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Please read the following important terms and conditions before placing an order for Goods with Cultivar Greenhouses, Inc.
This “Contract” sets out:
Who are we?
We are Cultivar Greenhouse, Inc., a Massachusetts corporation.
1 Introduction
1.1 If you buy Goods from us you agree to be legally bound by this Contract. The order you place with us constitutes an offer to purchase Goods in accordance with this Contract.
1.2 For clarity, these terms and conditions apply to sales made to consumers.
1.3 This Contract is available only in the English language; which is the language that shall be controlling this Contract in all respects. Any translation into other languages shall be for guidance purposes only and shall be of no force or effect in the interpretation of the Contract or in a determination of the intent of either party.
1.4 We may, from time to time, update these terms and conditions. However, the version made available to you when you place your order will govern the Contract between you and us (see clause 2 below).
1.5 We will use the personal information that you provide to us only in accordance with our Privacy Policy (available at the following link: https://www.cultivar.com/about-us/privacy-policy).
2 Ordering Goods from us
2.1 A legally binding Contract is created between yourself and Cultivar Greenhouses, Inc. and is set out as follows in this clause 2.
2.2 When placing an order with us (this involves agreeing your quote and providing us with the 50% required deposit that confirms an order), please read and check your quote/order carefully before submitting it to us. You are responsible for ensuring that the following (but not limited to) the terms, order details, measurements, accessories of the order are correct. For clarity, we shall not begin production of any order until we receive your signed and submitted acceptance of our GA drawings along with your initial deposit of 50% of the total order value (which includes but is not limited to) the measurements of the structure and any other key elements that have been specified by you
2.3 If required, we will visit you to undertake and complete measurements relating to your order (a “Site Survey”). For clarity, we are not surveyors in the context of a Site Survey and not QS qualified. We shall only complete measurements for the purpose of erecting the greenhouse or glasshouse (the “Goods”) that are being purchased. The responsibility of the integrity of the land lies wholly with you.
2.4 Upon placing your order, we will acknowledge it by email or in writing (the “Quote”). For clarity, a Quote does not mean that your order has been accepted.
2.5 We may contact you to say that we do not accept your order. This is typically for the following reasons:
2.5.1 the Goods are unavailable;
2.5.2 we cannot authorise your payment;
2.5.3 we cannot deliver the Goods to the location you have requested (see clause 5.1);
2.5.4 you are not allowed to buy the Goods from us;
2.5.5 we are not allowed to sell the Goods to you;
2.5.6 you have ordered too many Goods; or
2.5.7 there has been a mistake on the pricing or description of the Goods.
2.6 We will only accept your order when we have received 50% of the total price of the order. We shall then email or write to you to confirm this (the “Confirmation of Order Email”) and at this point a legally binding agreement will be in place between you and us.
2.7 If you are under the age of 18 you are not permitted to buy Goods from us.
2.8 If you cancel an order prior to production of the Goods detailed in your Confirmation Email, we shall retain the 50% of the deposit value you have paid us as detailed in clause 2.6. If we have commenced production, we reserve the right to retain the entire deposit paid.
3 Prices and payment
3.1 Unless otherwise stated on the order, all prices are exclusive of sales tax (as applicable) and delivery and installation charges.
3.2 Prices for our product may change from time to time but such changes will not affect such orders which we have confirmed by way of sending a Confirmation of Order Email by email or mail pursuant to clause 2.6
3.3 We accept payment from most major credit cards, debit cards, by cheque and bank transfers. We do not accept cash.
3.4 We will act reasonably to endeavour that all of the information you give us when paying for the Goods is secure by using an encrypted secure payment mechanism. However, in the absence of bad faith or gross negligence on our part we will not be legally responsible to you for any loss that you may suffer if a third party gains unauthorised access to any information that you give us.
3.5 Your credit card or debit card or account will be charged when the Goods are ordered. If payment is not provided in full, your Goods will not be dispatched, and you will be informed.
3.6 All payments by credit card or debit card or payment service provider need to be authorised by the relevant card issuer or payment service provider.
3.7 Unless otherwise stated on the order, the price of the Goods:
3.7.1 is in US Dollars;
3.7.2 excludes sales tax; and
3.7.3 excludes delivery and installation.
3.10 In accordance with the project proposal, we will require payment of the remaining 50% of the total order value or remaining balance of the order or whichever is applicable at the time at least 48 hours before the agreed date of delivery.
4 Your right to cancel this Contract, cooling off periods and distance selling regulations
4.1 As a consumer you will have certain statutory rights. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (referred to here as the “distance selling regulations”) do not apply to all distance selling contracts as there are a number of exemptions to the distance selling regulations one of which is, of personalised Goods or Goods made to a customer’s specifications. This applies to the Goods that you will buy from us.
5 Receipt, Delivery and Title
5.1 The estimated date and time window for delivery of the Goods is set out in the Confirmation of Order Email (see clause 2.6).
5.2 A typical lead time from your receiving a Confirmation of Order Email is approximately 14 weeks. Often our customers will need a longer time period, which is no problem for us. If longer than the typical 14 weeks, we will require, typically, 6-8 weeks’ notice of your delivery requirement to enable us to schedule the production of your order. However, if something happens which:
5.2.1 is outside of our control; and
5.2.2 affects the estimated date of delivery;
we will let you have a revised estimated date for delivery of the Goods. We accept no liability from you or any third party in the event we are required to propose a new lead time.
5.3 Delivery of the Goods will take place when we deliver them to the address that you have stated as the location Goods are to be delivered to.
5.4 Unless we all agree otherwise, if we cannot deliver your Goods within 30 days of the estimated date of delivery, we will, at our election:
5.4.1 let you know;
5.4.2 cancel your order; and
5.4.3 give you a refund.
5.5 We try to ensure that orders are delivered in the specified window and are confirmed to our customers on the Confirmation of Order Email.
5.6 Delivery charges are always included on order confirmations.
5.7 Additional customer carriage charges can apply for deliveries to more remote locations, for timed deliveries with different costs for Pre-Noon, Pre 10.30am and in some cases Pre 9.30AM deliveries. Tail lift offload, fork-lift and on-road load handling equipment will incur separate delivery charges and also requests for non-standard vehicles for deliveries will have separate charges (e.g. 6-wheeler vehicles, vans etc.).
5.8 If no one is available at your address to take delivery of the Goods, we will contact you via the contact details you have submitted informing you of how to rearrange delivery. Failed deliveries without prior notice may incur additional delivery charges at our discretion.
5.9 You are responsible for the Goods when delivery has taken place. The risk in the Goods passes to you when delivery of the Goods is made to you.
5.10 We reserve the right to deliver your Goods in instalments. If your Goods are delivered in this way, we will contact you prior to delivery to advise and discuss arrangements in connection with this.
5.11 Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. We will make every effort to deliver Goods ordered on the agreed date but we shall not be liable for any delay in delivery of Goods that is caused by an event outside our control or your failure to provide us with adequate delivery instructions and a suitable location for delivery or any other instructions that are relevant to the supply of the Goods.
5.12 Delivery will be completed when we deliver the Goods to the address you provided.
5.13 If you have requested that your Goods need not be signed for, you must provide written instructions as to where to leave them. We accept no responsibility for any Goods after leaving them as instructed.
5.14 If collecting Goods from our premises risk of damage or loss of the Goods shall pass to you at the time of collection. Final payment must be received in accordance with the signed project proposal. Notwithstanding collection, delivery and passing of the risk of loss, Goods will remain our property until we receive payment in full (cleared funds) for the Goods and any other services that we have supplied to you in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
5.15 Title passes to you and you own the Goods once we have received payment in full, including all applicable delivery and installation charges.
6.1 Further to clause 2.6, upon receiving your deposit of 50% of the product price, we will produce for you our general arrangement drawings (the “GA Drawings”) for the Goods you are purchasing from us which includes details and instructions you will need for your contractor to build you your base, foundations and dwarf wall.
6.2 Unless expressly stated to the contrary, all installation or erection of your Goods need to be on a level base that is appropriately prepared by yourselves (the “Site”) and aligned to the supplied GA Drawings provided to you. We will require the Site to be (but not limited to):
6.2.1 free of obstruction;
6.2.2 free of any overhanging trees or electrical or other wires;
6.2.3 free of any overhanging roof lines;
6.2.4 have ample working space of a minimum 2-meter clearance.
6.3 We cannot take down or provide services, dis-assemble, move or remove any existing buildings, foundation, structures or objects that are on the prepared base or within the surrounding area.
6.4 We cannot dispose of or remove any existing buildings, structures or objects that may or do impede the installation on the Site. Please contact us prior to installation if you have any concerns. We do not provide services for (but not limited to) dwarf wall requirements, lead dressing, flooring, decorating, plumbing, heating or power supplies (the “Requirements”). We will not accept any liability to yourselves or any third party due to delays in installation as a result of these or for any losses that you incur in preparation for this clause 6.4.
6.5 If installation of the Goods are to be undertaken by us, we will require your confirmation that the Requirements are all in order as per the GA Drawings provided. We will assume this is the case unless you contact us at least 1 week prior to the agreed date of installation. Until we are fully satisfied the base has been installed to the specification provided in the GA Drawings, we shall not be able to complete installation. We accept no liability to your or any third party due to delays in installation pursuant to this clause 6.5. Our typical delivery to installation cycle is 1-3 weeks. We will agree an installation date with you once we have a confirmed delivery date and this will typically be within 1-3 weeks of your delivery.
6.6 If we have to abort the agreed installation with less than 1 weeks’ notice from you, we reserve the right to charge a minimum $1,500 fee.
6.7 We will not be responsible to you or any third party for the use or installation of any products by you (or on your behalf). You agree to hold us harmless and indemnify us against any liability and damage, including without limitation reasonable attorney’s fees, associated with any claim or allegation that we are responsible for any failings in the installation or use of any products that we supply.
7 Nature of the Goods
7.1 Except for the Goods described in 7.2, the Goods supplied to you shall reasonably be:
7.1.1 of satisfactory quality;
7.1.2 fit for purpose; and
7.1.3 match the description given to you prior to you placing your order.
7.2 Any Goods sold:
7.2.1 at discount prices; or
7.2.3 that are ex-display models
will be identified and sold as such in AS_IS condition. Please check that they are of a satisfactory quality for their intended use.
7.3 If we cannot supply certain Goods, we may substitute them with alternative Goods of an equal or sometimes better standard and value. In such cases:
7.3.1 we will let you know if we intend to do so; and
7.3.2 you can refuse to accept such substitutes, in which case we will offer you a refund or a replacement and let you know how long such an offer remains open for.
8 Faulty Goods
8.1 See attached warranty
8.2 You may also have other rights in law. For clarity, the Contract shall govern the purchase of Goods from us.
8.3 If you find that your Goods are faulty please contact us using the contact details at the top of this page and share details of the fault.
8.4 THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. OTHER THAN AS PERMITTED BY LAW, CULTIVAR GREENHOUSES, INC. DOES NOT EXCLUDE, LIMIT OR SUSPEND OTHER RIGHTS YOU MAY HAVE, INCLUDING THOSE THAT MAY ARISE FROM THE NONCONFORMITY OF A SALES CONTRACT. FOR A FULL UNDERSTANDING OF YOUR RIGHTS YOU SHOULD CONSULT THE LAWS OF YOUR STATE.
8.5 TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. CULTIVAR GREENHOUSES INC DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, CULTIVAR GREENHOUSES, INC LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT CULTIVAR GREENHOUSES, INC’S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED ON THE WARRANTY ATTACHMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
9 Our rights to terminate the Contract
9.1 We may end the Contract for Goods at any time by writing to you if:
9.1.1 you do not make any payment to us when it is due and you still do not make payment within 7 days of us reminding you that payment is due;
9.1.2 we are out of stock of the Goods that you have ordered, in which case we will inform you in writing and refund you in full; or
9.1.3 you do not, within a reasonable time, allow us to deliver the Goods to you.
10 Termination of the Contract
10.1 If this Contract is terminated, we shall not forego or extinguish our right to receive any money due to us under the terms of this Contract, which we reserve the right to collect as a debt. You agree to pay all costs of collection, including reasonable attorney’s fees.
11 Limit on our responsibility to you
11.1 Except for any legal responsibility that we cannot exclude in law (such as for death or personal injury), we are not legally responsible for:
11.1.1 losses that:
11.1.1.1 were not foreseeable to you and us when the Contract was formed; or
11.1.1.2 that were not caused by any breach on our part;
11.1.2 business losses; and
11.1.3 losses to non-consumers.
(For the purpose of clause 11.1.1.1), loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was made, both you and ourselves knew it might happen, for example (but not limited to), if you discussed it with us during the sales process.
12 Disputes and legal proceedings
12.1 We will try to resolve any disputes with you quickly and efficiently.
12.2 If you are unhappy with the Goods or our service to you, please contact us (using the contact details at the top of these terms and conditions) as soon as possible and we will try to resolve the problem.
12.3 If we are unable to resolve the problem and you wish to bring legal proceedings, the Contract is governed by the laws of the Commonwealth of Massachusetts and the federal and state courts located in Massachusetts.
13 Security and data protection
13.1 Each party shall for the duration of this Contract comply with the provisions of the Data Protection Act 2018, the General Data Protection Regulation and any similar or analogous laws, regulatory requirements or codes of practice (the “Data Protection Legislation”) governing the use, storage or transmission of your Protected Personal Data (for clarity, this is Personal Data provided by you pursuant to the performance of this Contract by the parties) and shall not do or permit anything to be done which might cause or otherwise result in breach of the same. For clarity this clause 13 is in addition to, and does not relieve, remove or replace, either party’s obligations under the Data Protection Legislation.
13.2 Cultivar Greenhouses, Inc. acknowledges that for the purposes of the Data Protection Legislation, it is the Data Processor and you are the Data Controller of any of your Protected Personal Data provided to it by you or obtained by it as part of its obligations under this Contract. For clarity Data Controller, Data Processor, and Personal Data have the meanings as defined in the Data Protection Legislation. In its capacity as Data Processor, Cultivar Limited undertakes to use reasonable endeavours to keep your Protected Personal Data secure to ensure that you are not in breach of your obligations under the current or any future Data Protection Legislation.
13.3 Without limitation to clauses 13.1 and 13.2, Cultivar Greenhouses, Inc. agrees to:
13.3.1 ensure a level of security appropriate to the nature of your Protected Personal Data to be protected;
13.3.2 take appropriate steps so that Cultivar Greenhouses, Inc.’s employees and subcontractors who have access to your Protected Personal Data comply with this clause 13;
13.3.3 comply with your reasonable instructions pursuant to the Data Protection Legislation in relation to the collection, processing and disposal of any of your Protected Personal Data.
13.4 Without limitation to clauses 13.1 and 13.2, Cultivar Greenhouses, Inc. shall, in relation to any of your Protected Personal Data processed in connection with the performance by Cultivar Greenhouses, Inc. of its obligations under this Contract:
13.4.1 process your Protected Personal Data only on the written instructions from yourself which is to be provided within reasonable notice unless Cultivar Greenhouses, Inc. is required by applicable law to process your Protected Personal Data (the “Applicable Laws”);
13.4.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of your Protected Personal Data and against accidental loss or destruction of, or damage to your Protected Personal Data, having regard to the state of technological development and the cost of implementing any measures (those measures may include measures appropriate under the Data Protection Legislation);
13.4.3 ensure that all personnel who have access to and/or process your Protected Personal Data are obliged to keep your Protected Personal Data confidential;
13.4.4 not transfer any of your Protected Personal Data in violation of applicable laws:
13.4.4.1 you have provided appropriate safeguards in relation to the transfer;
13.4.4.2 the Data Subject has enforceable rights and effective legal remedies;
13.4.4.3 Cultivar Greenhouses, Inc. provides an adequate level of protection to any of your Protected Personal Data that is transferred; and
13.4.4.4 Cultivar Greenhouses, Inc. complies with reasonable instructions notified to it in advance by you with respect to the processing of your Protected Personal Data;
13.4.5 assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with each party’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
13.4.6 notify you without undue delay on becoming aware of a breach of your Protected Personal Data;
13.4.7 at written direction from yourself, delete or return your Protected Personal Data and copies thereof to you on termination or expiry of the Contract unless required by Applicable Law to store your Protected Personal Data; and
13.5 You consent to Cultivar Greenhouses, Inc. appointing third-party processors of your Protected Personal Data under this Contract. As between yourself and Cultivar Limited, you authorise third party contractors to process any of your Protected Personal Data (as defined in the Data Protection Legislation) provided that the third-party contractor’s agreement with Cultivar Greenhouses, Inc. is:
13.5.1 on terms similar to these set out in clause 13 of this Contract; and
13.5.2 terminated automatically on termination of this Contract.
13.6 Both parties shall maintain complete and accurate records and information to demonstrate its compliance with this clause 13. Each party agrees to provide evidence to each other in the event that the other party may reasonably request and upon being given sufficient notice, to demonstrate a party’s compliance with the current Data Protection Legislation.
14 General
14.1 If a court or law or relevant authority decides that any sections of this Contract are unlawful or unenforceable, the remaining clauses in the Contract shall remain in full force and effect at all times.
14.2 Even if we delay in enforcing the Contract, we reserve the right to enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this Contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you, but we continue to provide the Goods, we still require you to make the payment at a later date
14.3 No one other than a party to this Contract has any right to enforce any term of this Contract.
14.4 We may transfer our rights and obligations under the Contract to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the Contract.
14.5 You may only transfer your rights or your obligations under the Contract to another person if we agree to this in advance of such transfer and in writing.
Cultivar Ts & Cs Feb 2023