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Surf and Sierra Wholesale Nurseries, LLC

Terms and Conditions for Sale and Delivery of Merchandise

This Agreement shall serve as the terms and conditions for sale and delivery of merchandise between Surf and Sierra Wholesale Nurseries, LLC., commonly known and referred to herein as "Seller" and customer, as identified by internet or E-mail name or log ID, purchase order or invoice, shall be commonly known and referred to herein as "customer".

1. TERMS: All orders are 100% prepaid upon placement of initial order unless a prior account has been established. Credit is available on jobs in progress or repeat customers:

1. All balances are due and payable 10 days from invoice date;

2. Overdue accounts will be subject to a service charge of 2% per month or 24% per annum;

3. Office administrative costs of $75.00 per hour and all expenses related to servicing client monthly balance;

4. Seller retains the right to deny further credit and delivery on past due balances or accounts, cancellation of sale by customer shall not occur as a result of customers inability to pay for the order; and

5. Date of this Agreement shall be the date the Customer executes this Agreement.

2. SPECIAL ORDERS: Customer acknowledges that the specimen plant material(s) described in this Agreement represents a special order. All special orders must be paid in full at time of initial order unless other terms have been agreed to. Seller will not be responsible for holding tagged plant material for periods greater than 2 days from hold date, unless prior agreement has been made

3. DELIVERY/ SHIPPING: Product prices do not include shipping unless otherwise specifically included in the invoice and as noted. Shipping can be arranged through Seller or you can arrange shipping through a common carrier. In any event in which Customer arranges for its own transportation of nursery stock purchased from Seller, Customer shall be responsible for any all liabilities or claims of damage which occur after the nursery stock leaves Seller premises or loading locations. In any event in which Seller delivers nursery stock to a customer, Seller shall only be obligated to deliver the nursery stock to the curb of the premises at the delivery site, or to the closest point accessible by the truck making the delivery. Customer understands that the very nature of sending large trucks with large plant material into residential neighborhoods may result in complications including but not limited too, such as difficult elevation grades, turns in roads, obstacles in height and local regulations that are beyond the control and responsibility Seller and to which the solution is never included in any portion of the plant price or shipping costs declared by Seller. Customer shall have adequate personnel and equipment at the delivery site for off-loading nursery stock. Orders requiring more than 2 hours to off-load are subject to a $100.00 per hour or standby charge for trucking and transport. Off-loading equipment shall be billed at cost per hour of contracted equipment rate plus 15% when handled by Seller. Seller is not responsible for delay in shipping due to causes beyond our control such as late trucks, truck permit requirements, weather problems, acts of nature, plant inspection delays, treatments required for inspection, road construction.

4. OTHER PROVISIONS: Any failure of Seller to insist upon strict performance by Customer of any terms and conditions of this Agreement shall not be construed as a waiver of Seller right to demand strict compliance. Customer has carefully reviewed this Agreement and waives any principle of law, which would construe any provision hereof against Seller as the draft person of this Agreement. Customer agrees to pay all reasonable costs of collection, court costs, attorney’s fees and other expenses incurred by Seller in the collection of any charges due under this Agreement or in connection with the enforcement of its terms. Customer shall pay all charge(s) without any offsets, deductions or claims. This Agreement shall be governed by the laws of the state in which Seller is located. The federal and state courts in the Ventura County region in which Surf and Sierra Wholesale Nurseries, LLC is located shall have exclusive jurisdiction over all matters relating to the Agreement. Trial by jury is waived. Service of process may be affected by certified mail, return receipt requested, or in such other manner as may be permitted by law. Seller shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.

5. LICENSING: Seller is not a licensed contractor. Surf and Sierra Wholesale Nurseries, LLC is licensed to sell nursery stock with the California Department of Agriculture. All site work and costs are billed hourly.

6. ENTIRE AGREEMENT / ONLY AGREEMENT: This Agreement represents the entire agreement between the customer and Seller with respect to the purchase and delivery of the merchandise. There are no oral or other representations or agreements not included herein. None of Seller rights or customer’s rights may be changed and no extension of the terms of this Agreement may be made except in writing, signed by both Seller and Customer.

7. SEVERABILITY: If one or more clauses or paragraphs in this Agreement are illegal or unenforceable in whole or in part, it or they shall be considered separate and severable from the Agreement and the remaining provision of the

Agreement shall remain in full force and effect and shall be binding on the parties as though the clauses or paragraphs or parts in question had never been included.

8. NON-WARRANTY: Seller accepts no responsibility for the viability of the plant material once it is accepted by the Customer. No guarantee is made, expressed or implied, regarding the future growing performance of any plant material within this contract. Any warranty of plant material shall be made in a separate written contract.

9. INSPECTION AND CLAIMS: Inspection and claims of damage to plants must be must be made in writing with photos at time of unloading at site. If an error in variety, size or quantity, please notify us within 48 hours from pick up/delivery and we will make any necessary adjustments. We do not guarantee the longevity of plants.

10. LIMIT OF LIABILITY: At no time will Seller be responsible for more than the purchase price of the plant material and liability shall be limited to the replacement of plant material or credit towards future purchase of plant material from Seller Replacement costs do not include freight or unloading costs.

11. BATHROOMS: In cases where Seller is to be on site for more than 2 hours and in excess of one work day it is sellers responsibility to provide a porta potty or access to a rest room/ bathroom for sellers staff or sub contractors. In the lack of a on site bathroom, no time deduction shall be made should staff be required to drive to a rest room.

12. BROKERING: Seller does not grow all the plants it sells. Many of these plants carry the brand or grower name on the plant or container grown in. Agricultural inspection reports may also contain the name of the original grower. Customer agrees not to return any branded or otherwise identified plant material to Seller or cancel the balance of any unfilled portions of the order and then repurchase it from another vendor or from the originating grower.

13. AGRICULTURAL INSPECTIONS: Seller will obtain as needed agricultural inspections and documents for shipment of plant material to other Counties in California, our of State and international export. Inspections offer the customer a third party verification standards and quantity of plant material to be purchased. Seller will make available when possible County agricultural inspector at time of the inspection. All out of State and will contacted by Seller with the inspector at the time of inspection.

14. PLANT SPECIFICATIONS: Seller shall ship plant material consistent with standards of the American Association of Nurseryman, the California Association of Nurserymen or as specified on the invoice.

15. RESTOCKING FEE: Seller reserves the right to charge a 30% restock fee for delivery cancellations or returns on specimen plant material. Such restocking fees will not include transportation, loading and unloading expenses of returned plant material. Credit will be contingent upon inspection of returned nursery stock. Plants returned via Seller truck are subject to a $100.00 per hour trucking fee in addition to any restocking charge. Credit will be issued towards any future purchases and is not refundable in cash.

16. RETENTIONS: Seller does not agree to any retention of funds for materials or services provided to customer..

17. FACSIMILE & INTERNET POSTING : Customer and Seller agree that a facsimile of this Agreement or copy of Terms Of Purchase posted to the internet web site, is shall be fully binding on the parties and customer as identified by internet or E-mail name or log ID, purchase order or invoice, shall be commonly known and referred to herein as "customer".

18. TAXES: Unless otherwise indicated on the invoice of sale or with this agreement Customer shall be liable for all federal, state and/or local taxes applicable to the purchase and sale of the merchandise listed on the face of this Agreement.

19. AUTHORITY TO SIGN: Any individual signing this Agreement represents and warrants that they are of legal age, and have the authority and power to sign this and Agreement on their own behalf or, if the Customer is a corporation, for the Customer. Signature shall include but be limited to completion of internet order and identified by internet or E-mail name or log ID, purchase order or invoice, shall be commonly known and referred to herein as "customer".

20. RECEIPT AND INSPECTION OF MERCHANDISE: Customer will inspect the merchandise prior to taking possession thereof and after delivery of the merchandise is completed. Customer’s acceptance of the merchandise is an irrefutable presumption that Customer finds the merchandise in good condition and suitable for Customer’s needs.

21. FORCE MAJEURE: Seller shall not be liable for any delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, payment in full of payments required of customer, fire or other casualty, acts of God, strike or labor dispute, war or other violence, inability to obtain transportation, or any law, order or requirement of any governmental agency or authority.

Last modified: 01/19/08