Standard Terms and Conditions

The terms set out below and any other documents referred to in these pages tell you information about Gardens Alive, Inc., a Delaware corporation, doing business as Seed Developments USA (the “Company”), and the Standard Terms and Conditions (the “Terms”) on which the Company sells any of its products (the “Products”) listed on the Company’s website at www.seeddevelopmentsusa.com (the “Site”) to its customers (the “Customer”).

These Terms will apply to any contract between the Company for the sale of Products to the Customer (the “Contract”) as set forth herein. Please read these Terms carefully before ordering any Products from the Company. By ordering any of the Products, the Customer agrees to be bound by these Terms and the other documents expressly referred to in herein.

The Company reserves the right to amend these Terms from time to time as set out in Section 4. The Terms applicable to each specific Customer order shall be the Terms set forth on the Site on the date such order is accepted by the Company.

1. THE COMPANY’S PRODUCTS
   1. The images of the Products on the Site are for illustrative purposes only. Although the Company has made reasonable efforts to display the colors and detail accurately, the Company cannot guarantee that the colors and details displayed on the Customer’s electronic device will accurately reflect the color of the Products. The Products received by the Customer may therefore vary from those images.
   2. Where the Customer requests that the Company obtain raw materials (such as seeds) from third party suppliers for such Customer, the Company will obtain such raw materials on behalf of the Customer acting as the agent of the Customer. In such circumstances, it is the Customer’s responsibility to assess the supplier's warranties and product information before asking the Company to purchase the raw materials from such third party supplier. The Company makes no warranty or representation as to the quality, condition or description of the raw materials provided by any third-party suppliers.
   3. Where the Customer sends the Company raw materials (such as seeds) to be incorporated into the Products:
      1. it is the Customer’s responsibility to undertake all necessary tests (visual, physical or otherwise) as to the quality, condition, state and / or suitability of the raw materials, before asking the Company to incorporate the raw materials into the Product;
      2. the Company shall be under no obligation to conduct any tests (visual, physical or otherwise) on the raw materials supplied to it by the Customer to check the quality, condition, state and / or suitability of the raw materials before the Company incorporates them into the Product;
2. CUSTOMER’S STATUS
   1. The Customer confirms that they have the express authority to bind any business on whose behalf the Customer purchases Products from the Company.
   2. These Terms and any document expressly referred to in them constitutes the entire agreement between the Customer and the Company. The Customer confirms that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in these Terms or any document expressly referred to in them.
   3. The Customer will be responsible for complying with any and all applicable laws, rules and regulations of the location from which the Customer accesses or purchases Products from the Site. The Site should not be accessed in (and/or Products purchased from) any location where for any reason the publication or availability of the Site or the purchase or import of the Products is prohibited. The Company does not represent or warrant that the Site complies with any and all applicable laws, rules and regulations in all jurisdictions. If the Customer is in any doubt, the Customer should seek legal advice in the applicable jurisdiction.
3. HOW THE CONTRACT IS FORMED BETWEEN THE CUSTOMER AND THE COMPANY
   1. By submitting an e-mail order to the Company at sdusasales@gardensalive.com, a Customer confirms that it wishes to place an order for the Company’s Products. When submitting an e-mail order to the Company please remember to include the following details:
      
      

      (a) precise description of the Products the Customer would like to order;

      (b) size;

      (c) shape;

      (d) quantity;

      (e) supplier of raw materials (such as seeds); and

      (f) any other requirements.

   2. Please remember to carefully check and amend any errors before submitting an e-mail order to the Company. The Company will not be liable for any errors or inaccuracies in the Customer’s order, although the Company will use reasonable efforts to clarify any areas of uncertainty if they are clear from the face of the Customer’s order before confirming acceptance.
   3. After the Customer places an e-mail order, the Company will confirm acceptance of the Customer’s order by sending the Customer an e-mail from the Company’s Sales Manager only acknowledging that the Company has received the Customer’s order, accepted the order, and confirmed the delivery details (the “Acceptance E-mail”) Any change, expedite, hold, or cancellation to an order requested by the Customer following issuance of an Acceptance E-Mail by the Company is subject to the Company’s written consent and any applicable price adjustment. Cancellations requested by the Customer after the issuance of an Acceptance E-mail by the Company may incur charges for work in process, raw materials, and a reasonable profit.
   4. Once the Company sends the Customer an Acceptance E-mail, the Company will use reasonable efforts to prepare the Products promptly, provided, however, the Customer acknowledges that there are factors in the production process outside of the Company’s control (such as procuring raw materials, such as seeds, from third party suppliers and transit delays), so the Company cannot (and does not) guarantee any specific turnaround times or delivery date. The Company will not be liable for any delay between the sending of an Acceptance E-mail to the Customer, and final delivery of the Products to the Customer.
   5. Once the Products are ready for dispatch, the Company will notify the Customer by e-mail that the Products have been dispatched, and will also include an invoice for the Products, shipping instructions, and a packing note (the “Dispatch Confirmation”).
   6. The Customer will be required to pay any invoice for Products within thirty (30) days of the date of the invoice, unless otherwise set out in the Acceptance E-mail sent by the Company. If the Company purchases raw materials (such as seeds) from third party suppliers on behalf of the Customer in accordance with Section 1.2, or the Company incurs any costs or expenses in connection with any custom order placed by the Customer, and through no fault of the Company, the Customer’s order is not able to be fulfilled, the Customer shall reimburse the Company for any and all costs and expenses incurred by the Company in purchasing such items at the request of, and on behalf of, the Customer and/or in connection with such custom order, within thirty (30) days of the date of any invoice by the Company to the Customer for reimbursement of such costs and expenses.
   7. The Customer agrees to pay invoices issued by the Company by wire, check or credit card, details for which will be contained on the invoice issued by the Company.
   8. The Company reserves the right to accept or reject any order submitted by the Customer in its sole discretion.
   9. No Contract or agreement shall exist or be legally binding on the Company or the Customer unless and until the Company sends an Acceptance E-mail to the Customer for a particular order.
4. COMPANY’S RIGHT TO AMEND OR MODIFY TERMS

   The Company reserves the right to amend or modify any or all of these Terms, from time to time, including, but not limited to, the following:

   (a) changes in how the Company will accept payment from the Customer;

   (b) changes in relevant laws and regulatory requirements;

   (c) changes in the Company’s order/delivery or administrative processes; and

   (d) changes in the types of Products that the Company makes available via the Site.

5. DELIVERY
   1. The Company will use reasonable efforts to fulfill an order by the estimated delivery date set out in the Dispatch Confirmation. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If the Company is unable to meet the estimated delivery date for any reason, including, but not limited to, an Event Outside Our Control (as defined herein), the Company will contact the Customer with a revised estimated delivery date. The Company shall not be liable for any delay in delivery of the Products that is caused by the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply and delivery of the Products.
   2. Delivery terms are Free on Board (FOB) shipping point with the Products to be made available at the Company’s facility located at Gardens Alive, Inc. DBA Seed Developments USA, 110 W. Elm Street, Tipp City, OH 45371 (the “Shipping Point”).
   3. Risk of loss transfers to the Customer upon delivery when Products are placed at the Customer’s disposal at the Shipping Point.
   4. The Company will make reasonable efforts to deliver the quantity of Products the Customer has ordered, provided, however, the Customer acknowledges and agrees that, given the nature of the manufacturing process, it is not always possible to deliver the exact quantity of Products ordered. If the Company delivers up to and including ten percent (10%) more or less than the quantity of Products ordered, then the Customer may not reject them.
   5. The Customer shall inspect the Products within ten (10) days after delivery. Any nonconformity must be reported to the Company in writing with reasonable detail within that period; otherwise, the Products are deemed accepted by the Customer, and any and all claims are waived.
   6. The Company may deliver the Products in installments, which shall be invoiced and paid for separately in accordance with Section 9. Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment, nor shall it excuse payment for any other installment.
6. INTERNATIONAL DELIVERY
   1. The Company delivers FOB shipping point at the Shipping Point, unless otherwise agreed in writing in advance.
   2. If the Customer orders Products from the Site for delivery outside the USA, the order may be subject to import and export duties, ad valorem fees, excise and other taxes which are applied when the delivery leaves the USA and reaches that destination. Please note that the Company has no control over these charges, and the Company cannot predict their amount.
   3. The Customer will be solely responsible for the obtaining of and payment for any such export and import duties, ad valorem fees, excise and other taxes or other official authorizations required. Please contact your local customs office for further information before placing your order.
   4. The Customer must comply with all applicable laws, rules and regulations of the country for which the Products are destined. The Company will not be liable or responsible for any violations by the Customer.
7. TITLE
   1. Title to the Products shall not pass to the Customer until the earlier of:

      (a) the date the Company receives payment in full and in cleared funds only for the Products and any other products that it has supplied to the Customer in respect of which payment has become due, including all applicable delivery charges, in which case title to the Products shall pass at the time of payment of all such sums; and

      (b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in Section 7.3, provided, however, that the Customer shall remain liable to the Company for payment of any and all invoices for the Products which such Customer resells, if payment for such Products is not received by the Company.

   2. Until title to the Products has passed to the Customer, the Customer shall:

      (a) store the Products separately from all other products held by the Customer so that they remain readily identifiable as the Company’s property;

      (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

      (c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

      (d) notify the Company immediately if the Customer becomes subject to any of the following events: (i) the Customer shall become insolvent, suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, makes any general assignment for the benefit of creditors, the appointment of a receiver or similar trustee for the Customer’s assets, or files a voluntary petition in bankruptcy (or has commenced it and not dismissed or stayed within forty-five (45) days) any proceeding or request for relief under any bankruptcy, insolvency or similar laws now or hereafter in effect in the United States or any state or territory thereof, or any foreign jurisdiction; (ii) the Customer commences any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of Customer; or (iii) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; (iv) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; and

      (e) give the Company such information relating to the Products as the Company may require from time to time.

   3. Subject to Section 7.4, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Company receives payment for the Products. However, if the Customer resells the Products before that time:

      (a) the Customer does so as principal and not as agent of the Company; and

      (b) title to the Products shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs; and

      (c) the Customer shall remain liable to the Company for payment of any and all invoices for the Products which such Customer resells, if payment for such Products is not received by the Company.

   4. If before title to the Products passes to the Customer, the Customer becomes subject to any of the events listed in Section 7.2 (d), then, without limiting any other right or remedy the Company may have:

      (a) the Customer's right to resell the Products or use them in the ordinary course of its business ceases immediately; and

      (b) the Company may at any time: (i) require the Customer to deliver up all Products in their possession which have not been resold, or irrevocably incorporated into another product; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored to recover them.

   5. The Company may suspend manufacture or delivery, or require payment in advance or other security, if Customer is late in payment, or if the Company reasonably deems the Customer’s creditworthiness impaired. The Company may cancel any undelivered portion of an order for breach or failure to provide adequate assurance within five (5) days of request.
8. PRICE OF PRODUCTS AND DELIVERY CHARGES
   1. The prices of the Products will be set out in the Acceptance E-mail. The Company takes all reasonable care to ensure that the prices of Products are correct at the time when the relevant information was entered onto the system. However, if the Company discovers an error in the price of Product(s) the Customer ordered, the Company will notify the Customer of this error as soon as reasonably practicable.
   2. Prices for the Products may change from time to time, but changes will not affect any order which the Company has confirmed with an Acceptance E-mail.
   3. The price of a Product excludes all applicable sales, use, excise, value added tax, ad valorem fees and other taxes, export and import duties, and other taxes and charges imposed by any governmental authority. The Customer is responsible for all such amounts.
   4. The Customer will pay all charges for delivery, unless otherwise specified in the Acceptance E-mail.
9. PAYMENT

   1. The Customer can only pay for Products by way of wire, check or credit card, details of which will be contained in the Acceptance E-mail.

      Time for payment shall be of the essence of the Contract.

   2. The Company will invoice the Customer for the Products in U.S. Dollars, unless otherwise agreed and payment shall be sent to the Company in the same currency.
   3. If the Customer fails to make a payment to Company by the due date set forth in the Acceptance E-Mail or the due date set forth in any other invoice or demand for payment, then, without limiting any rights or remedies which the Company may have available under the Contract, the Customer shall pay interest on the outstanding amount due at the lesser of 1.5% per month, or the maximum rate permitted by applicable law, from the date such amount was due compounded daily, whether before or after judgment.
   4. The Customer shall reimburse all reasonable costs of collection of the Company, including attorneys’ fees and expenses, for any amounts not paid when due.
   5. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. THE COMPANY’S LIABILITY TO THE CUSTOMER

    1. Where purchasing our Products as a business:

       (a) Nothing in these Terms limit or exclude the Company’s liability for: (i) death or personal injury caused by our gross negligence; (ii) fraud or fraudulent misrepresentation; (iii) any implied or express terms or conditions which cannot be excluded or limited under the applicable law.

       (b) Subject to Section 10.1(a), the Company will under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for: (i) any loss of profits, sales, business, or revenue; (ii) loss or corruption of data, information or software; (iii) loss of agreements or contracts; (iv) loss of business opportunity; (v) loss of anticipated savings; (vi) loss of or damage to goodwill; or (vii) any indirect or consequential loss.

       (c) Subject to Section 10.1(a) and Section 10.1(b), the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Products actually paid for with respect to a particular Acceptance E-Mail. Customer’s EXCLUSIVE REMEDY for any claim relating to the Products is, at the exclusive option of the Company, either repair, replacement, or refund of the purchase price paid for the affected Products, subject to the notice and return requirements herein. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESE REMEDIES ARE EXCLUSIVE.

    2. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE PRODUCTS ARE PROVIDED ‘AS IS’ AND ‘WITH ALL FAULTS,’ AND THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW
    3. Where the Company purchases raw materials (such as seeds) from third party suppliers on behalf of the Customer in accordance with Section 1.2, the Company accepts no liability for any losses arising from any defect or quality of the raw materials provided by such third party supplier, except where any defect can be shown to have been caused as a direct result of the Company’s gross negligence.
    4. Where the Customer sends the Company raw materials (such as seeds) to be incorporated into the Products in accordance with Section 1.3, the Company accepts no liability for any losses arising from any defect or quality of the Products (which incorporate such raw materials), except where any defect can be shown to have been caused as a direct result of the Company’s gross negligence.
    5. Where the Customer send the Company any other materials (such as retail packaging, shipping or warehousing cartons) to be incorporated into the overall order, the Company accepts no liability for any loss or damage to such materials, except where any loss or damage can be shown to have been caused as a direct result of the Company’s gross negligence.
11. INDEMNIFICATION

    The Customer shall defend, indemnify, and hold harmless the Company, its affiliates, and its and their respective employees, agents, directors, officers, shareholders, members, managers, subsidiaries, successors and assigns, from and against any and all claims, demands, suits, actions, causes of action, allegations, investigations, proceedings, damages, losses, liabilities, judgments, penalties, fines, settlements, costs, and expenses (including reasonable attorneys’ fees, costs and disbursements), arising out of or relating to: (a) the Customer’s specifications, designs, or instructions; (b) raw materials, packaging, or other items supplied or directed by the Customer; (c) the Customer’s purchase, use, resale, distribution, storage, integration, modification, misuse, marketing, import/export, or regulatory compliance relating to the Products; (d) any allegation that a Product manufactured to the Customer’s specifications infringes or misappropriates any intellectual property right; (e) the Customer’s breach of any of these Terms, the Contract, or any other agreement between the Customer and the Company; (f) the Customer’s negligence, strict liability or willful misconduct; (g) the Customer’s violation of any applicable law, rule or regulation; or (h) any third-party claim for bodily injury to or death of any person, or for damage to, or loss of use of, any property, arising out of or in connection with any act or omission of the Customer, the Customer’s breach of these Terms, the Contract, or any other agreement between the Customer and the Company, or the Customer’s negligence or willful misconduct.

12. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
    1. All intellectual property and proprietary rights in the Company’s designs, formulations, processes, tooling, samples, and related materials are and remain the exclusive property of the Company. No rights are granted to the Customer in connection therewith except a limited, non-exclusive right to use and resell Products as delivered.
    2. Each party shall keep confidential all nonpublic information disclosed by the other in connection with the Contract and use it solely to perform the Contract.
13. EVENTS OUTSIDE OF THE COMPANY’S CONTROL
    1. The Company will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under a Contract that is caused by an Event Outside Our Control. An “Event Outside Our Control” is defined as any act or event beyond the reasonable control of the Company, including, without limitation, strikes, lock-outs, shortages of labor or materials, or other industrial action by third parties, price spikes, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport or non-performance by our suppliers or subcontractors
    2. If an Event Outside Our Control takes place that affects the performance of the Company’s obligations under a Contract:

       (a) the Company will contact the Customer as soon as reasonably possible to notify the Customer;

       (b) the Company’s obligations under a Contract will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects delivery of Products to the Customer, the Company will arrange a new delivery date with the Customer after the Event Outside Our Control is over.

14. COMMUNICATIONS BETWEEN THE COMPANY AND THE CUSTOMER
    1. When the Company refers, in these Terms, to "in writing", this will include e-mail.
    2. If the Customer wishes to contact the Company in writing, or if any clause in these Terms requires the Customer to give the Company notice in writing, the Customer can send such notice to the Company by e-mail to sdusasales@gardensalive.com, or by mail to Seed Developments USA at 230 Mary Avenue, Greendale, IN 47025.
    3. If the Company must contact the Customer or give the Customer notice in writing, the Company will do so by e-mail to the address the Customer has provided to the Company in the order.
    4. Any notice given by the Customer to the Company, or by the Company to the Customer, will be deemed received and properly served (a) on the date of transmission, if delivered by e-mail (with confirmation of transmission) if sent during normal business hours, or on the next business day following transmission, if sent after normal business hours, (ii) the next business day following delivery, or refusal of delivery, if delivered by a reputable express overnight delivery service, (iii)the third business day following day of deposit of such notice with the United States Postal Service, if sent by certified or registered mail, return receipt requested, or the fifth business day after the date of posting if in Canada or elsewhere.
15. GOVERNING LAW; JURISDICTION
    1. The Terms, Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation, shall be governed by and construed in accordance with the law the state of Ohio.
    2. The Customer and the Company irrevocably agree that the courts of the state of Ohio shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
16. OTHER IMPORTANT TERMS
    1. This Contract is between the Customer and the Company. No other person shall have any rights to enforce any of its terms.
    2. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
    3. If the Company fails to insist that the Customer perform any of its obligations under these Terms, or if the Company does not enforce the Company’s rights against the Customer, or if the Company delays in doing so, that will not mean that the Company has waived its rights against the Customer and will not mean that the Customer does not have to comply with those obligations. If the Company does waive a default by the Customer, the Company will only do so in writing, and that will not mean that the Company will automatically waive any later default by such Customer.
    4. The Company’s rights and remedies are cumulative and in addition to any other rights at law or equity.
    5. The Sections relating to payment, title, warranty disclaimers, limitations of liability, indemnities, confidentiality, intellectual property, and governing law/jurisdiction shall survive the expiration or termination of the Contract.