Terms and Conditions
ATTENTION: PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS (“TERMS”), DO NOT USE THIS WEBSITE.
Use of Site. Eaton Farms, L.P. (“EFLP”), who is the owner and developer of the Bower & Branch brand of premium trees and related products as well as this website (“Site”), authorizes you to view and download the materials at this Site provided that you retain all copyright and other proprietary notices contained in the original materials on any copies of the materials. You may not modify the materials at this Site in any way or reproduce or publicly display, perform or distribute or otherwise use them for any public or commercial purpose. For purposes of these Terms, any use of these materials on any other website or networked computer environment for any purpose is prohibited. The materials at this Site are copyrighted and any unauthorized use of any materials at this Site may violate copyright, trademark and other laws. If you breach any of these Terms, your authorization to use this Site automatically terminates and you must immediately destroy any downloaded or printed materials.
Links to other Websites. Links to third party websites on this Site are provided solely as a convenience to you. If you use these links, you will leave this Site. If you decide to access any of the third party websites linked to this Site, you do this entirely at your own risk.
- The materials and services provided at this Site are provided “as is” without any warranties of any kind including warranties of merchantability, fitness for a particular purpose or non-infringement of intellectual property. EFLP further does not warrant the accuracy and completeness of the materials or services at this Site. EFLP may make changes to the materials and services at this Site or to the products and prices described in them, at any time without notice. The materials and services at this Site may be out of date and EFLP makes no commitment to update the materials and services at this Site. Contact an EFLP representative for information regarding the products, programs and services that may be available to you.
Limitation of Liability. In no event will EFLP, its suppliers, or other third parties mentioned at this Site be liable for any damages whatsoever (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of this Site, any websites linked to this Site, or the materials or information or services contained at any or all such websites, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. If your use of the materials, information or services from this Site results in the need for servicing, repair or correction of equipment or data, you assume all costs thereof.
Applicable Laws. This Site is administered by EFLP from its offices in Pennsylvania. EFLP makes no representation that materials or services at this Site are appropriate or available for use outside the United States and access to them from territories where their contents are illegal is prohibited. You may not use, export or re-export the materials or services at this Site or any copy or adaptation thereof in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations. If you choose to access this Site from outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws. These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to any principles of conflicts of laws.
- EFLP may revise these Terms at any time by updating this posting. You should visit this page from time to time to review the then-current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages at this Site.
Note: Anyone linking to this Site must comply with the Guidelines for Linking to this Site and all applicable laws.
BOWER & BRANCH TERMS AND CONDITIONS OF SALE
- General: The Bower & Branch Digital Partner Marketing, Sales and Licensing Agreement (“Digital Partner Agreement”) along with the terms and conditions of sale set forth herein (“Terms and Conditions”) constitute the full and final expression of the contract between Eaton Farms, L.P. (“EFLP”) who is the owner and developer of the Bower & Branch brand of premium trees and related products (the “Products”), and the digital partner of EFLP / buyer of the Products (“Buyer”). No quotation, order, or acknowledgment and no provision of these Terms and Conditions shall be subject to change in any respect except as agreed to in writing by an officer or other authorized representative of EFLP. Any order that contains terms and conditions in addition to or inconsistent with these Terms and Conditions shall not be binding upon EFLP unless acceptance thereof is made in writing by EFLP, and the failure of EFLP to object to provisions contained in any purchase order or other communication from the Buyer, shall not be construed as a waiver of these conditions nor an acceptance of any such provisions.
- Effect of the Digital Partner Agreement: In the event of any conflict between the Digital Partner Agreement (between EFLP and the Buyer) and these Terms and Conditions, the terms of the Digital Partner Agreement shall prevail.
- Prices: Any prices advertised by EFLP on the B&B web-site will be valid for the period of time which such price is present on the web-site with the exception that EFLP reserves the right to reject any sale for any reason, including for misprint in the price or advertisement. Prices advertised do not include applicable sales taxes, which will be added to the price the Buyer pays unless the Buyer provides EFLP with a valid and correct tax exemption certificate prior to the placement of the order. All prices are subject to change by EFLP, in EFLP’s sole discretion, without notice to the Buyer.
- Payment Terms & Invoicing: Standard terms to the Buyer determined by EFLP to have satisfactory credit are net thirty (30) days from the invoice date. Amounts past due are subject to a service charge of 1.5% per month or maximum contract rate as permitted by law. Payment of attorney’s fees and costs of collection shall be paid by the Buyer if incurred by EFLP to collect past due amounts. All quoted prices and payments shall be in U.S. dollars. Unless otherwise stated herein or agreed to in writing by EFLP, EFLP invoices the Buyer on the date that the Products are picked up by the Buyer or ten (10) days from the date which EFLP notifies Buyer that its Products are ready to be picked up, whichever occurs earlier.
- Freight Policy; Title and Risk of Loss: The Buyer shall be solely responsible for the pick-up (at EFLP’s growing facilities or other point of pick-up), delivery and planting services for all of the Products purchased on the B&B website. All prices are quoted FOB EFLP’s growing facilities or other point of pick-up. Title to and risk of loss of the Products supplied hereunder shall pass to the Buyer upon the Buyer’s pick-up of the Products or ten (10) days from the date which EFLP notifies the Buyer that its Products are ready to be picked up, whichever occurs first.
- Damages and Loss: EFLP prepares the Products to protect the Products from being damaged prior to Buyer’s pick-up of the Products. Upon pick-up of the Products by the Buyer, all responsibility for delivering the Products intact and undamaged to the destination rests with the Buyer and not with EFLP.
- Product Availability; Performance: In no event shall EFLP be liable or agree to pay any fixed amount, whether identified as a penalty, additional late charges, or as liquidated damages, for failure to have the Products available to the Buyer, unless a specific agreement to that effect is separately negotiated, made in writing and signed by an authorized representative of EFLP. Any other reference (whether oral or written) made by EFLP regarding Product availability is an estimate only and must not be construed to mean anything more definite.
- Cancellation or Alteration of Order: Buyer’s cancellation or alteration of an order or any Products contained therein will be accepted by EFLP only if such notice is provided in writing from the Buyer to EFLP prior to the earlier of: (i) 48 hours of the placement of the order, or (ii) EFLP’s commencement of efforts in furtherance of processing the order. Notwithstanding the foregoing, the Buyer shall be responsible for all expenses incurred by EFLP (prior to the cancellation or alteration of the order), including but not limited to, costs and expenses for labor (e.g., material handling) as well as selling, general and administrative expenses and profit. Additionally, the Buyer shall be responsible for paying EFLP a cancellation fee for any cancelled orders (based on the total price of the Products cancelled).
- Return of Products: Return of Products to EFLP is not authorized unless approval is issued in a signed writing by an authorized representative of EFLP and a Return Product Authorization number (RPA) is assigned. Unless authority has been granted for a return and an RPA assigned, return shipments will be refused. Credits against the Buyer’s account relating to the Products returned are not permitted unless and until EFLP authorizes such credit in writing to the Buyer. Agreeing to a return and issuing a credit for same does not mean that EFLP accepts the Buyer’s assertion that the Products are faulty. As such, EFLP reserves all of its rights and waives none, to subsequently challenge the return and credit issued to the Buyer. Notwithstanding the foregoing, the Buyer shall be responsible for paying EFLP a restocking fee (based upon the total price of the Products being returned).
- LIMITED WARRANTY: EFLP will offer a three (3) year guaranty on all B&B trees pursuant to which EFLP will refund to the consumer (not the Buyer) the full purchase price of the tree, less any sales tax and planting, delivery or other fees (the “B&B Guaranty”). The B&B Guaranty only applies to specified B&B trees; it does not apply to fruit trees or topiary products. The B&B Guaranty is only available to the consumer (not the Buyer); it shall not be available to or through any third parties such as landscape contractors, builders, etc. The B&B Guaranty is only available through licensed independent garden centers such as the Buyer. The B&B Guaranty will become null and void if the B&B trees are sold by non-licensed retail or wholesale outlets or other non-licensed third parties. Buyer agrees to honor, support and promote the B&B Guaranty as the only guaranty of three (3) years (or more) offered in its garden center. The above limited warranty is the only warranty applicable to the Products and there are no warranties that extend beyond the face of the Digital Partner Agreement and these Terms and Conditions.
- Limitation of Liability: EFLP SHALL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER TO THE BUYER OR BUYER’S CUSTOMER, BY REASON OF ANY BREACH OF THE LIMITED WARRANTY OR OTHERWISE, FOR ANY SPECIAL INCIDENTAL, CONSEQUENTIAL OR INDIRECT LOSS, INJURY OR DAMAGE OF ANY NATURE, SUCH AS, BUT NOT LIMITED TO, LOSS OF INCOME, PROFIT, BUSINESS OPPORTUNITY OR INCREASED USE OF LABOR, CLAIMS OF BUYER’S CUSTOMERS (FOR DAMAGE TO THE PRODUCTS, THEIR PROPERTY OR OTHERWISE), OR INCREASED INSURANCE PREMIUMS, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT), STRICT LIABILITY OR OTHERWISE.
- Force Majeure: EFLP shall not be responsible for damages or for any failure or delay in performance of its obligations hereunder caused by strike, lockout or other disturbances, fire, earthquake, explosion, flood, storm, act of God, accident, terrorist acts, governmental action and/or regulation, curtailment of or failure to obtain raw materials, labor or utilities, machinery or equipment breakdown, lack of transportation or distribution facilities or any other cause whatsoever beyond its reasonable control and which, by the exercise of due diligence, it is unable to overcome.
- Assignment: The Buyer shall not assign any order or any interest therein without the prior written consent of EFLP. Any actual or attempted assignment without EFLP’s prior written consent shall entitle EFLP to cancel such order and shall be grounds for default under the Buyer’s Digital Partner Agreement.
Governing Law; Jurisdiction: All matters between EFLP and the Buyer, including any disputes which may arise, shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without reference to principles of conflicts of law. The Buyer consents to the exclusive jurisdiction of the Courts of Common Pleas of Berks County, Pennsylvania or the Federal Courts of the Eastern District of Pennsylvania.