Terms of Sale for Retail Sales

Terms of Sale for Commercial Sales

These Terms of Sale for Commercial Sales (“Terms”) also include the Terms contained in the “Ordering,” “Delivery,” and “Pick Up (Will Call)” links found within the Commercial tab on the Homepage Menu. All such Terms are hereby incorporated by reference and made a part of these Terms.

Prices are subject to change without notice. All orders are subject to availability. Otto & Sons Nursery (“We” or “Seller”) reserves the right to correct clerical or typographical errors at any time, even after acceptance and sale. All orders will be C.O.D. upon delivery to you (“Buyer”) unless a prior account has been established. Orders may be canceled at any time, but any order canceled after delivery to the Buyer is subject to a 20% restocking fee. Due to plant quarantine restrictions, all returned plants must have a pesticide treatment and be held for 14 days before returning to stock.

All online orders are subject to acceptance and issuance of an order acknowledgment from the Seller. If any Terms on the face of any order acknowledgment/confirmation or invoice of Seller differ from or conflict with these Terms (for example only, special delivery or payment Terms), the face Terms will control these Terms. Any pre-printed Terms on any Seller order acknowledgment/confirmation or invoice that differ or conflict with these Terms do NOT apply. Any conflicting or additional Terms of Buyer on any document will have no effect unless expressly agreed to in writing by Seller.

Otto & Sons Nursery accepts most major credit cards for your convenience. Credit is available to established businesses at the Seller’s sole discretion based on the following Terms:

1. All approved credit accounts are due and payable 30 days after the date of invoice.
2. Overdue accounts will be subject to a service charge of 1.25% per month or the maximum amount allowable by law, whichever is less.
3. Otto & Sons Nursery retains the right to deny further credit on overdue accounts. It reserves the right to change payment Terms if the Purchaser’s financial condition has changed, as determined by Seller in its sole discretion.

Otto & Sons Nursery reserves the right to terminate any order in whole or in part if Buyer breaches any of these Terms or any invoice, acknowledgment, or other Seller order document, or if Buyer becomes insolvent, enters voluntary or involuntary bankruptcy or receivership proceedings or makes an assignment for the benefit of creditors or the failure of Buyer generally to pay the Purchaser’s debts as the debts become due. Termination will not relieve either party from any liability arising from any breach of these Terms. Upon termination for any reason, in addition to any other amounts owed to Seller, Seller will be paid for all products shipped before termination.  Please see the “Ordering” link for additional Terms regarding product orders. Otto & Sons need not ship or deliver the product if the Buyer has not met its payment or other contractual obligations. Seller reserves the right to make delivery in installments, and each installment will be billed separately and paid for when due.

Delivery

Delivery dates are estimates only. Delivery charges are not included in prices and will be itemized separately. Any orders not picked up or delivered by us will be shipped Free on Board Seller’s Shipping Point (F.O.B.). When shipped F.O.B., you bear the risk of loss or damage from the time the product is loaded onto the carrier at the Seller’s facility and during all transportation and delivery of the product to the site designated by you.

Unless otherwise specified in writing, all prices are in United States dollars (“USD”) and exclusive of any applicable Federal, State, and local taxes, tariffs, customs, and duties.  Buyer shall be solely responsible for compliance with any laws, rules, ordinances, and regulations regarding the product, including, without limitation, any tax laws (all of the above collectively, “Laws”).  Buyer shall promptly pay any taxes that Seller or its agents may be required to pay or collect under any existing or future Law (including, without limitation, any sales taxes). California sales tax shall be added to shipments made within California unless a valid resale certificate has been filed with the Seller or its agents.  Please see the “Delivery” and “Pick Up (Will Call)” links for additional Terms regarding delivery or pickup.

Limited Warranty

Otto & Sons Nursery will exercise commercially reasonable efforts to have all merchandise true to name. Any sample shown to the Buyer is used to illustrate the general type and quality of the goods only.  Seller does not warrant or guarantee uniformity, and Buyer acknowledges that there will be variations in character, quality, and condition of the nursery product. Seller warrants that the nursery product shall be alive and free from disease or damage at the time of pick up by Buyer or the arrival of the Seller’s delivery truck for offloading by Buyer or at the time of loading onto the carrier if the product is shipped and that Seller shall transfer title to the nursery product free and clear of all third-party liens and claims.

This warranty does NOT include any of the following: failure of any pots or other containers, damaged leaves, minor limb breakage, color changes, plants in their deciduous condition due to season, variations in production, or variations in character, condition, or quality of goods or appearance somewhat different than any product image or sample, any mislabeling of plant varieties, and any acts of God, acts of Buyer, or events beyond the reasonable control of Seller, including, but not limited to, changes in local, State or Federal laws, rules, ordinances and regulations, fires, strikes, floods, epidemics, pandemics, quarantine restrictions, terrorism, riot or other civil unrest, war, acts of violence, governmental orders, freight embargoes, delays in transportation, shortages of fuel or other materials, or similar circumstances to any of the above (collectively, “Force Majeure Events”).

Any claims for defective or damaged goods must be made within three (3) days of receipt of the nursery product by the Buyer and include the plant tags or such claims, which shall be conclusively deemed forever waived. The Seller, in its sole discretion, will determine if the product is defective. If Buyer makes a claim for a damaged or defective nursery product within three (3) days of receipt, Seller’s obligation is limited to credit for the damaged or defective nursery product or replacement of the product, Seller has no liability for damages suffered by Buyer or others, consequential or otherwise. Buyer shall not return any defective product without the prior written approval of Seller, and Buyer is solely responsible for the destruction of the defective product and all return shipping costs. There is no charge for pickup of defective products if approved in advance in writing by the Seller. No employee, agent, dealer, or other person is authorized to give any warranties on behalf of Seller or its agents or to assume for Seller or its agents any other liability in connection with any of its products except in writing and signed by an authorized officer of Seller.  No other express warranty is given, and no affirmation of Seller, by words or action, will constitute a warranty.  The foregoing warranty is in lieu of all other warranties, either express or implied, including, but not limited to, the implied warranties of non-infringement, merchantability, and fitness or suitability for a particular purpose, which are hereby expressly waived to the fullest extent permitted by law.  There are no warranties that extend beyond the description on the face hereof.

DAMAGE LIMITATIONS. In no event will Seller be liable for any special, incidental, indirect, or consequential  damages to the fullest extent permitted by law, even if Seller has been advised of the possibility of such damages. You expressly agree that Seller’s sole maximum liability for damages for any cause whatsoever will be limited to the total price received by Seller for the order of the product in question. When you accept the product, you are precluded from seeking any other damages against Seller. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.   This warranty gives you specific legal rights, and you may also have other rights that vary from State to State.

Claims

The Seller must inspect the product within three (3) days of receipt. All claims for defective products, shortages in delivery, or otherwise must be made within three (3) days of receipt of the product.  If the Buyer believes an error has been made in the order, please notify us promptly, and we will make a reasonable adjustment if we have determined in our sole discretion that we made an error. We do not guarantee the longevity of plants and will only accept returned goods that we deem defective (in our sole discretion) for full credit when notified within three (3) days after receipt of the product. Buyer acknowledges that the fees and costs payable pursuant to an order will remain due and payable, notwithstanding that the products may be determined to be non-conforming or there are any shortages in quantity.

Returned Stock

Nursery products that are not defective may be returned within thirty (30) days of the earlier invoice or shipping date and must be returned in saleable condition. The Purchaser pays return shipping costs. All returns of product must be disease-free, alive, free from damage, and in healthy and saleable condition, all as determined in the sole discretion of Seller. Accepted stock plants that have been returned within the thirty (30) day period are subject to a 20% restocking fee. No returned nursery stock will be accepted after thirty (30) days. Plants removed from their pots or otherwise planted will not be accepted for return. All requests for Otto & Sons Nursery to pick up plants must be authorized in writing by an Otto & Sons Nursery Sales Representative. There will be no charge for picking up returned items.  Information needed for a pickup order to be authorized and issued includes, without limitation, the invoice number, the quantity, type, and size of material to be picked up, and the reason the plants are to be returned. The drivers will not pick up plants for return without prior written authorization. We charge the restocking fee because we quarantine the plants and treat them for invasive pests before they are returned to our nursery.  Notwithstanding anything in these Terms to the contrary, any nursery product delivered to a quarantined area (as determined in Seller’s sole discretion)  cannot be returned, and all sales are FINAL UPON DELIVERY.

Entire Agreement

These Terms, including all Terms contained in the “Ordering,” “Delivery,” and “Pick Up (Will Call)” links, which are incorporated by reference and made a part of these Terms, and any Terms on any invoice or order acknowledgment/conformation from Seller that are deemed to apply to supersede all prior and contemporaneous understandings and agreements of Seller and Buyer (whether written or oral). Any waiver must be in writing and signed by the party so waiving. Any amendment or modification of these Terms must be in writing and signed by an authorized representative of Seller and Buyer.  These Terms are subject to the laws of California. Seller and Buyer agree that any legal action or proceeding with respect to these Terms will be brought in the Federal or state courts of Ventura County, California, and the parties expressly waive any objection to personal jurisdiction, venue, or inconvenient forum.  These Terms are binding upon Seller and Buyer and each of their successors and assigns.  If any provision of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, the provision shall be deemed omitted, and the remainder of these Terms will remain in full force and effect to the fullest extent allowable by law, if the essential Terms and conditions of this Agreement for each party remain valid, binding, and enforceable. Seller and Buyer shall perform any and all acts and shall execute any and all documents that may be reasonably necessary to carry out the provisions and the intent of these Terms.