Limitation of Warranty and Liability and Use Restriction
READ THIS BEFORE ORDERING OR USING
The company HM.CLAUSE, INC. (“HM.CLAUSE”) warrants that a representative sample of the seed and associated products in this container (collectively the “Seed”) was tested and labeled at the time of initial packaging (or thereafter as indicated) by HM.CLAUSE, and, at the time of such testing, conformed to the label or tab description within recognized tolerances.
Disclaimer of Warranties
HM.CLAUSE makes NO other warranty of any kind. THIS EXPRESS WARRANTY EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION HEREON. HM.CLAUSE makes NO warranty this Seed is free of seed-borne diseases or free of genetically modified organisms. As permitted by law, Seed is sold “As Is”.
Acceptance of Terms
Any person who buys, receives, opens the package or uses this Seed (collectively the “User”) thereby accepts and agrees to this Limitation of Warranty and Liability and Use Restriction (“Agreement”) between User and HM.CLAUSE. If User did not purchase this Seed directly from HM.CLAUSE, User agrees that HM.CLAUSE is a third-party beneficiary and is entitled to enforce this Agreement as if it had been entered into between User and HM.CLAUSE. User agrees to accept full responsibility for the performance of the Seed and crop. IF USER DOES NOT ACCEPT THESE TERMS, USER MUST RETURN THIS SEED IN THE UNOPENED CONTAINERS TO THE PLACE OF PURCHASE FOR A FULL REFUND WITHIN 30 DAYS OF RECEIPT.
Notice, Waiver and Indemnification Regarding Untreated Seed
HM.CLAUSE’s standard practice is to routinely apply fungicide and/or insecticide treatment(s) to most species in order to reduce the risk of loss of plant stand or failure to establish a plant stand due to micro-organisms and insect attack during germination and plant establishment. While HM.CLAUSE will provide customers with untreated seed at their request, HM.CLAUSE does not accept liability for failure of such untreated seed to establish a stand. User acknowledges the risks associated with untreated seed, especially when such seed is planted directly into field soil. User knowingly and voluntarily releases and waives any and all claims related to untreated seed against HM.CLAUSE except for any express written warranty involving seed germination, subject to HM.CLAUSE’s standard evaluation process.
User will communicate the information of the risks of use of untreated seed prior to sale or transfer of the seed and will execute the same or similar agreement with the third party. USER WILL INDEMNIFY, DEFEND AND HOLD HM.CLAUSE HARMLESS FROM ANY AND ALL CLAIMS BY THIRD PARTIES ARISING FROM THE PERFORMANCE OF THE UNTREATED SEED.
Exclusive Remedy. User’s Exclusive Remedy and HM.CLAUSE’s sole liability for any loss resulting from the ordering or use of the Seed is limited to a refund of the price paid for the Seed and will not include incidental, consequential, or exemplary damages, such as loss of yield or lost profits. User agrees that HM.CLAUSE’s refund of the price paid for the Seed will not cause this Agreement to fail of its essential purpose.
Immediate Notice. User must give HM.CLAUSE immediate notice (no later than 7 days) when User believes a Breach of Warranty exists, and User shall fully cooperate with HM.CLAUSE’s investigation.
Product Data Limitations: Product data and ratings are based on averages of results from various test locations. They are a summary of past results and not a prediction of future performance. Performance will vary depending on the actual environment, pathogen strain and management conditions in your field. Any technical advice is provided for your consideration only.
Third Party Handling: HM.CLAUSE takes no responsibility and makes no warranty for Third-Party Handling of HM.CLAUSE seed. Additional treatments to HM.CLAUSE seed could damage the germination, vigor and/or expose the seed to seed borne and/or seed transmitted diseases, all of which may result in loss of stand, reduced yield or crop failure. Application of further seed enhancements, coatings, or treatments by anyone other than HM.CLAUSE will immediately void all HM.CLAUSE warranties and remedies.
Notice of Required Arbitration/Conciliation/Mediation Required By Various States in the United States: Under seed laws of many states, arbitration, conciliation or mediation is required as a prerequisite to maintaining a legal action based upon the failure of seed to which this notice is attached to produce as represented. The User must file a complaint (sworn for AL, AR, CO, FL, IL, IN, MN, MS, NC, SC, TX, WA; signed only CA, GA, ID, ND, SD) along with the required filing fee (where applicable) with the Commissioner/Director/Secretary of Agriculture, Seed Commissioner, or Chief Agricultural Officer of the State within such time as to permit inspection of the crops, plants, or trees by the designated agency and the seedsman from whom the seed was purchased. A copy of the complaint must be sent to HM.CLAUSE by certified or registered mail or as otherwise provided by statute.
Jurisdiction and Venue: This Agreement is governed by and shall be construed in accordance with the laws of the State of California. User agrees that all disputes arising out of or in connection with this Agreement must be resolved by a Court of competent jurisdiction in the County of Yolo, State of California, United States of America. User irrevocably submits to the exclusive jurisdiction of such Court for the purpose of litigating any and all such claims or disputes.
Severability: If any term of this Agreement is held to be unenforceable, all remaining terms will remain in effect and be fully enforceable.
This Seed is owned by or licensed to HM.CLAUSE, and HM.CLAUSE, strictly limits the sale and possession of this Seed to a grant to User of a non-exclusive right to use this Seed for the sole purpose of growing a single crop of plant parts for sale or use as a vegetable product. User shall not export, reproduce, multiply or breed the Seed, and shall not genetically analyze or manipulate in any way the Seed, or any plants or plant parts produced from the Seed. User shall include this Agreement with any transfer of this Seed.
This Agreement is the Entire Agreement between HM.CLAUSE and User regarding Warranties, Liabilities and Limitations on Warranties and Liabilities. User has not relied upon any warranty, representation or use restriction except as specifically provided in this Agreement.