

• Weather;

• Sunlight;

• Wind;

• Pests;

• Diseases;

• Herbicide or chemical exposure;

• Transportation;

• Handling;

• Installation;

• Maintenance; and

• Local environmental conditions.

Accordingly, unless expressly stated otherwise in a written warranty issued by NNC, no warranty of future survival or performance is provided.

To the maximum extent permitted by applicable law, NNC disclaims all other express or implied warranties, including implied warranties of merchantability and fitness for a particular purpose.

15. WARRANTY CLAIMS

Any warranty or condition claim must be submitted within the applicable claim period specified by NNC and must include reasonable documentation supporting the claim.

NNC may require photographs, plant tags, purchase information, site information, or an inspection before approving a claim.

NNC shall have no obligation to replace or refund Products where failure or damage results from improper planting, transportation, handling, irrigation, maintenance, environmental conditions, disease, pests, weather, or other circumstances beyond NNC’s reasonable control.

Any approved remedy shall be limited to replacement of the affected Product, credit, or refund of the purchase price actually paid for the affected Product, at NNC’s option.

16. CUSTOMER RESPONSIBILITIES

The customer is responsible for determining whether Products are suitable for the intended location and application.

Customer is responsible for:

• Selecting appropriate Products;

• Confirming local growing conditions;

• Preparing the planting site;

• Proper transportation and handling after delivery;

• Proper planting and installation;

• Appropriate irrigation and drainage;

• Ongoing maintenance;

• Compliance with applicable planting, environmental, agricultural, quarantine, and local regulations; and

• Obtaining any required permits or approvals.

NNC may provide general horticultural information as a courtesy. Such information is not a substitute for professional horticultural, agricultural, landscape, engineering, or other professional advice.

17. QUARANTINE AND REGULATORY REQUIREMENTS

Customer is responsible for complying with all applicable federal, state, county, municipal, agricultural, environmental, and plant-quarantine requirements applicable to the purchase, transportation, possession, or planting of Products.

Certain Products may be subject to restrictions, permits, inspections, certifications, or quarantine requirements.

NNC may refuse, delay, modify, or cancel an order when necessary to comply with applicable laws, regulations, quarantine restrictions, governmental orders, or certification requirements.

18. RISK OF LOSS AND TITLE

Unless otherwise agreed in writing, risk of loss or damage to Products shall pass to Customer upon:

(a) delivery to Customer or Customer’s designated location;
(b) delivery to a carrier selected or arranged by Customer; or
(c) pickup by Customer or Customer’s authorized representative.

Title to Products shall pass according to the payment and delivery terms applicable to the transaction and, where permitted by law, NNC may retain title to Products until payment has been received in full.

Customers are responsible for Products after risk of loss has transferred.

19. STORAGE AND DELAYED PICKUP

If Customer does not accept delivery or collect Products when scheduled, NNC may, at its discretion:

• Reschedule delivery;

• Charge additional delivery or storage fees;

• Release reserved Products for resale;

• Apply applicable restocking charges; or

• Cancel the affected order.

NNC is not responsible for deterioration, decline, or loss of living plant material resulting from Customer’s failure to promptly accept delivery or pickup Products.

20. FORCE MAJEURE

NNC shall not be liable for any delay, failure, cancellation, shortage, or inability to perform caused by circumstances beyond its reasonable control.

Such circumstances may include, without limitation:

• Severe weather;

• Frost, freeze, heat, drought, storms, flooding, or natural disasters;

• Crop failure;

• Disease or pest infestation;

• Fire;

• Transportation interruptions;

• Labor shortages or strikes;

• Supplier failures;

• Government restrictions;

• Quarantine requirements;

• Regulatory changes;

• Acts of God;

• War or civil unrest;

• Pandemic or public-health restrictions;

• Utility failures;

• Supply-chain disruptions; or

• Any other event beyond NNC’s reasonable control.

In such circumstances, NNC may delay, modify, allocate, suspend, or cancel affected orders without liability.

21. LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law, NNC shall not be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages arising out of or relating to the sale, delivery, use, handling, planting, installation, or failure of any Product.

This includes, without limitation, loss of profits, loss of revenue, loss of business, loss of use, replacement costs, landscaping costs, labor costs, or other consequential losses.

NNC’s total liability arising from any transaction shall not exceed the purchase price actually paid to NNC for the specific Products giving rise to the claim.

Nothing in these Terms shall exclude or limit liability that cannot lawfully be excluded or limited under applicable law.

22. INDEMNIFICATION

To the maximum extent permitted by law, Customer agrees to indemnify, defend, and hold harmless NNC, its affiliates, officers, directors, employees, agents, and representatives from and against claims, damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ fees, arising from:

• Customer’s improper handling, transportation, storage, planting, installation, or use of Products;

• Customer’s violation of applicable laws or regulations;

• Customer’s negligence or misconduct;

• Customer’s modification or alteration of Products;

• Conditions at Customer’s property or project site; or

• Claims arising from Customer’s acts or omissions after risk of loss has transferred.
  

23. SUSPENSION OR CANCELLATION BY NNC

NNC may suspend, cancel, or refuse to fulfill an order if:

• Customer fails to make required payments;

• Customer’s account becomes past due;

• Customer exceeds approved credit limits;

• Products become unavailable;

• Fulfillment would violate applicable law or regulation;

• Customer provides inaccurate or incomplete information; or

• Circumstances beyond NNC’s reasonable control prevent fulfillment.

NNC shall have no liability for cancellation or suspension resulting from any of the circumstances described above, except as otherwise required by applicable law.

24. DEFAULT

Customer shall be considered in default if Customer fails to pay amounts when due, breaches these Terms, becomes insolvent, or otherwise fails to perform its obligations.

Upon default, NNC may, in addition to any other rights available under applicable law:

• Suspend or cancel outstanding orders;

• Require advance payment;

• Revoke credit terms;

• Require immediate payment of outstanding balances;

• Recover reasonable collection costs and attorneys’ fees where permitted by law; and

• Exercise any other remedies available under applicable law.

25. GOVERNING LAW

These Terms and any transaction between NNC and Customer shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict-of-law principles.

Any legal action arising from or relating to these Terms shall be brought in the state or federal courts located in Contra Costa County in California, unless otherwise required by applicable law.

26. DISPUTE RESOLUTION

Before initiating formal legal proceedings, the parties agree to make a good-faith effort to resolve any dispute through direct communication between authorized representatives.

Nothing in this section prevents either party from seeking temporary or emergency injunctive relief when necessary to protect its rights.

27. SEVERABILITY

If any provision of these Terms is determined to be invalid, illegal, or unenforceable, that provision shall be modified or limited to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

28. WAIVER

No waiver of any provision of these Terms shall be effective unless made in writing by an authorized representative of NNC.

Failure by NNC to enforce any provision shall not constitute a waiver of its right to enforce that provision or any other provision in the future.

29. ENTIRE AGREEMENT

These Terms, together with the applicable quotation, order confirmation, invoice, credit agreement, and any other written terms expressly incorporated by NNC, constitute the entire agreement between NNC and Customer regarding the applicable transaction.

They supersede all prior or contemporaneous oral or written communications concerning the same subject matter, except for written agreements expressly incorporated into the transaction.

30. ELECTRONIC ACCEPTANCE

Customer’s submission of an order, electronic acceptance, payment, pickup, receipt of Products, or acceptance of delivery constitutes Customer’s acknowledgment and acceptance of these Terms.

Electronic records and communications may be used as evidence of the parties’ agreement and transactions.

31. MODIFICATION OF TERMS

NNC reserves the right to modify these Terms from time to time.

The Terms applicable to a transaction shall be those in effect and provided to the Customer at the time the order is accepted, unless otherwise agreed in writing.

32. CONTACT INFORMATION

National Nursery Corporation
“National Nurseries”

3700 Las Colinas Rd
Livermore, CA 94551
United States

Phone: (925) 456 4980
Email: hello@bynationals.com
Website: www.bynationals.com