Terms & Conditions
1. Controlling Provisions
(a) This document, together with the order form submitted by Customer for products through www.out-grow.com (the "Website," this document and the Website being referred to collectively as the "Contract"), constitutes an offer by OutGrow®, LLC ("Seller") to provide the products described in such order form (the "Products") to the buyer submitting such order form ("Customer"). If this document is deemed an acceptance of a prior offer by Customer, such acceptance is limited to the express terms contained in this Contract. Customer's acceptance of this offer is limited to the terms, covenants and conditions contained in this offer. Seller hereby objects to and rejects any additional, different or varying terms proposed by Customer, unless an authorized officer of Seller expressly assents to such terms in a signed writing. Such proposal of additional, different or varying terms by Customer will not operate as a rejection of Seller's offer, and Seller's offer will be deemed accepted without such additional, different or varying terms. THIS CONTRACT CONSTITUTES THE FINAL EXPRESSION OF THE AGREEMENT BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THAT AGREEMENT. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT WILL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY BUYER AND AN AUTHORIZED OFFICER OF SELLER. Seller's sales representatives are without authority to change, modify or alter this Contract.
(b) Customer will be deemed to have made an unqualified acceptance of this offer and the Contract on the earliest of the following to occur (i) Seller's receipt of a copy of this Contract signed by Customer; (ii) Customer's payment of any amounts due under this Contract; (iii) Seller's delivery of the Products; (iv) Customer's failure to notify Seller to the contrary within ten days of receipt of this Contract; or (v) any other event constituting acceptance under applicable law.
(c) This Contract and any disputes hereunder will be governed by and construed according to the internal laws of the State of Illinois. Neither this Contract nor sales hereunder will be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods or the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended.
(d) Any controversy or claim arising out of or relating to this Contract, or the breach thereof, will be determined by binding arbitration before a single, neutral arbitrator administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration will be Rockford, Illinois and the arbitration will be conducted in English. Judgment on any arbitration award may be entered in any court of competent jurisdiction, and the parties intend that it will be enforceable in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
(e) The invalidity of any provision or clause of this Contract will not affect the validity of any other provision or clause hereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract will not be construed as a waiver or relinquishment or any right granted hereunder or the future performance of such term, covenant or condition.
(f) Customer may not assign this Contract without Seller's prior written consent. Seller may assign this Contract in whole or in part, including without limitation to its affiliates, suppliers or subcontractors. Subject to the foregoing, this Contract will inure to the benefit of, and be binding upon, the parties' successors and assigns.
(g) Customer is an independent contractor and neither Customer nor any of its employees or agents will be considered an employee or agent of Seller, its affiliates or suppliers. Neither Customer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on behalf of Seller, its affiliates or suppliers.
(h) The warranty limitations and damage limitations in section 6, and any other provision the performance or effectiveness of which naturally survives, will survive expiration or termination of the Contract for any reason.
2. Orders and Delivery.
(a) Customer's orders or mutually agreed change orders will be subject to all provisions of this Contract, whether or not the order or change order so states.
(b) Seller will deliver the Products EXW (INCOTERMS 2020) Seller's facility in McConnell, Illinois (the "Facility"). All risk of loss, damage or delay will pass from Seller to Customer upon Seller's delivery of the Products at the Facility. Title to the Products will not pass until full payment therefor has been received by Seller. Partial shipments will be permitted.
(c) All delivery dates are approximate. Delivery dates given by Seller are based on prompt receipt of all necessary information regarding the order. Seller will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Seller to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery will not be of the essence.
(d) Claims for shortages or other errors must be made in writing to Seller within ten days after Seller's delivery. Failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Customer.
3. Prices; Payment; Fees and Taxes.
(a) Prices are set forth on the Website and are subject to change. Special delivery time/processing or other unique requirements may be subject to additional charges. Payment is due at the time of order, and Products will not ship until payment has been received. All prices are in, and Customer will make payment in, U.S. Dollars.
(b) Prices do not include, and Customer will pay or reimburse Seller on demand for, all freight and shipping costs, as well as any taxes and fees including, but not limited to any manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, value added tax, duty, customs agent or broker fees, inspection or testing fee, packaging, loading, unloading, insurance, consular fees or any other tax, fee or charge (including interest), imposed on, in connection with or measured by any transaction between Seller and the Customer, in addition to the prices quoted or invoiced.
4. Cancellations, Changes and Returns. All undelivered Products may be cancelled by Customer only upon written approval of an authorized representative of Seller. In the event of any cancellation of an order by Customer, Customer will pay to Seller a cancellation charge of 10% for any order (or partial order) cancelled that is in excess of $1,000. Customer may not change its order or any part thereof without the prior, written consent of an authorized representative of Seller. Seller reserves the right to change the price, terms of payment and delivery dates for any Products affected by any changes to which it consents. No Products may be returned to Seller without its prior, written authorization. Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be unused, in resalable condition, and securely packed to reach Seller without damage. Any Products returned to Seller having an aggregate purchase price in excess of $1,000 will be subject to a 10% restocking charge plus freight, packaging, insurance, fees and taxes.
5. Limitations on Use of Products. The Products are being delivered subject to Customer's agreement to comply with the following limitations:
(a) Customer may not sell, transfer, market or assign the Products, or any spawn or cultures subsequently derived therefrom in any way, shape or form without Seller's express prior written consent.
(b) Customer may not represent any Products as being provided by or otherwise connected with Seller without Seller's express prior written consent.
(c) Customer may only use the Products for fresh and dried fruit body products, and for Customer's personal use to grow spawn for fresh and dried fruit body products.
6. DISCLAIMER OF WARRANTIES. (a) THE PRODUCTS ARE SOLD ON AN "AS IS" BASIS. SELLER AND BUYER AGREE THAT SELLER OFFERS NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SELLER WILL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY REMEDIES, OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, REMEDIES, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS, THE WEBSITE, SELLER'S ACTS OR OMISSIONS OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, OR FOR LOST PROFITS OR REVENUES DIRECTLY OR INDIRECTLY INCURRED, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S AGGREGATE LIABILITY WITH RESPECT TO A PRODUCT AND THIS CONTRACT WILL BE LIMITED TO THE MONIES PAID TO SELLER BY BUYER FOR THAT PRODUCT.
(b) Customer assumes all risk and liability with respect to the Products. Customer agrees to test and evaluate samples of Products promptly upon receipt to ensure compliance with all specifications, quality requirements and other requirements of Customer's application. Any oral or written description of the Products (including on the Website) will not be construed as a warranty with respect thereto, and Seller does not guaranty the accuracy of information given or make any recommendations made as to suitability of Products for Customer.
7. Indemnification. Customer hereby releases and agrees to indemnify, defend and hold harmless Seller and its shareholders, directors, officers, employees, agents, successors, assigns, affiliates and suppliers (individually and collectively, "Seller's Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, losses, suits, demands, fines, penalties, judgments, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs incurred by or against Seller or any of Seller's Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (a) misrepresentation or breach of this Contract, or violation of any law, by Customer or any of Customer's shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns ("Customer's Parties"); (b) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Customer or any of Customer's Parties; or (c) actions, threatened actions, losses, damages or injuries to person or property (including death) related to or caused by the Products following delivery thereof hereunder. Prior to settling any claim, Customer will give Seller an opportunity to participate in the defense and/or settlement of such claim. Customer will not settle any claim without Seller's written consent. In the event of any recall affecting the Products, Seller will have the right to control the recall process and Customer will fully cooperate with Seller in connection with the recall.
8. Force Majeure. Seller will not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, epidemic/pandemic (including COVID-19), terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Seller's available supply or any other cause beyond Seller's control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Seller may, at its option and without liability, prorate its deliveries, cancel all or any portion of the contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
9. Export Compliance. Customer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.