Updated May 1, 2015 (for prior versions contact VineTech Canada Inc.)

TERMS AND CONDITIONS

The following Terms and Conditions, as referenced in and incorporated by the Grapevine Purchase Order Form (the “Order Form”) of VINETECH CANADA INC. (“VTC”), apply to the contractual relationships between VINETECH CANADA INC. (as “VTC”) and all purchasers of its products (each a “Grower”).

These terms and conditions are in addition to those contained in the Order Form.  In the event that any of these Terms or Conditions modifies, or is determined to be in conflict with any of the Terms and Conditions in the Order Form, the Terms and Conditions contained in the Order Form shall govern and the conflicting Term(s) or Condition(s) contained herein shall be invalid and of no force or effect without affecting the validity of the remaining Terms and Conditions herein or in the Order Form.

Price and Terms of Payment – The price to be paid by the Grower shall be the sum stated on the Order Form, together with the cost of any storage, freight, packaging costs, hot water and other treatment charges and HST.  The terms of payment shall be:

1. A deposit of 25% to 50%, as determined by VTC, shall be payable by the Grower within the time specified in the Order Form;
2. The balance of payment shall be payable prior to the vines leaving VTC;
3. Overdue accounts of any type shall be subject to interest at a rate of 2% per month from the date payment was due.

Deposits – Deposits are non-refundable.

Collection of orders – All times quoted by VTC for the collection of vines from VTC are estimates only and VTC shall not be liable for any failure to supply arising from any cause whatsoever.  VTC is entitled to cancel or vary the collection or delivery date, either in all or in part, if the vines are not available for collection as a result of seasonal conditions or other matters.

Grower shall be responsible for collection of the vines before July 1 of the year of sale unless VTC and the Grower expressly agree otherwise.  Grower shall use reasonable efforts to notify VTC of the desire to collect an order no less than two (2) days before the desired collection date.  Collection of orders shall occur weekdays between the hours of 8:00 am and 4pm (local Niagara-on-the-Lake, Ontario time).  In the event of the Grower failing to collect the order by July 1, VTC, at its option, shall be entitled to do all or any of the following:

1. Retain any monies paid by the Grower;
2. Charge the Grower reasonable storage costs, including HST;
3. Upon expiration of four weeks after giving notice to the Grower that the vines are available for collection and the vines remaining uncollected, VTC shall be entitled to sell the vines and recover from the Grower any losses sustained as a result of the default of the Grower;
4. Claim from the Grower the full amount of the purchase price remaining outstanding.

VTC and the Grower agree it is the Grower’s obligation to inspect the plant material at the time of collection.  The Grower agrees to provide an acknowledgement of inspection at the time of collection.

Packaging and storage – In the event that the grower requests packaging and/or storage of vines, then such packaging and/or storage will be at the Grower’s expense and at the Grower’s own risk. Payment for packaging and/or storage shall be payable prior to the vines leaving VTC.

Freight – In the event that the Grower does not collect the vines in person but wishes to make arrangements for freight, either with VTC or a carrier direct:

1. The cost of such freight will be at the Growers expense;
2. Any carrier engaged shall be deemed to be an agent of the Grower;
3. The Grower remains liable for purchase price and costs;
4. The vines shall be at the risk of the Grower upon the vines leaving VTC;
5. VTC shall not be liable for any failure, neglect or act of the carrier engaged and the Grower is advised to appropriately insure against such risks.

Ownership – The Grower acknowledges the title to the vines will be transferred to the Grower only upon payment in full of all moneys owing by the Grower to the VTC for the vines.  The Grower further acknowledges and confirms that in the event of default in the payment required hereunder, VTC shall be entitled to charge the property on which they were planted or remove them from such property without notice to the Grower or owner of such land.

Breeders’ rights, trademarks and other proprietary rights – The Grower represents and warrants that the plant material is purchased for the sole purpose of growing, harvesting and selling the grape crop obtained from the plant material.  The Grower expressly undertakes not to sell or gift cuttings or to carry out any form of asexual reproduction for themselves or any third party.  The price of certain plant materials purchased by Grower may also reflect the value of breeders’ rights and/or trademarks, including royalties, whether or not specified on the Grapevine Purchase Order.  In exchange for such value, VTC grants to Grower a limited, non-exclusive license to use such plant material for the sole purpose of growing, harvesting and selling the grape crop obtained from the plant material. This license does not include the right to asexually propagate the plant material in any manner, for any purpose.

Voluntary or Government-mandated hot water treatment – Where grapevines are required by law or regulation to be hot water treated, or where a Grower requests that VTC hot water treat grapevines using Canadian Food Inspection Agency certified facilities, Grower hereby acknowledges and agrees that Grower has not relied upon any representation by VTC as to the success or failure of hot water treatment and has made his own judgment of the risks and dangers associated with such treatment.  Accordingly, Grower agrees to hold harmless VTC from all claims, suits or demands arising from any loss or damage sustained by or arising out of hot water treatment of the vines.

Grapevine warranty disclaimer; latent defects  

Domestically propagated vines – VTC seeks to select domestic grapevine propagation material from local sources having regard to custom, origin and harvesting methods on a case-by-case basis.  Customary sources are principally restricted to material previously approved for import to Canada by the Canadian Food Inspection Agency or propagated from such material as set out in the Grower Acknowledgement below with no additional assurance available to industry.  Consequently, all grapevines are sold on a “as is”, “with all faults, known or unknown” and on an “as available” basis.  Except for the limited warranty set forth herein, VTC hereby EXPRESSLY EXCLUDES ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND OBLIGATIONS OF THE SELLER, WHETHER STATUTORY OR OTHERWISE, CONCERNING (A) MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE PLANT MATERIALS, (B) THE DESCRIPTION, QUALITY, MARKETABILITY OF CROP, SURVIVAL RATE, YIELDS, COLD TOLERANCE, FREEDOM FROM VIRUSES, PESTS, DISEASES, INSECTS, PATHOGENS, OTHER LATENT DEFECT OR ANY OTHER MATTER RELATING TO THE GRAPEVINES, AND (C) INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS RELATING TO THE PLANT MATERIALS.  VTC is not responsible for any latent defect including health defects which occur or which become manifest after the sale of the grapevines.  VTC further disclaims liability for any loss or damage, consequential or otherwise, resulting from damaged or defective the grapevines.  Grower expressly waives all right to any special, incidental, indirect or consequential damages, including, but not limited to damages caused by misdescription or failure of the grapevines, regardless of whether such damage occurs or is discovered before or after the replacement or refund contemplated in these Terms and Conditions.

Imported grapevines – All imported grapevines supplied under this agreement are imported pursuant to a Permit to Import issued by the Canadian Food Inspection Agency and, as such, comply with the health and phytosanitary requirements of the Government of Canada’s laws and regulations (“Rules”) governing the health and quality of grapevine material entering Canada.  Compliance with Government of Canada Rules does not mean that the material is free of any and all viruses, pests and diseases; it is only a warranty that the material is sufficiently free of those regulated viruses, pests and diseases for which it was tested under the rules and guidelines established by the Government of Canada at the time of its testing.  Even if the material is in compliance with these rules and regulations, there may be certain viruses, pests and diseases that are not regulated or that the testing methods and protocols do not detect. As a result, all imported plant material must be sold on an “as is”, “with all faults, known or unknown” and on an “as available” basis.   Except for the limited warranty set forth herein, VTC hereby EXPRESSLY EXCLUDES ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND OBLIGATIONS OF THE SELLER, WHETHER STATUTORY OR OTHERWISE, CONCERNING (A) MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE PLANT MATERIALS, (B) THE DESCRIPTION, QUALITY, MARKETABILITY OF CROP, GENETIC STABILITY, SURVIVAL RATE, YIELDS, COLD TOLERANCE, FREEDOM FROM VIRUSES, PESTS, DISEASES, INSECTS, PATHOGENS, OTHER LATENT DEFECT OR ANY OTHER MATTER RELATING TO THE PLANT MATERIALS, (C) INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS RELATING TO THE PLANT MATERIALS.  VTC is not responsible for any latent defect including health defects which occur or which become manifest after the sale of plant material.  VTC further disclaims liability for any loss or damage, consequential or otherwise, resulting from damaged or defective plant material.

Imported grapevines and hot water treatment – VTC can provide no assurances with respect to Government-mandated hot water treatment of imported vines.  As a result, Grower agrees to hold harmless VTC from all claims, suits or demands arising from any loss or damage sustained by or arising out of hot water treatment of the vines.

Limited warranty – VTC warrants that the grapevines are free from visible injurious insects and visible plant diseases at the time of collection by Grower.  VTC further warrants that the grapevines will be alive at the time of collection and grow though September 1 of the year of collection under normal conditions when handled properly after delivery, correct planting procedures are followed, and planted vines are properly cared for in the field.

Grapevine limitation of liability – VTC’s sole obligation and Grower’s exclusive remedy shall be limited to VTC crediting the purchase price of the grapevines that failed to grow or, at VTC’s sole option, replacement of such vines the next season, subject to the limitation below.  Because grapevines are perishable, subject to rapid deterioration if not properly cared for after leaving VTC and, in the case of imported grapevines, are subjected to Government-mandated hot water treatment, the right to a credit or replacement is limited to 2.5% of the vines sold by lot (a lot being a single variety, clone and rootstock combination) on an individual basis, provided that Grower complies with the Claims policy set out below.

Grower acknowledgement – By purchasing grapevines from VTC, Grower acknowledges: that Canada does not maintain a domestic grapevine certification program; commercial growers and VTC must rely on propagation material originating from import grapevines that, at the time import, satisfied the health and phytosanitary standards of the Government of Canada’s laws and regulations (“Rules”) and that has been maintained in accordance with Canadian and Provincial Rules and recommendations for identification, management and control of viruses, pests and diseases; that compliance with import rules and other laws, regulations and recommendations does not mean that the originating material was free of any and all viruses, pests and diseases; compliance with import rules and other laws was only a warranty that the material was sufficiently free of those regulated viruses, pests and diseases for which it was tested under the Governmental rules and guidelines established by the relevant regulatory authorities involved at the time of its testing; that even if the material was in compliance with all import rules and regulations, there may be certain viruses, pests and diseases that were not regulated or that the then-existing testing methods and protocols did not detect; that even if the material has been cared for in accordance with Government Rules and recommendations, there is no assurance that such Rules or recommendations were effective to identify or control regulated or non-regulated viruses, pests and diseases that were otherwise present in imported material; that vines originating from such plant material therefore cannot be warranted to be free of viruses, pests and diseases, and; that VTC is not responsible for any latent defect in plant materials sold, including, but not limited to, health defects which occur or which become manifest after the sale of plant material and that the sale price reflects, in part, the transfer of the risk of potential loss and/or damages from latent defects from VTC to the Grower.

Claims – Grower must notify VTC in writing within 2 business days after receipt of the grapevines of any shortage in grapevines.  Grower must notify VTC in writing by no later than September 15 of the season in which the vines were planted the number of vines that failed to grow by variety and clone, selection or lot basis, as the case may be.

No technical opinions – The Grower acknowledges and accepts that VTC does not provide any technical opinions and that the Grower is responsible for obtaining independent expert horticultural and viticultural advice regarding the purchase, planting and care of the plant materials.   No part of the purchase price for grapevines shall be considered to be consideration for horticultural or viticultural advice.

Governing law – These terms shall be interpreted according to laws of the Province of Ontario.

Force majeure – Any failure or delay in the performance by VTC of its obligations hereunder shall not be a breach of this agreement if such failure or delay arises out of or results from any cause beyond VTC’s reasonable control, including any fire, frost, drought, crop conditions, casualty, explosion, error in count, strike or other difference with workmen, shortage of utility, facility, material or labour, delay in transportation, breakdown or accident, compliance with or other actions taken to carry out the intent and purpose of any law or regulation.

Severability – If any of the terms or conditions of this agreement are deemed illegal, void or unenforceable for any reason, then that term or condition shall be severed from the agreement. All of the remaining terms and conditions shall remain in full force and effect.