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Reseller Terms and Conditions

  1. 1. Purchase Price.
    a. Price. The price for the Products shall be the price quoted by Seller to Buyer in writing, or, in the event no quotation was made, at the price set forth on Seller’s price list in effect as of the date of delivery requested by Buyer. Typographical errors in stated product prices are subject to correction. Seller will not accept a purchase order requesting a delivery of Products that is less than the listed price.

    b. Shipping, Insurance and Taxes. All prices for Products are quoted FOB. Seller will arrange for shipment of the Products to the location stated by Buyer in the purchase order. All charges relating to the shipment, delivery or insuring of the Products during shipment shall be added to the invoice for the Products and shall be paid by Buyer. The amount of any present or future sales, revenue, excise, or other tax applicable to the sale of the Products to Buyer shall be added to the purchase price and shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the appropriate taxing authorities.

  2. Payment Terms.
    a. Terms of Payment. Buyer shall pay the total purchase price for the ordered Products in advance of shipment, unless Seller agrees in a separate writing to grant payment terms to Buyer. If Seller agrees to grant payment terms to Buyer, Seller may alter or revoke such credit terms at any time without notice. If, in Seller’s sole judgment, Buyer’s financial condition or any other circumstance causes Seller to be insecure with respect to Buyer’s performance of any obligation under a purchase order, Seller may accelerate and demand immediate payment of any amounts owed Seller, cancel a purchase order or suspend performance under a purchase order.

    b. Disputed Invoices. Buyer shall pay invoices rendered by Seller covering Products not in dispute regardless of disputes relating to other invoices. Buyer waives the right to assert offsets or counter claims with respect to such invoices.
    c. Late Payment Fee. Any amounts not paid by Buyer when due will be subject to a late payment fee computed daily at a rate equal to the lesser of one percent (1.0%) per month or the highest rate permissible under applicable usury law. Buyer shall also be liable to Seller for all costs incurred by Seller in its collection of any amounts owing by Buyer which are not paid when due, including collection agency fees and expenses and reasonable attorneys’ fees and expenses, regardless whether actual lawsuit is commenced against Buyer. In addition, if any amounts are not paid by Buyer when due, Seller may elect to withhold further shipments of Products to Buyer or ship Products on a C.O.D. basis until the account is current.

  3. Shipment and Delivery Terms.
    a. Shipment. Seller will package the Products for domestic shipment in accordance with standard commercial practices. The carrier shall be deemed to be Buyer’s agent, and Buyer shall make all claims with respect to damage in transit against the responsible carrier.

    b. Title to Products, Risk of Loss. Title to and all risk of loss concerning the Products shall pass to Buyer upon delivery to a common carrier, or to any private carrier designated by Buyer, for shipment to Buyer. Buyer’s rejection of any Products shall not shift such risk until the Products are returned to Seller, freight prepaid, pursuant to Seller’s written authorization.

    c. Delivery Schedule. Buyer shall provide Seller with at least ten (10) days lead time from the date a purchase order is submitted and the delivery dates requested by Buyer in the purchase order. Any delivery dates agreed to by Seller are estimates only based on prevailing conditions as of the date agreed, and Seller’s failure to meet the same shall not be deemed a breach of this Agreement by Seller.

    d. Force Majeure. Seller shall not be liable to Buyer for any delay or failure of delivery or of any other performance caused in whole or in part by any contingency beyond Seller’s reasonable control, including, without limitation, fire, flood, acts of God, terrorist activities, acts of any government or any agency or subdivision thereof or shortage of or inability to secure labor, fuel, energy, raw materials, supplies or machinery at reasonable prices or from regular sources. In the event of raw material shortages Seller may allocate product production among its customers without liability to Buyer.

    e. Inspection and Acceptance. Buyer shall inspect all Products upon arrival and shall notify Seller in writing of any shortages, nonconformance with the purchase order or any other failures to conform to this Agreement which are reasonably discoverable upon arrival. Any such shortages and other discoverable nonconformance or other failures under this Agreement not reported within thirty (30) days after receipt of the Products shall be forever waived by Buyer.

    f. Cancellation or Modification of Order. Buyer’s order shall not be subject to cancellation or reduction in any amount after Seller has accepted such order, without the express, prior written consent of Seller. If Seller agrees to any extension of a scheduled shipment date beyond thirty (30) days of the original scheduled shipment date, Buyer shall pay Seller twenty percent (20%) of the purchase price of the Products subject to such extended shipment date to cover Seller’s damages relating to the extension of the shipment date.

    g. No Returns. All sales of the Products to Buyer are final. Buyer may not return any Products for any reason.

  4. Limited Warranty.
    a. Limited Consumer Warranty. Seller provides a limited warranty to the initial consumer purchaser of the Product (the “Limited Warranty”). Seller will provide Buyer with a copy of the Limited Warranty. Buyer agrees that it shall not extend any additional or different warranty to any party regarding the Products.
    b. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY EXTENDED TO THE INITIAL CONSUMER PURCHASER OF THE PRODUCTS, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR ANY OTHER MATTER. No employee or representative of Seller shall have any authority to bind Seller to any warranty or representation, except as expressly stated herein.

  5. Indemnification.
    a. Representation. At no time shall Buyer serve as an agent or representative of Personal Health Product Development (“pHresh Products”), and Buyer has no authorization to enter into any contract or commitment in the name of or on the behalf of Personal Health Product Development (“pHresh Products”) nor to incur any expense to or on behalf of Personal Health Product Development’s (“pHresh Products”) account. The relationship of the parties comprises that of seller and purchaser, and no more, with the Buyer purchasing from Personal Health Product Development (“pHresh Products”) and reselling for its own account and risk.

    b. Hold Harmless. Buyer assumes all risk and liability for the resale of the Product, including the Product’s selection, use and performance, and Buyer will indemnify and hold harmless Personal Health Product Development (“pHresh Products”) from and against any and all liabilities, damages, losses, claims, suits or judgments, and expenses (including reasonable attorney fees) that Personal Health Product Development (“pHresh Products”) may incur to the extent caused by Buyer’s performance or breach of this Agreement or Buyer’s purchase, possession, use, claims or re-sale of Products.

    c. Claims & Warrants. Buyer shall not make any representation or warranty whatsoever related to the Product except as expressly set forth and limited within the Personal Health Product Development (“pHresh Products”) Terms & Conditions. Notwithstanding different or additional terms or conditions contained in Buyer’s purchase orders, invoices, or other communications to Personal Health Product Development (“pHresh Products”) or any customer, any addition to or alteration of the Personal Health Product Development (“pHresh Products”) Terms & Conditions shall be effective only if expressly made in a writing signed by an officer of Personal Health Product Development (“pHresh Products”).

  6. Packaging Liability.
    Personal Health Product Development (“pHresh Products”) SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCT WHOSE CONTAINER OR OTHER PACKAGING HAS BEEN OPENED OR OTHERWISE COMPROMISED IN ANY WAY AND/OR FOR ANY PURPOSE PRIOR TO ITS USE BY THE END CUSTOMER; INCLUDING, BUT NOT LIMITED TO, REPACKAGING OR BLENDING OF THE PRODUCT BY BUYER OR INCORECT STORAGE.

  7. Trademarks & Intellectual Rights.
    Buyer shall only use Personal Health Product Development’s (“pHresh Products”) trademarks, trade names, logos, service marks, trade dress or brand names (“Trademarks”) in connection with the solicitation and sales of Products and in such manner as is specified in advance in writing by Personal Health Product Development (“pHresh Products”). Buyer acknowledges Personal Health Product Development’s (“pHresh Products”) ownership of and title to the Trademarks and shall not at any time take or fail to take any action that would damage Personal Health Product Development’s (“pHresh Products”) rights in the Trademarks. Buyer will not use any trademark or trade names or trade dress which resemble Personal Health Product Development’s (“pHresh Products”) Trademarks or which would be likely to confuse or mislead any member of the public. Buyer will not remove or alter any Trademarks, numbers or other means of identification on Products or the Product packaging.

  8. General Terms.
    a. Applicable Law. The validity, performance and construction of these Conditions of Sale, and any disputes arising from or relating thereto, shall be governed by the laws of the State of Delaware without reference to the principles of conflicts of laws. The parties agree that the exclusive venue for any action arising out of or related to the Agreement shall be in the courts with the appropriate jurisdiction serving New Castle, Delaware and each party irrevocably submits to the jurisdiction of each such court in any such action and waives any objection it may now or hereafter have to venue or personal jurisdiction in each such court.

    b. Assignment. BUYER MAY NOT ASSIGN THIS AGREEMENT WITHOUT SELLER’S PRIOR WRITTEN CONSENT. Seller may assign all or any part of its rights and/or obligations under this Agreement to any Seller subsidiary or any unrelated subcontractor without Buyer’s consent.

    c. Modification and Waiver. No purported amendment, modification or waiver of any provision hereof shall be binding unless set forth in writing signed by an officer of Seller and an officer of Buyer. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. The failure of Seller or Buyer to enforce any provision of this Agreement at any time shall not be construed to be a waiver of such provision nor of the right of Seller or Buyer thereafter to enforce such provision.

    d. Severability. If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.

  9. No Diversion of Product.
    Unless expressly agreed to in writing by Personal Health Product Development (“pHresh Products”), Buyer shall not sell, assign, transfer, divert or otherwise provide Personal Health Product Development (“pHresh Products”) products to any dealer, third party retailer, distributor, department store chain, discount retailer, “box store” or any other person for the purpose of resale. Nothing in these Conditions of Sale shall prohibit Personal Health Product Development (“pHresh Products”) from selling Personal Health Product Development (“pHresh Products”) products directly to third party retailers, distributors, department store chains, discount retailers, “box stores” or any other person.

  10. Minimum Advertised Price (MAP) Policy.
    Personal Health Product Development (“pHresh Products”) policy regarding the advertising and pricing of its products is as follows:

    A. Purpose. Personal Health Product Development’s (“pHresh Products”) MAP Policy is designed to avoid depreciation of, or damage to, the trademarks, brands or trade names under which its products are sold. Personal Health Product Development’s (“pHresh Products”) intention and policy is to engage and take action upon any dealer, distributor, retailer or other person that advertises certain Personal Health Product Development (“pHresh Products”) products below Personal Health Product Development’s (“pHresh Products”) current and published Minimum Advertised Price (MAP), which may be found on the most current version of Personal Health Product Development’s (“pHresh Products”) MAP Pricing Schedule, which is found at www.pHreshproducts.com/MAP.

    B. Minimum Advertised Pricing. A dealer, distributor, retailer or other person may advertise at any price it chooses, as long as it is not less than Personal Health Product Development’s (“pHresh Products”) current and published MAP. Personal Health Product Development (“pHresh Products”) hereby provides notice that advertising Personal Health Product Development’s (“pHresh Products”) products using Personal Health Product Development’s (“pHresh Products”) copyrighted and trademarked materials (including, without limitation, all marks, logos, words, photographs or product descriptions) at a price below Personal Health Product Development’s (“pHresh Products”) current and published MAP for such products constitutes a violation of this policy and shall lead to remedial action by Personal Health Product Development (“pHresh Products”) which may include but be not limited to any and all applicable legal action, cancellation of orders and discontinuance of business with such dealer, distributor, retailer or person.

    C. Advertising Defined. For the purposes of this policy, the term “advertising” shall include any listing, description or graphic display of Personal Health Product Development (“pHresh Products”) products using Personal Health Product Development’s (“pHresh Products”) copyrighted and trademarked materials (including, without limitation, all marks, logos, words, photographs or product descriptions) accessible to customers directly, including but not limited to, print media, television, radio, email and the Internet. It is Personal Health Product Development’s (“pHresh Products”) intention to administer the policy fairly and reasonably.

    D. Changes in MAP and Products. All Personal Health Product Development (“pHresh Products”) products may be subject to this policy, including any new products. Personal Health Product Development (“pHresh Products”) at any time, in its sole discretion, may revise this MAP policy and MAP Pricing Schedule for any product. Each addition and each revision shall be effective at such time specified by Personal Health Product Development (“pHresh Products”) in its pricing schedule, which will be provided to each Buyer.

    E. Discounts, Premiums, and Combinations. Unless conditions are specifically stated in the Map Pricing Schedule or otherwise agreed to by Personal Health Product Development (“pHresh Products”) in writing, it shall be a violation of this policy for any dealer, distributor, retailer or person to advertise the giving of any article of value in connection with the sale of any Personal Health Product Development (“pHresh Products”) products listed on the Map Pricing Schedule. Unless conditions are specifically stated in the Map Pricing
    Schedule or otherwise agreed to by Personal Health Product Development (“pHresh Products”) in writing, it shall be a violation of this policy for any dealer, distributor, retailer or person to make any concession or provide other discount applied solely in connection with the sale of any Personal Health Product Development (“pHresh Products”) products listed on the Map Pricing Schedule. Buyer acknowledges receipt of this policy and agrees that Personal Health Product Development (“pHresh Products”) has the exclusive authority to resolve all disputes, conflicts, controversies or questions in relation to this Policy.

    F. Agreement to Abide. Buyer Hereby agrees to follow Personal Health Product Development’s (“pHresh Products”) MAP Policy at all times.

  11. Confidential Information.
    The term “Personal Health Product Development (“pHresh Products”) Confidential Information” means any confidential or proprietary information pertaining to or provided by Personal Health Product Development (“pHresh Products”), including, without limitation, product plans, software, pricing, discounts, marketing and sales information, business plans, customer and supplier data, financial and technical information, “know-how,” trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form. You will keep all Personal Health Product Development (“pHresh Products”) Confidential Information confidential for a period of four years from the date of Personal Health Product Development’s (“pHresh Products”) disclosure to you, and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers’ personally-identifiable information and Personal Health Product Development (“pHresh Products”) trade secrets shall never expire. You may not disclose Personal Health Product Development (“pHresh Products”) Confidential Information to any third party without Personal Health Product Development’s (“pHresh Products”) prior written consent. You may share Personal Health Product Development (“pHresh Products”) Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any Personal Health Product Development (“pHresh Products”) Confidential Information that (i) you can demonstrate was in your possession before receipt from Personal Health Product Development (“pHresh Products”) ; (ii) is or becomes publicly available through no fault by you; or (iii) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any Personal Health Product Development (“pHresh Products”) Confidential Information, you agree to give Personal Health Product Development (“pHresh Products”) reasonable advance notice so that Personal Health Product Development (“pHresh Products”) may contest the disclosure or seek a protective order. You may use the Personal Health Product Development (“pHresh Products”) Confidential Information solely for the purpose of, and in connection with, your business relationship with Personal Health Product Development (“pHresh Products”). No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to Personal Health Product Development (“pHresh Products”) Confidential Information is granted under this Agreement except the limited rights to use the Personal Health Product Development (“pHresh Products”) Confidential Information as expressly set forth in this paragraph. Personal Health Product Development (“pHresh Products”) makes no warranties as to the accuracy or completeness of the Personal Health Product Development (“pHresh Products”) Confidential Information. ALL PERSONAL HEALTH PRODUCT DEVELOPMENT (“PHRESH PRODUCTS”) CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. To the extent permitted by law, Personal Health Product Development (“pHresh Products”) disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the Personal Health Product Development (“pHresh Products”) Confidential Information or any intellectual property in them. Upon Personal Health Product Development’s (“pHresh Products”) written request, you will promptly return all Personal Health Product Development (“pHresh Products”) Confidential Information, together with all copies, or certify in writing that all such Personal Health Product Development (“pHresh Products”) Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of Personal Health Product Development (“pHresh Products”) Confidential Information may be irreparable and that Personal Health Product Development (“pHresh Products”) shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government.

  12. Buyer’s Representations and Warranties. By placing an Order for Personal Health Product Development (“pHresh Products”) products, Buyer represents and warrants that all information Buyer provides in compliance with these Conditions of Sale and with respect to any transactions with Personal Health Product Development (“pHresh Products”) is true, accurate and complete. Buyer’s failure to comply with the Terms and Conditions shall be a material breach of these Conditions of Sale.

  13. No Agency or Joint Venture. Neither Personal Health Product Development (“pHresh Products”) nor any of its personnel are employees or agents of Buyer. Nothing in these Conditions of Sale will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.

  14. Compliance with Applicable Laws. Buyer warrants that Buyer shall comply with any and all applicable US federal and state laws, and shall operate in good faith to comply with other laws and regulations and industry best practices, applicable to Buyer’s performance under these Conditions of Sale, including those respecting unfair trade practices, anti-bribery, anti-corruption, anti-competitive or restrictive practices, health, safety, environmental, export controls, and trade sanctions. Buyer shall promptly act to correct any noncompliance once identified. Buyer shall be responsible for obtaining any required government authorizations including, without limitation, export licenses or other exemption authorizations applicable to any of its own export or re-export activities or the processing of funds received thereby.

  15. Inconsistencies: In the event of any inconsistencies or conflicts between the terms of this Agreement and the terms of any schedules or other documents attached to or relating to this Agreement, the terms of this Agreement will prevail, unless otherwise expressly stated and agreed to in a signed writing by the parties.

  16. Notices: Any notice or other communications given under this Agreement shall be in writing and shall be given by delivery in person or by overnight courier service (with signature required) to the address specified for Personal Health Product Development (“pHresh Products”) above and for Buyer on the Order and shall be effective upon receipt.

  17. Language: It is the express wish of the parties that this Agreement and any related documents be drawn up in the English language.

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