By using this Web site, located at http://www.SilverVase.com, or as otherwise designated from time to time (the "Silver Vase Site") you signify your assent to these Terms and Conditions of Use (the "Policy"). If you do not agree with this Policy please do not use this Silver Vase Site. Silver Vase reserves the right to modify, improve or change any of this Policy, including the information, names, images, pictures, logos and icons described in the Silver Vase Site, or the products and services referred to within at any time, with or without notice. Your continued use of this Silver Vase Site following the posting of any changes to this Policy will indicate you accept such changes.
Use of the Silver Vase Site
As part of your permitted use of the Silver Vase Site you agree not to modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit any of the materials, copyrighted materials, trademarks or other proprietary information, including, but not limited to the text, software, photos, video, graphics, music and sound, collectively referred to herein as the "Content" of this Silver Vase Site or any portion thereof. You further agree not to use the Silver Vase Site for any commercial purposes, other than for the purchase of products offered therein, or to "deep link" to any content, or use the Silver Vase Site in any manner that is competitive with the products offered by Silver Vase, its subsidiaries or affiliates.
Master Terms and Conditions of Sale
This Agreement ("Agreement") and any written agreement making specific reference to this Agreement contain the all of the terms and conditions that apply to all purchases of Products from Silver Vase, Inc. Notwithstanding the foregoing, unless a written agreement between you and us expressly refers to this Agreement and expressly states that it varies the terms of this Agreement, then the terms and conditions of this Agreement shall control all sales of Products by us to you, notwithstanding any additional or different terms in any other agreement or understanding. The terms and conditions set forth in this Agreement shall be in lieu of all other terms and conditions appearing on any purchase order submitted by you, except that price, credit terms, requested shipping date, quantity, type of Product , the identity of the carrier, whether the shipping is F.O.B. or C.I.F. and whether you elect to have the Advanced Booking/Guaranteed Shipment Date provisions applicable to your purchase may be set forth in any Purchase Order. We will not be bound by any terms or conditions on your order form which are different that or inconsistent with the terms of this Agreement. Your acceptance of this Agreement may be made either (i) by a writing between you and us agreeing to the terms and conditions of this Agreement, (ii) placement by you of a Purchase Order through our online order system or other means which is accepted by us in writing or (3) receipt by you of Products consistent with your Purchase Order; and we will not be bound unless this Agreement is accepted. We will not have any obligation to you with respect to Products, unless we accept a Purchase Order in writing for those Products or you accept such Products.
Terms of Sale
The purchase price for all products shall be due and payable in cash at the time of delivery to the carrier at our facility, unless we have agreed to extend credit to you pursuant to a credit account. If a credit account has been established, the terms of payment shall be as set forth in the applicable Purchase Order; and if not set forth therein, payment shall be net 30 days after the date of our invoice or 30 days after delivery to the carrier at our facility, whichever is earlier. A completed Florida Growers Credit Association credit application and references are required to apply for a credit account. No discounts will be allowed for early payment. If you fail to make any payment on a timely basis, if you are in breach of any agreement with us or if your financial condition (in our judgment) does not justify completion of an accepted Purchase Order, then we may, without liability to you, cancel any or all Purchase Orders. Unless we otherwise agree in writing and except to the extent permitted if the Advanced Booking/Guaranteed Shipment Date provisions are applicable, you may not change or cancel (in whole or in part) any Purchase Order which is accepted by us; however, without penalty or charge, you may reduce the quantity of Products purchased in any accepted Purchase Order by up to 5% of the total ordered without penalty or charge at any time until we deliver the Products to the carrier. If we deliver an order to the carrier and that contains at least 90% of the Products ordered, then that order shall be deemed fulfilled in accordance with the terms of the applicable Purchase Order, but you shall only be required to pay for that portion of the Products actually delivered. A late charge (equal to the lesser of 1.5% per month or the highest rate permitted by law) shall be assessed each month on all outstanding overdue balances until paid. Any amount received by us may be applied against any amount owing by you to us, regardless of any statement appearing on any check or otherwise without discharging any other amount owed by you to us. The acceptance of any check or writing marked payment in full shall not discharge your obligations to us or act as a discharge or waiver of our right to be paid other amounts which you owe to us. Time is of the essence with respect to your obligations to make payment to us. All of your obligations to make payments under this Agreement shall be absolute unconditional, and notwithstanding any provisions contained herein or any other documents to the contrary, none of such obligations shall be subject to any set of or counterclaim under or with respect to this or any other agreement. This Agreement applies to all orders for Products accepted by us. Acceptance of your order by us will be made only on the express understanding and condition that insofar as this Agreement conflicts with any terms and conditions in your purchase order, this Agreement shall govern. No order shall be binding upon us until we send you confirmation of such order through e-mail or other written communication or deliver the Products to the carrier at our facility. The amount of credit may be changed or withdrawn completely by us at any time. On any order for which credit is not extended by us, delivery to the carrier shall require, at our election, cash with order (in whole or in part), or C.O.D. or sight draft attached to the Bill of Lading or other shipping documents. If any proceeding is brought by or against you under bankruptcy or insolvency laws, we shall be entitled to cancel any order then outstanding.
Price and Quantity
The price payable for all Products shall be payable in United States Dollars as set forth in the Purchase Order submitted by you and accepted in writing by us. The quantity ordered and dates requested for shipping shall be as set forth in such Purchase Order.
Taxes
In addition to the price payable by you to us, you shall be solely responsible for and shall pay to us upon demand (or furnish to us evidence of exemption from or payment of) all taxes, duties, fees, charges or other assessments of any nature assessed by any governmental authority relating to any sale, delivery, transfer, use, import, export or possession of any Product sold in connection with this Agreement or any Purchase Order (except for taxes assessed based upon our net income).
Freight, Shipping, Title and Risk of Loss
We will deliver Products for which we have accepted a Purchase Order to the carrier designated in that Purchase Order. We will package all Products in our standard manner. All Products will be delivered by us to the carrier designated in your Purchase Order F.O.B. our facility in Homestead, Florida, unless the Purchase Order indicates that Products are being delivered by us to the carrier designated in your Purchase Order C.I.F. your facility (in which case we will pay the freight and insurance charges of the carrier). Risk of loss and risk of delay or damage in transit shall pass to you at the time of delivery to the carrier at our facility. Title shall not pass with respect to Products until you make payment in full therefor. Our unexcused delay in delivering one installment to the carrier at our facility shall permit you to cancel only that installment; and acceptance by you or the act of taking possession of Products by the carrier shall constitute a bar to any claim of late delivery with respect to such Products. You and the carrier shall be responsible for all Products after they are delivered to the carrier at our facility, including, but not limited to, theft, damage by improper temperature or otherwise. Notwithstanding anything to the contrary set forth herein, you shall not be excused from performance if for any reason, the carrier does not pick-up Products on the date specified for shipping; and we may dispose of any Products as to which you cancel an order or which the carrier does not pick-up within five days of the date agreed for delivery to the carrier at our facility, in which case we may cancel the order without notice to you and you shall be responsible for a 25% restocking fee as to the Products ordered; and in any such event, we shall have no duty to mitigate our damages. We may deliver any order to the carrier at our facility in part (subject to the above-referenced 90% minimum) and in the event that an order is delivered in part, you shall be responsible for payment for that part of the order received by the carrier, and we shall only be responsible for that portion of an order which we are required to but do not deliver.
Advanced Booking/Guaranteed Shipping Dates
Advance orders for specific seasons or promotional dates are encouraged. Subject to the terms of this Agreement, our sales staff will be happy to endeavor to implement year-round color programs for interiorscapers or mass-market outlets including UPC coding, points-of-purchase information and specialty product upgrades. We will guarantee dates for delivery to the carrier at our facility with respect to any Purchase Order as to which an accepted Purchase Order provides that an Advanced Booking/Guaranteed Shipment Date will be applicable. If a Purchase Order is accepted no less than 90 days prior to the first date designated for delivery to the carrier at our facility and provides that an Advanced Booking/Guaranteed Shipment Date will be applicable, then: (i) the Purchase Order may be cancelled by either party by written notice to the other no later than 60 days prior to the first date designated for delivery to the carrier at our facility without liability by either party; (ii) if we fail to have Products available for delivery to the carrier at our facility on the date agreed for delivery to the carrier at our facility with respect to a Purchase Order, then we will promptly pay you (or offset against amounts that you owe to us) 20% of the price of the Products not delivered pursuant to that Purchase Order; (iii) if you cancel a Purchase Order between 30 and 60 days prior to the first date designated for delivery to the carrier at our facility, you shall immediately pay to us 10% of the purchase price of the Products cancelled (any such cancellation may be in whole but not in part); and (iv) if you cancel a Purchase Order 30 days or less prior to the first date designated for delivery to the carrier at our facility, you shall immediately pay to us 20% of the purchase price of the Products cancelled (any such cancellation may be in whole but not in part) and if the Products cancelled have already been boxed you shall immediately pay us an additional 5% of the purchase price. For orders as to which Advanced Booking/Guaranteed Shipment Date is applicable, we will permit the carrier to pick up Products up to five days beyond the date designated for pick up.
Limitation of Liability; Disclaimer of Warranty
We will not be liable for indirect, exemplary, incidental, special or consequential punitive or similar damages, including without limitation, any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or arising in connection with this Agreement or your purchase or attempt to purchase products, or of any other obligations relating to the Agreement or any Purchase Order, even if we have been advised of the possibility of such damages. Further, the aggregate liability (whether claims arise in contract, tort, personal injury, product liability or otherwise) of Silver Vase, Inc. (and its officers, directors, employees, agents, representatives and affiliates), and your sole and exclusive remedy, arising with respect to or in connection with this Agreement or any Purchase Order, shall not exceed: (i) the aggregate of our invoiced purchase price with respect to any Products as to which there is a dispute; or (ii) in the event of our failure to deliver Products, 20% of our invoiced purchase price of such Products. The foregoing limitation of liability shall apply regardless of the cause of action under which such damages are sought, whether in contract, in tort or otherwise. With respect to each Product we sell to you, we warrant, to the extent of the foregoing limitations, that such Product is true to name or variety according to common usage in the trade and that we have good title to that Product; and except for this warranty we make no express or implied warranties or representations, including, but not limited to, with respect to any Product, the condition of that Product or that such Product is free from defects, damage or disease or as to the accuracy or completeness of information delivered to you. This warranty is exclusive and is in lieu of any other warranties, whether express, implied, verbal, written or otherwise, including, without limitation, warranties of fitness for a particular purpose, intended use, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage. This warranty is valid only when the Products are shipped by the carrier and maintained by you in accordance with the Bill of Lading and other materials furnished to you or the carrier and otherwise in a manner which is reasonable; and you shall be solely responsible for failure of Products to be so shipped. You acknowledge that the carrier must deliver all Products to you within seven days of the date of delivery to the carrier at our facility and that all Products must be refrigerated in the manner provided in the Bill of Lading, or such warranty is void. Our sole liability for breach of warranty hereunder, and your sole remedy, shall be limited to, at our option, replacement of the non-conforming Products or a credit for the price thereof. You hereby represent and warrant to us that this Agreement and all Purchase Orders that you submit to us have been duly and validly executed and delivered by you and constitute your legal, valid and binding obligation, enforceable against you in accordance with their terms.
Claims
Subject to the other terms of this Agreement, any claims or disputes with respect to any Products or shortage or discrepancy must be reported within 48 hours of receipt by you of such Products, and such claims must be noted on the Bill of Lading. You expressly agree that any failure on your part to so make any such claim in a timely manner shall complete acceptance by you of the Products and constitute a complete bar to any claim by you with respect to such Products. Damage due to shipping problems (breakage, freezing, delay, heat damage, etc.) are the responsibility of the carrier and claims must be filed with the carrier. Pictures of the damaged plants must be provided and may help support claims of this nature. Please call us at 1-800-872-6586 regarding any order discrepancies. Under no circumstances will credits, refunds, or replacements be permitted without our advance written authorization. Unauthorized returns will be returned at your expense and need not be accepted by us. After the expiration of such 48 hour period, you shall have no further right to reject any Products. ConfidentialityWe may disclose to you certain information about us, our Products or the terms on which we sell Products to you, which information we consider to be confidential (along with matters relating to pricing, herein referred to as "Confidential Information"). You agree not to disclose or use or permit the disclosure or use of any Confidential Information.
Miscellaneous
Each time we accept a Purchase Order submitted by you , the terms of this Agreement will be incorporated by reference into that Purchase Order. Any Purchase Order accepted by us by e-mail or other e-mail agreement between you and us shall be deemed to be a written agreement. Purchase Orders placed through our online order system, in addition to being subject to the provisions of this Agreement, are also subject to the general Terms and Conditions of Use Policy, which governs the use of our website, as well as our web site's Online Privacy Policy; provided however, that in the event of a conflict between the Terms and Conditions of Use Policy or the Privacy Policy and this Agreement relating to an online purchase this Agreement shall control. Any telecopied signature shall be deemed a manually executed original. We reserve, until full payment has been received, a purchase money security interest in the Products sold. You agree to execute any document appropriate or necessary to perfect our security interest, or in the alternative, we may file this Agreement as a financing statement and/or chattel mortgage. You agree to operate your business in compliance with applicable laws and to obtain all necessary permits, licenses, import licenses, export licenses, and the like relating to Products, and to indemnify us for any failure to do so. You agree to obtain all permits necessary to transport, purchase, sell or export Products. All costs of collection shall be paid by you. We shall not be liable for any delay in performing our obligations under this Agreement or any Purchase Order, if and to the extent such delay is caused by circumstances beyond our reasonable control. These circumstances shall include, but not be limited to, any delay cause by any act or omission of the other party, acts of God, war, civil unrest, riot, insurrection, theft, vandalism, floods, windstorm, labor disputes, storm, freezes, governmental or regulatory actions or inactions, epidemics, disease, inability to obtain materials, temperature, or delay of essential materials or services. In such event the date of our performance may be extended for a period equal to the time lost due to such delay; and we shall not be in default as a result of any such occurrence. You acknowledge that you are responsible for all acts and omissions of the carrier, and that you shall be deemed to have designated the carrier even if we have made arrangements on your behalf with the carrier. This Agreement will be governed by the laws of the United States and the State of Florida, without references to rules governing choice of laws. You agree that all disputes, issues and controversies relating to this Agreement shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and that the exclusive situs of such arbitration shall be in Miami-Dade County, Florida with an arbitrator(s) resident in such County. In the event of any default by you, we may decline to make further shipments without in any way affecting our rights under this Agreement.You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable, such holding or action shall be strictly construed and the unenforceable provision shall be deemed severable from the remainder of the Agreement to the extent permitted by law, and the validity or effect of any other provision of this Agreement shall remain binding with the same effect as though the void parts were deleted. We may change our policies and operating procedures and the terms of this Agreement at any time. In the event of any inconsistency between the terms of this Agreement and any Purchase Order, the terms of this Agreement shall prevail. You understand and agree that you and Silver Vase, Inc. are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf or to otherwise bind us. This Agreement may not be amended without the prior written consent of both parties making express reference to this Agreement.
You Understand this Agreement:
YOU ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTANDTHIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS, AND THE LEGAL CONSEQUENCES OF THIS AGREEMENT, AND THAT WE HAVE ADVISED YOU TO SEEK THE ADVICE OF YOUR OWN LEGAL, BUSINESS, TAX AND FINANCIAL ADVISORS BEFORE AGREEING TO BE BOUND BY IT. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND US. BY PLACING AND ORDER FOR GOODS FROM US YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNSERSTAND ALL OF THESE TERMS AND CONDITIONS AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS. THIS AGREEMENT DOES NOT BECOME EFFECTIVE WITH RESPECT TO ANY PARTICULAR PRODUCTS UNTIL WE PROVIDE WRITTEN NOTICE(INCLUDING, BY WAY OF E-MAIL) OF OUR ACCEPTANCE OF A PURCHASE ORDER OR YOU ACCEPT THE PRODUCTS.
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