Definitions. “Customer” is the entity or person purchasing trees or plant products from the Texas Tree Supply LLC (“TTS”) as part of a business transaction (“Transaction”).  “Goods” shall mean the trees or other plant products sold to the Customer in connection with the Transaction.  “Quotation” shall mean the offer by TTS to sell trees or plant products to the Customer.  “Order” shall mean the Customer’s purchase order or other form of communication indicating acceptance of TTS’s Quotation for supply of Goods.  All references to “Terms and Conditions” within this agreement means 1) the terms and conditions contained herein; 2) additional included terms and conditions included in TTT’s Quotation; 3) any additional terms and conditions agreed to by TTS in writing.

Agreement. The Terms and Conditions shall exclusively govern the Transaction between TTS and the Customer and shall supersede and serve as the entire agreement (“Agreement”) between both parties.  All modifications to the Terms and Conditions must be approved in writing by an authorized representative of TTS.

Payment. Payment terms shall be established with the Customer prior to Order acceptance by TTS.  All prices are given in U.S. dollars.  Prices and availability are subject to confirmation by TTS at time of Order acceptance. Unless other payment terms are specified in the Quotation, all credit accounts are offered by TTS on a Net (30) basis.  Past due accounts will be charged 1.5% per month.  TTS shall attempt to provide a courtesy notice to the Customer of any past due amounts prior to charging interest.  Customer agrees to pay any costs and fees incurred for collection of past-due accounts.

Sales Tax. The Customers shall pay to TTS any applicable Texas sales tax or present TTS with a valid Texas Resale/Exemption Certificate.  The Customer is responsible for any tax, penalties, or costs associated with Resale or Tax Exemption Certificate that is later found to be invalid.

Delivery and Acceptance. All Goods are furnished on a F.O.B. (Freight on Board) basis.  It is the Customer’s sole responsibility to unload the Goods including having ample equipment and manpower on hand at the time of the delivery to ensure an expeditious unloading time. Failure to do so will incur additional shipping delay charges.  All delivered Goods must be counted and inspected by species and size upon delivery by a qualified Customer representative. Any problems or discrepancies must be resolved before the carrier leaves by calling TTS.  Trees that have been delivered are considered to have been Accepted by the Customer. The Customer is responsible for notifying TTS of the need for any level of insurance on the shipment beyond the carrier’s standard freight liability insurance. 

Warranty. Goods are guaranteed to be healthy at time of shipment and true to name.  No warranty is given, expressed or implied, as to the Goods after they have been delivered, including their longevity.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TEXAS TREE SUPPLY LLC MAKES NO OTHER REPRESENTATIONS AND EXTENDS NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  

Returns and Cancellations. All sales are final unless otherwise approved by TTS in writing.  TTS reserves the right to cancel all or part of any order in the event of crop loss or shortage.

Assignment. The Customer shall not assign its rights or obligations in connection with the Order unless written approval is given by an authorized representative of TTS.  TTS may assign the Order to a legitimate successor provided that TTS’s successor shall assume responsibility for all of TTS’s obligations in connection with the Transaction.

Customer Default. TTS shall be entitled to stop or delay fulfillment of the Order in the event that cause for reasonable doubt exists regarding the Customer’s solvency or financial ability to fulfill its obligations in connection with the Order.  In such an event, TTS shall also be entitled to adjust payment or credit terms in connection with any Order (including requiring cash-on-delivery or pre-payment prior to delivery) or to altogether terminate all of its obligations in connection with the Order.  Customer shall be liable to TTS for all damages arising from Customer’s insolvency or default of obligations, including but not limited to loss of profits, attorney fees, and court costs.   

Governing law. By placing an order with TTS the Customer expressly agrees that all legal matters relating to your Order, including disputes, will be governed by the laws of the State of Texas and the Customer shall submit to the exclusive jurisdiction of the state and federal courts located in Harris County, Texas.  Prior to taking legal action both parties agree to attempt to resolve disputes or claims relating to the Order or Transaction with negotiation between executives.

Force Majeure. TTS shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement or Order obligation when and to the extent such failure or delay is caused by or results from acts beyond TTS’s reasonable control, including, without limitation, the following force majeure events that frustrates the purpose of this Agreement or Order fulfillment: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or similar influenza or bacterial infection (which is defined by the United States Center for Disease Control as virulent human influenza or infection that may cause global outbreak, or pandemic, or serious illness); (j) emergency state; (k) shortage of adequate medical supplies and equipment; (l) shortage of power or transportation facilities; and (m) other similar events beyond the reasonable control of TTS.

Limitation of Liability: In no event shall TTS be liable for any other incidental or consequential damages (including loss of profits) of any kind, whether based on contract, tort or any other legal theory.  TTS’s liability in all scenarios is strictly limited to replacement of Good(s) acknowledged by TTS as being defective or an approved credit (or refund) for the Good(s) acknowledged by TTS as being defective. In no event shall TTS’s liability exceed the price paid to TTS in connection with the Order.

Severance: If any of these Terms and Conditions should be determined to be invalid or unenforceable for any reason by any court of competent jurisdiction then such Term or Condition shall be severed and the remaining Terms and Conditions shall survive and remain in full force and effect and continue to be binding and enforceable.

Waiver: If the Customer breaches these Terms and Conditions and TTS takes no action, TTS will still be entitled to use its rights and remedies in any other situation where the Customer breaches these Terms and Conditions.

Headings. The headings used in these terms and conditions are provided strictly for convenience and shall not be used for purpose of interpretation.