SodmastersGA™ Terms and Conditions for the Sale
1. Delivery of Goods: Title and risk of loss to the Goods passes to you upon delivery of the Goods to the freight carrier at our shipping location.
2. Inspection of Goods. You shall inspect the Goods upon receipt, and they shall be deemed to be acceptable unless you give us Written Notice (a “Nonconforming Goods Notice”) specifying and describing any Goods that differ in any material respect from the Goods specified in this Sale Confirmation/Invoice (“Nonconforming Goods”) within twenty-four (24) hours after delivery of the Goods, and you furnish us with good and credible evidence and such other documentation as we may reasonably request substantiating that the Goods delivered are Nonconforming Goods. If you give us a timely Nonconforming Goods Notice and provide the required evidence and/or documentation, we will replace such Nonconforming Goods with conforming Goods or credit or refund the amount due for such Nonconforming Goods. Notwithstanding the foregoing, we shall have no obligations or liabilities under this Section 2 or any of the Agreements if: (a) you make any use of any Nonconforming Goods after giving a Nonconforming Goods Notice; (b) the Goods became Nonconforming Goods after delivery thereof because of any damage, act or omission caused by you or any third party; (c) the Goods became Nonconforming Goods because you failed to follow our oral or written instructions as to the storage, installation, use or maintenance of the delivered Goods; or (d) you otherwise alter such Goods delivered without our prior written consent. You acknowledge and agree that the remedies set forth in this Section 2 are your sole and exclusive remedies for the delivery of Nonconforming Goods.
3. Installation of Sod. Notwithstanding anything set forth in any of the Agreements, we shall have no obligation or liability to you, including, without limitation, any obligation to replace any sod which is delivered to you if such sod is not properly installed in accordance with our oral and/or written instructions within twenty-four (24) hours after delivery of such sod to you.
4. Dormant Sod Policy: If the sod you purchased is in a dormant state when delivered and if any portion of that sod fails come out of dormancy during the spring or early summer immediately following the Delivery Date (“Brown Sod”), then upon notice, we will inspect the Brown Sod. If we determine that the Brown Sod failed to come out of dormancy because it was dead sod when delivered due to circumstances which occurred prior to delivery (“Dead Sod”), then we will replace the Dead Sod with live sod of the same type without charge to you; provided; however that we shall have no obligation to replace any sod which has failed to come out of dormancy as aforesaid because the temperature of the soil has not reached at least 70°, because it was located in an area which is not conducive to the growth of with the type of sod delivered to you (such areas with too little or too much sunlight or moisture), or because of damage, act or omission caused by you or any third party or because you failed to follow our oral and/or written instructions as to the installation, use or maintenance of the type of sod delivered to you (such as watering, fertilizing, applying insecticides and mowing).
5. Limitation of Liability. We shall not be liable or responsible to you or any other party, nor be deemed to have defaulted or be in breach of any of the Agreements, for any failure or delay in fulfilling or performing any term or obligation set forth in any of the Agreements when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control.
NOTWITHSTANDING ANYTHING SET FORTH IN ANY OF THE AGREEMENTS, IN NO EVENT: (A) SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH BY US OF ANY OF THE AGREEMENTS, WHETHER OR NOT YOU HAVE DISCLOSED IN ADVANCE THE POSSIBILITY OF SUCH DAMAGES OR THAT SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY YOU OR US, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED; AND (B) SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY OF THE AGREEMENTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO US FOR THE GOODS SOLD UNDER THIS PURCHASE ORDER/INVOICE.
6. Written Notice. Any “Written Notice” required or permitted to be given under any of the Agreements must be in writing and properly addressed to the applicable party at its address herefore set forth in this Sale Confirmation/Invoice and shall be given in the one of the following manners: (a) by personal delivery, in which case the effective date shall be the date of receipt by the receiving party; (b) by deposited such Written Notice with a nationally recognized overnight delivery courier in time for next business day delivery (delivery charges pre-paid), in which case the effective date shall be the date of delivery or attempted delivery by such courier; or (c) by certified or registered mail, return receipt requested, postage prepaid, in which case the effective date shall be the third day after postmark of such mail by the US Postal Service. Copies of all Written Notices shall be sent if to you, to the e-mail address heretofore set forth and if to us, to the e-mail address bradburyfarms@sodmastersga.com; provided, however, the failure of the receiving party to receive a copy of such Written Notice by e-mail shall not affect the validity of such Written Notice given in the required manner specified above. Either party may change its address, fax number and/or e-mail address by giving Written Notice to the other party.
7. Entire Agreement. You and we acknowledge and agree that no promises, representations or agreements between us, or anyone acting for us or associated with or employed by us, which shall be binding upon either party other than as set forth in the Agreements. The provisions of the Agreements that by their nature should be applicable after delivery of the Goods to you, including, without limitation, Sections 2, 3, 4, and 5 above and 8 below, shall survive and remain in force after delivery of the Goods to you. The Agreements constitute the entire agreement between the parties concerning the subject matter thereof and supersede any prior discussions, agreements or understandings concerning such subject matter; and in each case shall inure to the benefit of and be binding on each party and their respective heirs, successors, successors in interest and assigns. As used herein, the term “Agreements” means collectively, the Sale Confirmation/Invoice, these Terms and Conditions and any other documents and agreements between you and us concerning or relating to the Goods.
8. Miscellaneous. You shall pay all costs and expenses we incur in collecting any amounts due from you under the Agreements, including, without limitation, attorneys’ fees, court costs and other costs and expenses of litigation. Any legal suit, action or proceeding arising out of or relating to any Agreement shall be instituted in the federal courts of the United States of America sitting in the Middle District of Georgia or the courts of the State of Georgia located in Laurens County, and each you and we irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The Agreements are and shall be governed by and construed in accordance with the laws of the State of Georgia. No waiver of any of any agreement or obligation in any of the Agreements shall be effective unless explicitly set forth in a written document and signed by an authorized representative of the waiving party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising under any provision of the Agreements operates, or may be construed, as a waiver thereof, and no single or partial exercise of any right, remedy, power or privilege under any provision of the Agreements precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege under the Agreements or available under applicable law. The Agreements shall be binding upon and shall inure to the benefit of the parties and their respective heirs, successors, legal representatives and assigns. Time is of the essence of the Agreements.