Availability.  Seller's obligation to deliver nursery stock in the stated quantities is subject to the express condition of availability of such stock at the time of harvest from Seller's fields and/or greenhouses.  Seller's acceptance of Buyer's order in the stated quantities is based upon estimated yields from Seller's fields and/or greenhouses, and Seller will attempt in good faith to grow stock in quantities as close as possible to the estimated yields.  However, if the yields are below the estimated quantities for any reason, Seller's obligation to deliver will be limited to the quantities actually harvested from Seller's fields and/or greenhouses, and Buyer will accept the quantities actually harvested and/or produced and pay Seller the above-specified price per unit delivered.  This shall apply to each variety, selection or lot on an individual basis and availability or unavailability of certain varieties, selections or lots shall not relieve Buyer from any of its obligations hereunder.

Warranty -- Limitation of Liability.  Seller will exercise care to have and deliver merchandise true to the order stated above.  However, Seller expressly disclaims any warranties or guarantees as to the description, quality, purity, genetic stability, productiveness, freedom from disease, pathogen or virus, or as to any matter of merchantability and fitness for any purpose, and all other warranties, express or implied, relative to the above merchandise.  It is expressly agreed and understood that Seller’s liability under this Agreement shall in no event exceed the purchase price paid for the merchandise described above and that Seller's sole obligation and Buyer's exclusive remedy shall be limited to Seller's replacing said merchandise or, at Seller's option, refunding the purchase price paid for such merchandise.  Buyer acknowledges and agrees that by this Agreement, Buyer waives all rights to any incidental or consequential damage caused by misdescription, inadequacy or failure of the merchandise, whether such damage occurs or is discovered before or after replacement or refund.  

SELLER HEREBY EXCLUDES ALL WARRANTIES AS TO THE DESCRIPTION, QUALITY, PURITY, GENETIC STABILITY, PRODUCTIVENESS, FREEDOM FROM DISEASE, PATHOGEN OR VIRUS, OR AS TO ANY MATTER OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.  

Claims.  Buyer may reject or revoke its acceptance of the stock delivered only if the nonconformity in such stock is substantial.  No nonconformity or defect in any lot, installment or unit shall constitute grounds for claiming breach of the whole Agreement and any lots, installments or units not in dispute shall be paid for separately regardless of dispute as to other deliveries or undelivered stock.  Because the stock is perishable and subject to rapid deterioration if not properly cared for, Buyer must notify Seller in writing or by telecopy within 3 days after receipt of the stock, which period of time is expressly agreed to be reasonable of any claimed defect.  If Buyer does not give Seller such notice and return such claimed defective stock to Seller within 3 days after giving effective notice, Buyer shall be deemed to have irrevocably accepted the stock and shall be barred from any remedy therefore.  

Delivery-- Risk of Loss.  The parties estimate that the stock will be ready for delivery on or before the Delivery Date.  The Delivery Date is an approximation only, and Seller shall incur no liability for failure to deliver on or before such date.  Buyer shall inform Seller of the actual desired Delivery Date at least 10 days prior to such date.  Seller reserves the right to tender delivery of the stock in installments or separate lots.  Unless otherwise specified herein, the Total Contract Price is F.O.B. Seller's nursery site or storage facility.  

Collection of Taxes and Other Fees.  California Sales Tax is added to the Total Contact Price (where applicable) on all California orders (unless a valid resale certificate is presented) and on out of state orders picked up at Seller's nursery site or storage facility.  The California Fruit, Nut and Grapevine Assessment will be added to all orders.  Seller collects for the University of California Foundation Plant Material Service user fees for each propagative unit, for the California Grape Rootstock Improvement Commission an assessment on each invoicable unit and for the University of California additional royalties on certain patented varieties.  Other taxes, fees, assessments or royalties may also be required to be collected by Seller.  The parties understand that rates and charges of such taxes, fees, assessments or royalties may be subject to periodic adjustment by the proper authorities and that the rates and charges in effect on the Delivery Date shall be paid by Buyer and collected by Seller.  

Payments.  Any payments made by Buyer before the scheduled calendar year of delivery are refundable upon written request by Buyer made on or prior to the first business day of such calendar year.  Notwithstanding the foregoing, Buyer remains obligated to purchase the nursery stock and make full payment of the Total Contract Price in accordance with the terms of this Agreement.  

Force Majeure.  All matters herein notwithstanding, any failure or delay in the performance by Seller hereto of its obligations hereunder shall not be a breach of this Agreement if such failure or delay arises out of or results from fire, frost, drought, explosion, strike or other difference with workmen, shortage of utility, facility, material or labor, delay in transportation, breakdown or accident, compliance with or other actions taken to carry out the intent and purpose of any law, regulation or any other cause beyond Seller's reasonable control.  

Arbitration of Disputes.  The parties will attempt to settle any dispute in a mutually agreeable manner.  Any controversy or claim arising out of or relating to this Agreement or the breach thereof, that is not settled by the parties, shall be determined by arbitration in Kern County, California, before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, Buyer and Seller agree as follows with respect to any arbitration initiated hereunder: (a) there shall be no discovery prior to the arbitration proceeding; (b) oral presentations to the arbitrator shall be limited to a total of two hours for Buyer and two hours for Seller; (c) any briefs or legal memoranda submitted to the arbitrator shall not exceed twenty-five (25) pages in length; and (d) the arbitrator shall enter its decision within 7 days after completion of oral presentations to it.  

Applicable Law.  This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California .  

Notices.  Any notice to be given hereunder shall be deemed to be properly given if personally delivered, telecopied with confirmation of delivery, or mailed, postage prepaid, return receipt requested to the addresses or telecopy number specified above or at such other address or telecopy number as may be specified in writing from time to time.  

Attorneys' Fees.  In the event that an action is commenced by either party to enforce the provisions of this Agreement, the prevailing party in such action shall be entitled to award of reasonable attorneys' fees in addition to costs and necessary disbursements.  

Entire Agreement.  This Agreement constitutes the entire agreement and understanding between the parties hereto, is intended as a complete and exclusive statement of the terms of their agreement, and supersedes any prior agreements or understandings between the parties relating to its subject matter.  This Agreement may not be amended or supplemented without further written agreement signed by authorized representatives of both parties.

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