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Terms and Conditions of Sale

PRICING POLICY – All prices subject to change without notice.  All orders will be invoiced at prices in effect at the time of the requested delivery date.

BACKORDERS – All sales of Hort Americas, LLC products are subject to availability of stock on hand.  If an order calls for an item, which is temporarily out of stock, the product will be backordered until such product is available.  Please advise Hort Americas if backorders will not be accepted.  Backorders held over 60 days could be subject to cancellation without prior notice.

ACCEPTANCE – Acceptance of this agreement by Hort Americas shall be deemed to constitute a binding contract between the parties and Buyer agrees that this agreement may not thereafter be cancelled, countermanded or otherwise changed without the prior written consent of Hort Americas. This agreement supersedes any prior agreements, representations, or other communications between the parties relating to the subject matter set forth herein. No other terms and conditions shall apply including the terms of any purchase order submitted to Hort Americas by Buyer, whether or not such terms are inconsistent or conflict with or are in addition to the terms and conditions set forth herein. Hort Americas acceptance of Buyer’s purchase order is conditional upon Buyer’s acceptance of all the terms and conditions contained in this agreement. Any communication construed as an offer by Hort Americas and acceptance thereof is expressly limited to the terms and conditions set forth herein.

BUSINESS HOURS – Our main office and warehouse are located in Bedford, TX and is open 8:00 AM to 5:00 PM, CST, Monday through Friday. Customer “pick-ups” and deliveries must be scheduled in advanced.

TERMS – There are no minimum purchase amounts. New accounts shall be required to pre-pay or down-payments.  Hort Americas accepts MasterCard, Visa and Paypal.  Hort Americas may require full or partial payment guarantee in advance of shipment if it concludes that the financial condition of the Buyer so warrants.  Please allow adequate time for checks to clear before shipping.  US$75 will be charged for returned checks. Once credit has been established, terms of payment shall be net 30 days from date of invoice.  Interest shall accrue and Buyer agrees to pay interest at the rate of 2.0% per month on all overdue accounts where the applicable law permits.  Buyer shall be responsible for all reasonable costs of collection, including attorney’s fees. All Local, State, Provincial and Governmental Taxes are the responsibility of the Buyer, unless specified otherwise on the order confirmation or invoice.

DEPOSITS – Any special order or custom made products require deposits when the order is placed.  Our standard deposit terms are 40% with the order, 50% prior to shipping from the factory and the final 10% upon delivery.  All deposits are non-refundable if the order is canceled or the specifications change after the order is placed.

TAXES – Buyer agrees that it will be responsible for filing all tax returns and paying applicable tax resulting from the purchase of the product (other than Hort Americas’ income tax), if any. In addition, if any other similar tax is determined to apply to Buyer’s purchase of the product from Hort Americas, Buyer agrees to indemnify and hold Hort Americas harmless from and against any and all such other similar taxes. All prices quoted are U.S. DOLLARS.

DELIVERY/SHIPMENTS – Promises of delivery from stock are subject to prior sale.  Delivery dates are not guaranteed but are estimated on the collection of necessary information and the absence of delays, direct or indirect.  Hort Americas will in good faith endeavor to meet estimated delivery dates.  Unless otherwise stated, all prices are F.O.B. shipping point. Title and all risk of loss shall be born by Buyer upon delivery by Hort Americas at place of location of delivery.  Should Hort Americas be responsible for any delivery or duty paid related charges, the responsibility is limited to customary and reasonably expected charges.  Any extraordinary charges with respect to delivery or duty paid (including, without limitation, customs exams or demurrage caused by delays or strikes) shall be the responsibility of Buyer, and Buyer agrees to indemnify and reimburse Hort Americas on demand with respect to such charges to the extent paid by Hort Americas.  Hort Americas shall not be liable for any delay in performance of this agreement or delivery of the products, or for any damages suffered by Buyer by reason of delay, when the delay is caused, directly or indirectly, by fire, flood, accident, riot, acts of God, war, governmental interference, strikes, embargoes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation, or any other causes beyond Hort Americas’ control.  If delay is caused by Buyer’s failure to furnish necessary information with respect to data and details for Buyer’s specifications, then Hort Americas may extend the date of shipment for a reasonable time.  HORT AMERICAS SHALL NOT BE LIABLE FOR ANY LOSS OF USE OR FOR ANY OTHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OR LOSSES DUE TO DELAY IN SCHEDULED DELIVERY. Claims for shortages in shipments shall be deemed waived and released by Buyer unless made in writing within five (5) days after Buyer’s receipt of shipment. Hort Americas’ responsibility for shipment shall cease upon delivery of the product to the customer location.  Hort Americas is able to ship out most orders by the following methods: Ocean Freight, Motor Truck, Parcel and Air Freight.  Normally Hort Americas routes shipments the most economical way unless otherwise instructed.  Air Freight is only used at the request of the customer.  NO DELIVERIES WILL BE MADE TO AN ADDRESS WITH A PO BOX NUMBER ONLY.  A STREET ADDRESS IS REQUIRED.  DO NOT RETURN ANY MERCHANDISE WITHOUT PERMISSION FROM HORT AMERICAS OR IT WILL BE REFUSED.

MOTOR TRUCK SHIPMENTS – The BILL OF LADING indicates that material shipped has now becomes Buyers property and is an acknowledgment by the Transportation Company of the receipt of the material in good condition.  Safe delivery is now the responsibility of the carrier.  EXAMINE THE SHIPMENT CAREFULLY BEFORE SIGNING FREIGHT BILLS.  If any damage is noted, or if the number of pieces received does not agree with the bill of lading, do not accept shipment without shortage or damage noted on the freight bill by the carrier’s agent; failure to do so may jeopardize Buyer’s recovery.  If any concealed damage or shortage is discovered when unpacking, leave material and packing as is and notify agent of carrier to inspect and make reference thereto on the freight bill.  Consult carrier for disposition of damaged articles.  Hort Americas will be glad to render assistance to trace and recover lost goods.  Buyer must make its claim promptly.  The transportation charges resulting therefore must not be deducted from the invoice, nor payment or invoices withheld awaiting adjustment of such claims, since it is the function of the carrier to guarantee safe delivery.  Check items received to the invoice.  If there is any discrepancy, contact us immediately.  Claims for shortage attributed to Buyer’s count in packing must be made within 2 days from the date shipment is received.

INSPECTION AND CLAIMS – Hort Americas is not responsible for damage after pickup by carrier.  Buyer agrees that it shall inspect the products immediately after receipt and promptly notify Hort Americas in writing of any non-conformity or defect. Buyer further agrees that failure to give such prompt notice shall constitute acceptance. Acceptance shall be final and Buyer waives the right to revoke acceptance for any reason, whether or not known by Buyer at the time of such acceptance. The giving of any such notice by Buyer shall automatically cause the provisions of the WARRANTY paragraph below to apply and govern the rights, obligations and liabilities of the parties with respect to such nonconformity or defect, provided under no circumstances shall rejection give rise to any liability of Hort Americas for incidental or consequential damages or losses of any kind.

CANCELLATION – Prior to delivery to place of shipment, this agreement may be cancelled only with Hort Americas’ prior written consent and upon terms indemnifying Hort Americas from all resulting losses and damages. Hort Americas shall have the right to cancel and refuse to complete this agreement if any term and/or condition governing this agreement is not complied with by Buyer. If Hort Americas cancels as above set forth, or if Hort Americas consents to a request by Buyer to cancel the whole or any part of this agreement, Buyer shall make reimbursement to Hort Americas, as follows: (i) any and all work that can be completed within (30) days from the date of notification to stop work on account of cancellation shall be completed, shipped and paid in full; and (ii) for work in progress and any materials and supplies procured or for which definite commitments have been made by Hort Americas in connection with the agreement, Buyer shall pay such sums as may be required to fully compensate Hort Americas for actual costs incurred, plus twenty percent (20%). Buyer may not cancel this agreement without Hort Americas’ consent or anytime after Hort Americas’ delivery to place of shipment.

RETURNS – Product returns will be accepted within three months of original shipment date. No material may be returned without prior authorization from our office.  Freight charges and a restocking charge of 30% are charged on all returns unless merchandise is defective (minimum charge US$75.00).  Please call us to arrange return of merchandise.  Special order items or items made to specification cannot be returned due to their special nature.

DELINQUENT ACCOUNTS – All accounts that are past due 60 days or more may ship C.O.D. without prior notification.

REMEDIES FOR BREACH – In no event shall Hort Americas, or any subsidiary or division thereof be liable for actual, direct, incidental, consequential or other damages or losses resulting from a breach of warranty including, without limitation, labor costs, third party costs, personal injury, emotional or mental distress, improper performance or work, penalties of any kind, loss of service of personnel, or failure of product to comply with any federal, state or local laws.

INDEMNIFICATION BY BUYER – Buyer hereby agrees to indemnify, release, defend and hold harmless Hort Americas, its subsidiaries, affiliates and parent, and their respective directors, officers, employees, agents,  representatives, successors, and assigns (each, an “Indemnified Party”) against any and all suits, actions or proceedings at law or in equity (including the costs, expenses and reasonable attorney’s fees incurred in connection with the defense of any such matter) and from any and all claims demands, losses, judgments, damages, costs (including legal fees), expenses or liabilities, to any person whatsoever (including Buyer’s and Hort Americas’ employees or any third party), or damage to any property (including Buyer’s property) arising out of or in any way connected with the performance or the furnishing of services or product under this agreement, regardless of whether any act, omission, negligence (including any act, omission or negligence, relating to the manufacture, design, repair, erection, service or installation of or warnings made or lack thereof with respect to any product furnished hereunder) of an Indemnified Party caused or contributed thereto. If Buyer fails to fulfill any of its obligations under this paragraph or this agreement, Buyer agrees to pay an Indemnified Party all costs, expenses and attorney’s fees incurred by such Indemnified Party to establish or enforce such Indemnified Party’s rights under this paragraph or this agreement. The provisions of this paragraph are in addition to any other rights or obligations set forth in this agreement.

GOVERNING LAWS – This agreement constitutes the entire agreement between the parties and shall be construed and enforced in accordance with the laws of the State of Texas. The parties agree that the proper and exclusive forum and venue in all legal actions brought to enforce or construe any of the provisions of this agreement shall be in the United States District Court for the Northern District of Texas or, if federal jurisdiction is lacking in such legal action, in the State Courts of Texas in Dallas County.   (Attorneys Fees – Should Hort Americs or Buyer default in the performance of any of the terms, covenants, agreements or conditions contained herein and either places the enforcement of the terms hereof or the collection of amounts due, or to become due hereunder in the hands of an attorney, or files suit upon same, the defaulting party shall pay the non-defaulting party’s reasonable attorney fees.  In the event of litigation between Hort Americas and Buyer, the prevailing party shall be entitled to recover from the other party, reasonable attorney’s fees.

AMENDMENT – No amendment, modification, or alteration of the terms of this document shall be binding unless the same is in writing, dated subsequent to the date of this document and duly executed by Hort Americas and Buyer.

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