TERMS & CONDITIONS OF SALE Bedding plants 2019 Benary Plus Inc., Watsonville CA, May 2017 These terms and conditions shall govern all orders for seeds, unrooted cuttings, plants, supplies and other materials (merchandise) placed with Seller. All negotiations with salesmen or other agents of Seller are merged herein. Purchaser acknowledges that it has not relied on any representation not contained herein. No modification of these terms and conditions shall be effective unless in writing signed by Seller. Placement of any order shall constitute Purchaser’s offer to purchase the merchandise on these terms and conditions. All orders are subject to acceptance or rejection by Seller at its offices in Watsonville, California and shall be confirmed by Seller. Limitation of Warranty Seller warrants, to the extent required by law, that merchandise conforms to the description appearing in Seller’s catalog and on container labels, within recognized tolerances. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. Certain merchandise may be separately warranted by the manufacturer. Seller does not adopt or ratify any manufacturer warranties, express or implied, and Seller shall have no liability thereunder. Seller does not adopt or ratify any manufacturer warranties, express or implied, made by Purchaser upon resale of the merchandise, and Seller shall have no liability thereunder. 56 Terms & Conditions of Sale Limitation of Remedy PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE REFUND OF THE PURCHASE PRICE. SELLER’S LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE AMOUNT OF THE PURCHASE PRICE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. Excluded Use Merchandise is not intended for immediate or eventual sale to commercial growers, truck farmers, market gardeners or others who sell fruit or vegetables to the end user. Indemnity By accepting merchandise, Purchaser agrees to defend Seller, to hold it harmless and indemnify it from and against any claim or loss asserted by any or all transferees or users of merchandise who are not notified by Purchaser in writing of Limitation of Warranty and Limitation of Remedy in language substantially equivalent to that contained in these terms and conditions. Prices All prices are subject to change without notice. The price in effect at time of shipment will prevail. Prices do not include installation; Seller takes no responsibility, and shall have no liability for installation. Additional processing and handling charges may be added. Payment Payment is due in accordance with terms specified on the invoice. Payment is due in invoiced currency and in accordance with the terms specified on invoice. In the event of default in the payment of any amount when due, and in addition to all other rights and remedies available to Seller, SELLER SHALL BE ENTITLED TO COLLECT A LATE CHARGE OF 2% PER MONTH (24% PER YEAR) OR THE MAXIMUM RATE ALLOWED BY LAW, WHICHEVER IS LESS, ON ALL AMOUNTS PAST DUE FROM THE DATE DUE UNTIL THE DATE PAID. A FEE OF $25.00 WILL BE CHARGED FOR ANY RETURNED CHECK, DECLINED EFT TRANSACTION OR DECLINED BANKCARD TRANSACTION. Notice & Return Seller shall have no liability for any defect unless notice is given promptly, not to exceed thirty (30) days after such defect is or should have been discovered. No merchandise may be returned without Seller’s prior written authorization. Requests to return merchandise must be made within ten (10) days after delivery. All returns must be in accordance with Seller’s shipping instructions with freight paid by Purchaser. All requests for return of merchandise must be made to Benary Plus Customer Service in Watsonville, CA. The Purchaser will also be asked to provide a letter stating the reason for the return. The order number or invoice number must accompany the return in order to expedite the credit. NOTE: No seed will be accepted without prior notification to Benary Plus Customer Service in Watsonville, CA. Effective immediately, seed that is returned without authorization will not be accepted and credit will not be issued. Seed must be returned in the original condition within thirty (30) days of the ship date for full credit. No open packages will be accepted. If seed is returned within thirty one (31) to sixty (60) days after ship date, full credit will be given but a 15% restocking charge will be assessed. No credit or replacement will be given for seed returned after sixty one (61) days from our ship date. Delays, Shortages & Substitutions Seller shall not be responsible for delays in delivery or for losses resulting from delays. Seller reserves the right to make partial shipment. In the event of shortages, Seller may substitute such other, similar merchandise as is available. Plant Protection Varieties described herein may be covered by the Flowering-Only License Agreement, United States Plant Variety Protection, United States Plant Patents, Utility Patents, and/or Plant Breeders Rights. These varieties may not be reproduced without authorization. The breeder or authorized representative has the right to inspect customers nurseries during normal business hours to assess compliance with the restrictions on use of protected varieties. Severability If at any time any one or more of the provisions of these terms and conditions become invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of these terms and conditions shall not be in any way impaired. Non-Waiver The failure of Seller to enforce at any time or for any period of time, the provisions of these terms and conditions, shall not be construed as a waiver of such provisions or of the right of the Seller thereafter to enforce each and every such provision. Arbitration All disputes arising under this Contract shall be settled by final and binding arbitration in the City of San Jose, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The parties may agree on the selection of a single arbitrator, but in event they cannot agree, each party shall select an arbitrator and the two selected arbitrators shall select a third arbitrator. The award by the arbitrator or arbitrators shall be final and judgement upon the award rendered may be entered in any court having jurisdiction thereof. Governing Law THIS AGREEMENT AND ANY SALES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAW RULES. Complete Agreement These terms and conditions of Sale and Seller’s acceptance form constitutes the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions, or warranties. If paying by Pre-Authorized Debit (PAD), or EFT, please note you have waived your right to receive pre-notification of the amount of the PAD and agreed that you do not require advance notice of the amount of PADs before the debit is processed. You have certain recourse rights if any a debit does not comply with these terms. For example, you have the right to receive a reimbursement for any PAD that is not authorized or is not consistent with this PAD agreement. To obtain more information on your recourse rights, contact your financial institution. Freight & Handling Charges, Inspection, Damaged Goods The freight and handling charge on Purchaser’s invoice covers shipment of the merchandise to Purchaser’s destination, and replacement or credit for damaged merchandise if the steps listed here are followed. PURCHASER MUST NOT REFUSE OR RETURN MERCHANDISE. OTHERWISE PURCHASER WILL FORFEIT ALL ITS RIGHTS UNDER THESE TERMS AND CONDITIONS AND UNDER APPLICABLE LAW AND SHALL REMAIN LIABLE FOR THE PURCHASE PRICE, FREIGHT AND HANDLING CHARGES. When Purchaser receives shipment, it agrees to: 1) Count all cartons. 2) Inspect all cartons for external damage. 3) Check for open or resealed cartons. 4) Note any damages, shortages, open or resealed cartons on the delivery receipt; the carrier’s representative must also sign the receipt. 5) Open all boxes immediately and inspect for damage such as scorched, frozen or broken plants; material shortages; etc. NOTIFY SELLER IMMEDIATELY IF A SHIPMENT IS DAMAGED. Claims must be filed within 48 hours of delivery. Report the damage to the Benary Plus Customer Service in Watsonville, CA and receive details on what is needed to file a claim. Cancellation Policy Cancellations for unrooted cuttings must be received at least 2 weeks prior to scheduled ship date. Cancellations for seed must be received at least 5 days prior to scheduled ship date.
LEGEND & INDEX Bedding Plants 2019 Product Index Product Page Product Page Product Page Ageratum 6 Dahlia 17 Lobularia 31 Argyranthemum 7 Delosperma 20 Pelargonium 32 Asteriscus 10 Diascia 21 Petunia 43 Bidens 10 Euryops 21 Portulaca 46 Brachyscome 11 Felicia 22 Salvia 47 Buddleja 11 Fuchsia 22 Sanvitalia 48 Calendula 12 Glechoma 27 Scaevola 48 Calibrachoa 12 Helichrysum 27 Sutera 49 Chamaesyce 14 Impatiens 28 Thunbergia 50 Coleus 15 Jamesbrittenia 30 Verbena 51 Convolvulus 16 Laurentia 30 Cuphea 16 Lobelia 30 Legend Symbol Meaning Symbol Meaning Seed propagation Growth temperature (°F) Vegetative propagation Pruning / pinching Bulb - propagated Use of growth regulators Upright habit (x) As needed Semi-trailing habit x One to two times Trailing habit xx Multiple times Fragrant Delivery according to the regulation for trial seed Pollinator plant P Pack Pot size (inches) OUT Suitable for outdoors Cultivation time (weeks) HB Cultivation in hanging baskets is possible Natural flowering period (month) Volmary variety / series
BEDDING PLANTS 2019
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