Grandpa's Orchard
Grandpa's Choice™ Varieties
Grandpa tested hundreds of varieties over the years and the best of the best are his "choices".
Grandpa's Orchard

Terms, Conditions of Sale, and Warranty Information

www.GrandpasOrchard.com
ONLINE AND WEBSITE SALES TERMS AND CONDITIONS OF SALE

The following terms and conditions of sale represent the entire Agreement between Buyer and Seller, and regulate all sales, purchases, and deliveries of plant and product material made by the BUYER from the SELLER, (also known as Grandpa's Orchard, LLC, PO Box 773, Coloma, MI 49038), through its website www.GrandpasOrchard.com or via other forms of communications to same.

1. PRICES AND SALES TAXES: All prices quoted herein are subject to change without notice. Residents of the State of Michigan shall be charged 6% sales tax on all orders of plant materials and supplies.

2. PAYMENT: UNLESS OTHERWISE AGREED IN WRITING SIGNED BY BUYER AND SELLER, BUYER WILL MAKE PAYMENT IN FULL PRIOR TO SHIPMENT, OR IF CREDIT TERMS HAVE BEEN APPROVED BY THE SELLER, WITHIN THIRTY (30) DAYS OF DATE OF PLANT MATERIAL INVOICE. SERVICE CHARGES WILL BE CHARGED ON OVERDUE ACCOUNTS AT THE MAXIMUM LEGAL RATE OR 1 1/2% PER MONTH (18% PER ANNUM), WHICHEVER IS LESS, ON ACCOUNTS UNPAID MORE THAN SIXTY (30) DAYS FROM INVOICE DATE.

3. ORDER HANDLING AND SHIPPING CHARGES AND INFORMATION:
All material shall be shipped F.O.B. from a Grandpa's Orchard, LLC fulfillment center and shipping and/or handling charges shall be added to Buyer's invoice.
In planning your planting dates, please allow time for transit. We will ship most orders via UPS, unless otherwise requested and recompensed for it. UPS does not provide protective services, so we will avoid shipping at times when there is a danger of freezing en-route.
During the SPRING shipping season, we will attempt to ship plant materials at times during the February, March, April and May seasons that will allow planting in your area conducive to good plant growth.
During the FALL shipping season, we will most likely ship during a short window in late October or early November, when we can be sure trees are sufficiently "hardened off" to ship and when the weather permits.

3. STATE AND FEDERAL PHYTOSANITARY LAWS: Due to State and/or Federal Phytosanitary Restrictions, Rules or other reasons, we may not be able to ship certain plant materials into certain areas or states. Any inability to ship plants for these reasons is beyond Seller's control, and Seller may not be held liable. We apologize for any inconvenience this may cause. We will not ship to Alaska or Hawaii under any circumstances.

4. WARRANTIES AND SELLER'S LIABILITY: Seller warrants that its plant materials are of the varieties true to name as described in this invoice. Upon written proof to Seller's satisfaction submitted by November 1st following the first fruiting season that the plant materials delivered to Buyer are not of the varieties described in the invoice, Seller, at it's discretion, will either replace such original plant material or refund the portion of the original purchase price that relates to such plant materials.
Any other claims concerning plant materials must be submitted by Buyer in writing to Seller within the following periods after receipt of such plant materials by Buyer.

A. Within 10 days of receipt of order: Claims for incorrect counts, sizes, or damage, subject to the provision of the sections and statements below.

B. By August 1st following date of delivery of SPRING shipped trees: Claims for mortality of bareroot fruit, flowering or shade trees and, claims for variety errors on bareroot flowering or shade trees.

C. By June 1st following delivery of FALL shipped trees: Claims for mortality of bareroot fruit, flowering or shade trees and, claims for variety errors on bareroot flowering or shade trees.

This warranty does not apply to plant materials damaged or injured during shipments on contracted carriers, or due to Buyer's negligence, improper care, unreasonable use or abuse. Under no circumstance shall Seller be liable for any amount greater than the original purchase price.

Disclaimer of Warranties:
With the exception of the Limited Warranty set forth above, the Seller disclaims all warranties of any kind, express or implied, specifically including but not limited to the Warranty of Merchantability and the Warranty of Fitness for a Particular Purpose. The Seller cannot warrant either the productivity (either in terms of the yield, size, quality, and color) or the marketability of the potential crops due to factors beyond its control after the delivery of the products into the hands of the Buyer. The factors which introduce variables that can affect productivity and marketability include but are not limited to (a) environmental conditions such as the growing year's weather conditions, local "microclimates," draught, cold, heat, wind, and maturity rate variables such as elevation and geographic location of the orchard; (b) horticultural conditions and growing practices such as soil type, soil nutrient levels, the pH of the soil, soil drainage, irrigation practices, planting density, pruning practices, the nature of the canopy and canopy development, trellis configuration, fertilization practices (such as nitrogen levels), the tree's vigor (and whether the tree is being "pushed", age of the trees, prior use of the land, the tree's uptake of nutrients (including nitrogen) and water, the type of rootstock, the thinning practices and the location of apples on the tree, and the timing of the harvest; and (c) conditions including but not limited to the timing of harvest, crop size, variety.

Variety, Cultivar, Trademarks & Trade Names:
Fruit trees are generally categorized by variety, such as Red Delicious, Golden Delicious, Gala, Fuji, Braeburn, etc. Within each variety, sport mutations may be discovered, which may result in new cultivars of that variety. These cultivars have individual characteristics making them unique in some respects from other cultivars within the same variety. Sometimes new varieties or cultivars are patented and sometimes they are not. Often a nursery will market a cultivar using a trademark or brand name separate from the cultivar name or varietal name. The same cultivar may be sold under different trademarks or brand names by different nurseries. Buyers should be alert to the fact that a fruit tree product sold by SELLER under one trademark may be the same cultivar marketed by another nursery under a different trademark. The use of a trademark or brand name to market a cultivar does not necessarily mean that the product is a cultivar sold exclusively by Seller.

Replacement and Replacement Price of the Product.:
The Warranty provides the Buyer with the option of recovering the purchase price of the product, or replacement of the product, as its limited exclusive remedies in the event the Buyer establishes a breach of contract. In the event that the Buyer elects to recover the price of the product, the dollar value shall be the actual purchase price paid by the Buyer for the product, plus any associated tax(es), shipping, assessment, or handling at the time of the original contract. It shall not be the price of a new product at any subsequent period of time, and it shall not be the dollar value of a matured producing tree at any subsequent period of time. If the Buyer having established a breach of the contract elects as a remedy the replacement of the product, it shall be replaced with a product of like kind as of the original date of delivery of the product to the Buyer. This shall be deemed completely satisfied by delivery of a qualifying replacement to the Buyer. However, if the Seller is unable to locate replacement material, then the parties may agree upon a substitution upon agreeable terms and conditions. If the materials are not available and the parties are not able to come to an agreement on substitution, then the Buyer must elect the refund of the purchase price. Seller shall not be responsible for the costs (if any) of actually removing the old product or replacing it with the new product.

Seller is not making any recommendations as to Variety or Quantity - Those Decisions are Solely the Buyer's:
Seller offers several different varieties of products for sale. Seller is not in the business of providing consulting services or recommendations to Buyers regarding what varieties of fruit trees they should purchase, planting locations and densities. Those decisions are beyond the ability of Seller to make given all of the variables and thus those decisions are solely the Buyer's. Buyer shall make no claim against Seller based on an allegation that Seller made a recommendation that was either incorrect or negligent, and Buyer hereby disclaims, waives and relinquishes any such right or cause of action.

Marketing Materials:
Like many other nurseries, Seller may publish marketing materials and may also run advertisements promoting its products. The pictures and descriptions of the fruit in these publications are intended to be examples of ideal fruit under ideal conditions, and are not intended to be representative examples of all of the fruit that will be produced by the fruit trees. The variables set forth elsewhere herein can and do affect the fruit, and the pictures and descriptions of the fruit in the above-referenced publications are not intended to be a warranty (either express or implied) as to the quality or characteristics of the fruit under any and all combinations of potential variables. Buyer should not rely on those pictures or descriptions of fruit in those marketing materials or advertisements as a basis for its decision to purchase the product as those pictures and descriptions do not necessarily depict the resulting crop for any of a number of reasons beyond our control.

THE FOREGOING WARRANTY IS A PART OF THE BARGAIN HEREIN AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REPLACEMENT OF THE PURCHASED PLANT MATERIALS F.O.B. AT THE PLACE WHERE SELLER ORIGINALLY SOLD TO BUYER, OR REFUND OF THE ORIGINAL PURCHASE PRICE, AT SELLER'S OPTION, IS BUYER'S EXCLUSIVE REMEDY UNDER THIS WARRANTY, AND IN NO CASE SHALL SELLER BE RESPONSIBLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES REGARDLESS OF WHETHER THE PROBLEMS OR DEFECTS ARE DISCOVERABLE OR LATENT. THE EXHIBITION OF A SAMPLE OR MODEL OF THE GOODS SHALL NOT BE REGARDED AS PART OF THE BASIS OF THE BARGAIN AND SHALL NOT CREATE AN EXPRESS OR IMPLIED WARRANTY THAT THE WHOLE OF THE GOODS SHALL CONFORM TO THE SAMPLE OR MODEL. THE GOODS ARE SOLD "AS IS" AND "WITH ALL FAULTS", SUBJECT ONLY TO THE EXPRESS WARRANTY SET FORTH ABOVE.

5. CONTINGENCIES: Seller reserves the right without notice to Buyer to substitute the closest possible size at Seller's current corresponding price of plant material in stock if Seller is unable to furnish size ordered by buyer.

6. RISK OF LOSS OR DAMAGE: All risk of loss or damage to the plant material shall be on Buyer from and after delivery to a carrier or to Buyer, whichever delivery occurs first, and such loss shall not relieve Buyer from any obligations.

7. DEFAULT AND REMEDIES: Time is of the essence of the agreement. If Buyer becomes insolvent, fails to make any payment within the time required, or fails to perform any other obligation imposed by this invoice, or by law, Buyer shall be in default and Seller may immediately enforce any and all remedies provided by law.

8. COSTS AND ATTORNEY'S FEES: If Buyer fails to perform in accordance with this agreement; Buyer shall pay all collection costs and attorney fees incurred by Seller, whether or not suit is filed. The parties agree that Berrien County, Michigan is the site of the transaction and the proper venue for any action regarding this agreement.

9. ASSIGNMENT: The rights and benefits of Buyer are personal to it and may not be transferred or assigned, voluntarily or involuntarily, without the prior written consent of Seller. Subject to this limitation, this invoice shall be binding upon and inure to the benefit of the parties, their successor and assigns.

10. NON-DELIVERY OF STOCK: Non-delivery of stock shall be excused in case of fire, frost, floods, drought, strikes, winter injury, and shortages of nursery stock, error in count or other causes beyond Seller's control.

11. PLANT PATENT RIGHTS: Under the laws of the United States, the owner of a plant patent has the right to control who propagates the patented plant. Similarly, the owner of a trademark for a plant variety or other product has the right to control who uses the trademark in commerce. It is a violation of the law to propagate any patented or trademarked plant material without the permission of the patent or trademark owner.

12. ENTIRE AGREEMENT: Buyer and Seller agree that this invoice is the complete and exclusive statement of the agreement between the parties relating to the subject mater of this invoice. Written acceptance of this order or acceptance of delivery of the plant materials constitutes acceptance of the above terms and conditions of sale.

13. SEVERABILITY: If any terms or conditions of this Agreement are deemed illegal, void or unenforceable for any reason, then that term or condition shall be severed from this Agreement. All remaining terms and conditions shall remain in full force and effect.