With PHLASH, placing orders for your raw materials or fine food ingredients has never been easier or more efficient. PHLASH is also a resource for your order management needs.
These General Terms and Conditions (at times “Terms and Conditions”) are made a part of all orders placed with Palmer Holland, Inc. and/or any of its subsidiaries including but not limited to Palmer Holland Canada Distribution Corp. and Focus Chemical, Inc. (hereinafter collectively referred to as “Seller”) and are exclusive and in lieu of all other terms and conditions appearing on Buyer’s purchase order or elsewhere and apply to all quotations made and orders placed by Buyer, unless specifically stated to the contrary on the face of this Contract or invoice. Any terms, whether in a purchase order or other Buyer’s documents, irrespective of their materiality, which are either different or additional to Seller’s conditions of sale as stated herein are objected to and excluded unless expressly agreed to in Seller’s acknowledgement. Placing an order with Seller constitutes Buyer’s acceptance of Seller’s conditions of Sale. The parties hereto expressly agree that Ohio Revised Code Section 1302.10(UCC Section 2-207) or any similar statute and/or law of any other state or governing authority shall not apply to these Terms and Conditions. This constitutes the entire contract and agreement between the parties and shall not be modified except by a writing signed by both parties.
Unless otherwise approved in writing by Seller, delivery of products shall be FCA Origin. Risk of loss or damage to, and responsibility for, products shall pass to Buyer upon transfer to buyer-approved carrier at shipping point. Seller provides freight information for informational purposes only and does not warrant the accuracy of that information. Buyer will be responsible for any fees, charges or penalties imposed by Buyer-arranged freight carriers.
All Orders placed by Buyer shall be binding upon Buyer when Seller issues an Order Confirmation to Buyer. Requests to cancel a confirmed Order must be approved by Seller at Seller’s sole discretion. Orders cancelled in this manner may be subject to an Order Cancellation Fee at Seller’s discretion.
Neither Buyer nor Seller shall be liable for any delay in performance or non-performance (except for payment obligations for delivered products), which is due to causes beyond their reasonable control or which, would render performance commercially impracticable. This includes, without limitation, acts of God, acts of third parties, acts of the government, acts of any agency or commission of the government, fires, breakdown of equipment, differences with employees, unusually severe weather, and inability to obtain raw materials, labor, equipment or transportation. In the event of any such excused performance, either party may eliminate from the Contract or cancel any order for any quantity of product so affected. The party claiming excused performance shall promptly notify the other party of the occurrence and the cause of the excused performance. Notwithstanding the above, this clause does not apply to any payment obligation outstanding for products shipped to Buyer by Seller prior to when notice is provided to Seller of the cause of the excused performance or shipped after such time at Buyer’s written request.
Notwithstanding anything in this Contract to the contrary, if this Contract covers products which are held, manufactured, repackaged and/or toll produced specially for Buyer and the Contract is terminated or an order thereunder cancelled, Buyer will take delivery of and make payment for such product in inventory, in transit to Seller from the manufacturer, or as has been or is in the process of being repacked/manufactured/toll produced on the date notice of such cancellation is received by Seller.
All sales shall be under Cash in Advance payment terms unless otherwise negotiated and agreed to in writing. No discounts and/or rebates will be issued for early payment. Seller, upon notice to Buyer, may put any orders placed by Buyer on hold whenever Seller for any reason doubts Buyer’s ability to make payments as agreed under the Contract. Orders will be released upon settlement of outstanding invoices and/or additional assurance to Seller of Buyer’s ability to comply with payment terms. Such assurance will be deemed satisfactory at the sole discretion of Seller.
Seller is not a manufacturer. Seller does not calibrate or test products, confirm particular specifications or conformance, control the sources used, or dictate the tooling and/or manufacturing process. Seller does not guarantee any specific time frame for notice of product changes, and such changes will be notified to Buyer by Seller within a reasonable time from when Seller is notified by the manufacturer of the Products. Any requested alterations to products as manufactured, including re-labeling of products, may be subject to an additional fee. Because products are not manufactured at Seller’s place of business, all inspections of Seller’s facilities require Seller’s prior approval. Any recommendations or technical advice provided by Seller is believed reliable, but Seller makes no warranty of results to be obtained and Buyer accepts such recommendations or advice at Buyer’s risk. Seller makes no other express or implied warranty, statutory or otherwise, concerning the materials including without limitation a warranty of fitness for a particular purpose or a warranty of merchantability and specifically disclaims all other warranties express, implied, or statutory including without limitation any warranties provided in the UCC as adopted by the state of Ohio.
The misuse, neglect or improper use and/or application of products purchased from Seller constitutes a hazard which can result in loss of life, serious personal injury, property and/or business damage. Buyer shall take and require others to take all reasonable measures to avoid such hazards. Buyer acknowledges the risks of misuse, neglect, and/or improper use of such products.
All claims must be made in writing within 30 days after delivery of the product and must be accompanied by evidence of the non-conformance, including but not limited to photographic, testing results, etc., unless such evidence is impracticable to obtain. Failure to submit claim and accompanying evidence within stated time period shall constitute a waiver by Buyer of any such claims. Seller will not accept any set-offs of amount owed, short payments, or penalty fees in response to claims. All disputes requiring a remedy will be handled by replacement of the affected product or by credit or debit memos issued by Seller. Claims for any damage to product in transit by a carrier must be filed by the Buyer with the carrier as Seller’s orders ship FCA Origin (refer to section 2), unless Seller agreed in writing to be responsible for the shipment. Should Seller accept a claim, Seller will attempt to remedy the claim and implement corrective action within a reasonable time, but does not guarantee a specific time frame for completion of the claim process, nor that a formal Corrective Action Report will be completed or issued. Before any claim will be honored, Seller must be given an opportunity to inspect the product in the form in which it was delivered after receiving notice of Buyer’s claim. In no event shall the liability of Seller be greater than the sale price of the particular product, and in no event shall Seller be liable for any direct, indirect, or consequential damages or for expenses incurred by use of products. Any claim that is not asserted as a claim, counterclaim, defense or set off in a judicial proceeding instituted within one (1) year after Seller’s denial thereof shall be forever waived, barred, and released.
Requests to return product must be approved by Seller and will only be accepted at Seller’s discretion. Any goods returned for a reason other than non-conformance may be subject to a restocking fee at Seller’s discretion.
Taxes and fees associated with transportation are not included in price quotes and shall be paid by the party designated on Seller’s invoice. Buyer’s price is the price quoted by the Seller irrespective of any other buyers, and no price is guaranteed to be more favorable than that paid by another buyer. Price changes will be relayed to Buyer by Seller no later than the effective date of the new pricing. Seller does not guarantee any amount of advance notice of price changes.
Any claims or controversy relating to this Contract or to matters of the place of contracting, interpretation, performance, breach and obligations of the parties shall be construed and adjudicated in accordance with the laws of the State of Ohio. The exclusive jurisdiction for any legal action or proceeding under or with respect hereto and/or the relationship between or among the parties shall be limited to the state courts located in Cuyahoga County, Ohio or the Federal District Court for the Northern District of Ohio.
This Contract shall be binding upon and relate to the benefit of the parties hereto and their representatives except that no transfer or assignment by Buyer shall bind Seller without Seller’s prior written consent and any attempt to do so shall be void and invalid.
Buyer shall indemnify and hold harmless Seller from and against any and all damages, losses, liabilities and expenses, of whatsoever kind, nature or description, (including, without limitation, reasonable attorneys’ fees and expenses) caused by claims made by third parties (excluding any party hereto or any of their respective affiliates) for injury to person (including death) or damage to tangible property arising out of (i) the deliberate wrongful act, recklessness or negligence of Buyer or (ii) Buyer’s breach of any of its representations, warranties or covenants hereunder; provided, however, Buyer shall not be obligated to indemnify Seller for any damages, losses, liabilities or expenses incurred by Seller to the extent attributable to the deliberate wrongful act, recklessness or negligence of Seller or to a breach by Seller of any of its representations, warranties or covenants hereunder.