HC Companies Wholeale Planters and Plant Pots for Nurseries
The HC Companies
Planters and Pots for Horticulture
2450 Edison Blvd, Suite 3
Twinsburg, OH 44087
800-225-7712
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Terms and Conditions of Sales

TERMS AND CONDITIONS OF SALES

Revised: January [●], 2025

  1. Entire Agreement; Acceptance – THE HC COMPANIES, INC. (“THCC”) PROVIDES THESE TERMS AND CONDITIONS OF SALE (THESE “TERMS AND CONDITIONS”), WHICH APPLY TO ALL QUOTATIONS AND SALES MADE BY THCC. ALL PURCHASES BY CUSTOMER, ITS OWNER, AFFILIATES, EMPLOYEES OR AGENTS (COLLECTIVELY, “BUYER”) ARE EXPRESSLY LIMITED TO AND CONDITIONED UPON ACCEPTANCE OF THESE TERMS AND CONDITIONS. NO PROVISION, WRITTEN OR OTHERWISE, CONTAINED IN ANY ORDER, ACCEPTANCE, CONFIRMATION, ACKNOWLEDGEMENT OR OTHER WRITING WHICH IS INCONSISTENT WITH, DIFFERENT FROM, OR IN ADDITION TO THESE TERMS AND CONDITIONS IS ACCEPTED BY THCC UNLESS AGREED TO IN WRITING AND EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF THCC. FOR AVOIDANCE OF DOUBT, NO TERMS AND CONDITIONS FROM CUSTOMER (WRITTEN OR ORAL) SHALL, EVEN IF EXPRESSLY SO STATING, BE DEEMED TO OVERRIDE THESE TERMS AND CONDITIONS. DELIVERY OF THESE TERMS AND CONDITIONS TO BUYER CONSTITUTES NOTICE OF THCC’S OBJECTION TO ANY TERM OR CONDITION THAT IS INCONSISTENT WITH, DIFFERENT FROM OR IN ADDITION TO THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS REPLACE ANY AND ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS (WRITTEN OR ORAL), NEGOTIATIONS, COMMUNICATIONS, REPRESENTATIONS, OR UNDERSTANDINGS (WRITTEN OR ORAL) RELATING TO THE SUBJECT MATTER HEREOF. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS MADE BY ANY AGENT, OFFICER, OR EMPLOYEE OF THCC THAT DIFFER IN ANY WAY FROM THESE TERMS AND CONDITIONS SHALL BE GIVEN NO EFFECT OR FORCE. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF THE TRADE SHALL BE RELEVANT TO SUPPLEMENT OR EXPLAIN ANY TERM USED IN THESE TERMS AND CONDITIONS. ACCEPTANCE OR ACQUIESCENCE IN A COURSE OF PERFORMANCE RENDERED UNDER THESE TERMS AND CONDITIONS SHALL NOT BE RELEVANT TO DETERMINE THE MEANING OF THESE TERMS AND CONDITIONS EVEN THOUGH THE ACCEPTING OR ACQUIESCING PARTY HAS KNOWLEDGE OF THE NATURE OF THE PERFORMANCE AND THE OPPORTUNITY FOR OBJECTION. PLACEMENT OF AN ORDER OR ACCEPTANCE OF PRODUCTS (IN WHOLE OR IN PART) OR OTHER ASSENT BY BUYER TO THE TERMS HEREOF SHALL CONSTITUTE BUYER’S AGREEMENT TO THESE TERMS AND CONDITIONS.
  2. Payments and Credit – Payment shall be made in accordance with the terms listed on the applicable invoice issued by THCC (each an “Invoice”). Each delivery is subject to, at THCC’s election, either credit arrangements or cash receipt. If payment is not made in accordance with the terms listed on the applicable Invoice, or if at any time THCC deems, in its sole discretion, Buyer’s credit standing to be impaired, THCC may withhold delivery of any product ordered until cash or credit arrangements satisfactory to THCC, in its sole discretion, have been established.
    1. Should Buyer fail to make payment in-full within the time period set forth on THCC’s invoice, Buyer shall pay to THCC interest on the unpaid amount at the lesser of (i) 2% per month, compounded monthly or (ii) the highest rate permissible under applicable law. If legal action is taken by THCC to collect any amount due hereunder, Buyer shall pay all collection agency fees, court costs and reasonable attorney’s and expert witnesses’ fees incurred by or on behalf of THCC in bringing such action.
    2. Credit Card Payments – Surcharge on Credit Card Transactions. If THCC permits Buyer to use a credit card as payment of an invoice, THCC will apply a surcharge to the transaction currently equal to 2.72% of the total transaction amount (after accounting for all discounts or rebates, if any) (the “Surcharge Rate”); provided, however, that (i) a surcharge will not be applied in any state or territory that statutorily prohibits credit card surcharges in commercial transactions and (ii) the Surcharge Rate will not be greater than the discount rate THCC is charged by the applicable credit card company. THCC may change the Surcharge Rate from time-to-time, and notice of any such change will be given at the point of sale.
  3. Price Changes – Unless otherwise stated in the applicable Invoice, the prices are subject to change from time-to-time by THCC without notice. Revised prices will apply to shipments made on and after the effective date of a price change.
  4. Taxes, Tariffs, Fees, Fines and Assessments – Buyer will reimburse THCC for any tax, tariff, fees, fines, penalties or other government charge upon the sale, production or transportation of any product sold to Buyer, including, without limitation, those in connection with Oregon (SB-582), Colorado (HB-22-1355), California (SB-54) and any other similar state’s laws or regulations (collectively, “ERP Fees”).
  5. Shipment Quantities – Custom Items (Branded – Printed/Labelled) – THCC reserves the right to adjust, and Buyer agrees to accept, original order quantities ± 10% to account for fluctuations in manufacturing yield quantities.
  6. Buyer Pick–Up – At some locations, Buyer pick–up of ordered products can be arranged. These arrangements must be made and confirmed at the time the order is placed.
  7. Shipment or Pickup Issues – If for any reason Buyer fails to accept delivery of or pick up, as the case may be, any of the products ordered, or if THCC is unable to deliver the products because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss of the products will pass to Buyer; (ii) the products will be deemed to have been delivered; and (iii) THCC, at its option, may either store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance), or ship the products ordered via common carrier, consistent with THCC’s Freight Policy. In addition, a staging fee of $100 will apply beyond three business days of notification.
  8. Separate Sale – Each product delivery shall stand as a separate sale and irregularity of any delivery shall not invalidate an order as to the remaining installments.
  9. Representation and Warranty – Buyer hereby represents and warrants that it is solvent, that it pays and will pay its obligations as they come due and that the fair market value of its assets exceeds its disputed and undisputed liabilities. These representations and warranties shall be deemed to be repeated in each purchase order issued by Buyer, and are incorporated therein by reference.
  10. Title and Risk of Loss – Title to and risk of loss of product will pass to Buyer after Buyer picks up the product or THCC makes the product available to the carrier at the shipping point, as applicable, unless other title and risk of loss terms are agreed to in a writing signed by both parties.
  11. Ownership – All tooling, dies, blueprints plans and specifications in connection with the products shall remain the sole property of THCC unless otherwise agreed to in a writing signed by both parties. Buyer does not and will not acquire ownership or any rights in THCC’S patents, inventions, processes, technical data, brands, trade names, copyrights, or other intellectual property (“THCC’s IP”) regardless of when THCC’s IP is invented, conceived, generated, created, produced, or registered. THCC reserves all rights in THCC’s IP. Unless otherwise agreed to in a writing signed by both parties, all intellectual property rights produced from or arising from the products will, so far as not already vested, become the absolute property of THCC, and Buyer will do all that is reasonably necessary to ensure that such rights vest in THCC by the execution of appropriate instruments or the making of agreements with third parties.
  12. Return of Good Product – If Buyer desires to return product that meets product specifications, Buyer may NOT do so unless the following conditions have been met: (i) THCC has authorized the return in writing; (ii) the product is unused and undamaged, and is currently standard THCC stock; (iii) the product is returned with all freight prepaid by Buyer; and (iv) Buyer pays a restocking fee of 20% of the original purchase price. If a return is allowed, THCC must be notified within 30 days of invoice. All returned goods must be assigned a Return Authorization Number by THCC, and that number must be displayed prominently upon each pallet, carton or case returned, as applicable. Notwithstanding the foregoing, custom products made to specifications of Buyer are NOT eligible for return.
  13. Force Majeure – THCC will be excused from its obligations to the extent that performance is delayed or prevented by any circumstances beyond its reasonable control including, but not limited to, floods, wars, fire, explosion, epidemic, sabotage, accidents, mechanical breakdown, strikes or other labor disputes, plant shutdown, inability to obtain materials, unavailability to, or interference with, the usual means of transporting product, or compliance with any law, regulation, or request of any government authority (each a “Force Majeure”). The occurrence of a Force Majeure shall act to suspend THCC’s obligation to perform, and either party may cancel its obligations to the other that are subject to a Force Majeure lasting more than 30 consecutive days. Notwithstanding the foregoing, Buyer’s duty to pay for product received shall never be suspended.
  14. Allocation – If for any reason THCC is unable to produce sufficient product to meet its internal needs and the requirement of its customers, THCC shall be permitted, without liability to Buyer, to allocate its product (including any product to be sold and delivered to Buyer) in a manner THCC deems, in its sole discretion, to be fair and reasonable.
  15. Limited Warranty –
    1. THCC warrants that the products sold hereunder shall conform to THCC’s specifications and that THCC will convey good title to the products to Buyer (the “Limited Warranty”). Specifications are subject to change by THCC without notice. Weights, capacities and other specifications are for information purposes only and their accuracy is not guaranteed.
    2. THCC shall not be liable for a breach of the Limited Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to THCC within 10 days of the time when Buyer discovers or reasonably should have discovered the defect; (ii) THCC is given a reasonable opportunity after receiving the notice to examine the products, and Buyer (if requested to do so by THCC) returns the products to THCC’S place of business for examination; (iii) Buyer provides reasonable cooperation and any additional information THCC reasonably requests to ascertain Buyer’s warranty claim; and (iv) THCC verifies Buyer’s claim that the products are defective.
    3. Notwithstanding anything to the contrary, THCC shall not be liable for a breach of the Limited Warranty if: (i) Buyer makes any further use of such products after giving notice; (ii) the defect arises because Buyer failed to follow THCC’S instructions as to the storage, handling, installation, commissioning, use, and maintenance of the products; (iii) Buyer alters or repairs the products without the prior written consent of THCC; or (iv) the defect arises due to (1) accident, abuse, misuse, alteration, or misapplication, (2) improper or insufficient handling, installation, or maintenance, (3) perils such as fire, earthquakes, storms, acts of nature, or any other causes beyond THCC’S control, or (4) the incompatibility of the products with third party materials or products.
    4. THERE ARE NO WARRANTIES MADE BY THCC EXTENDING BEYOND THOSE IN THIS PARAGRAPH. THCC DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONE OF WHICH SHALL BE OF ANY FORCE OR EFFECT.
  16. Limitations of Liability – NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS AND CONDITIONS TO THE CONTRARY, TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THCC BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SALES, BUSINESS INTERRUPTION, DOWN TIME, INJURY TO PERSON OR PROPERTY OR ANY OTHER INCIDENTAL LOSS OR DAMAGE RESULTING FROM THE SALE, USE OR HANDLING OF THE PRODUCTS.
  17. Indemnification – Buyer shall indemnify, defend, and hold harmless THCC, its affiliates, and their respective shareholders, officers, directors, employees, agents, affiliates, successors, and assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees or expenses of whatever kind, including reasonable attorneys’ fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, in any way relating to a claim arising out of or occurring in connection with (a) Buyer’s handling, installation, or use of the products, (b) Buyer’s negligence or willful misconduct, (c) Buyer’s breach of these Terms and Conditions, or (d) ERP Fees in connection with the sale, production or transportation of any product sold to Buyer. Buyer will not enter into any settlement without the Indemnified Party’s prior written consent, which will not be unreasonably withheld.
  18. Product Recall – In the event of a product recall, THCC shall promptly notify Buyer and provide detailed instructions on the actions to be taken. Buyer shall cooperate fully with THCC in executing the recall process.
  19. Technical Advice – For the protection of both parties, technical advice for the handling and use of any product should be given in writing. THCC will not be liable for any advice given by it or its agents unless such advice is given or confirmed in writing. Any advice given by THCC for the use of its products is based upon tests or data believed to be reliable, but THCC MAKES NO WARRANTIES AS TO THE RESULTS TO BE OBTAINED. Buyer assumes all risk and liability that may result from the use of any product whether used singly or in combination with other products.
  20. Insurance – Buyer will maintain liability insurance with commercially reasonable limits and in commercially reasonable amounts for death, bodily injury and property damage and shall maintain such insurance for a period of at least two years following its last purchase of products. This insurance shall be written by a reputable, financially secure insurance company. Upon request, Buyer shall provide verification of this insurance coverage by submitting a certificate of insurance to THCC. Buyer’s liability under the Agreement shall not be limited to the sum insured.
  21. Independent Contractor – Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture, or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.
  22. Construction; Severability – Paragraph headings in these Terms and Conditions are for the convenience of the parties only and will have no legal effect whatsoever. The provisions of these Terms and Conditions will be deemed severable, and the invalidity or enforceability of any provision will not affect the validity and enforceability of the other provisions of these Terms and Conditions. If any provision of these Terms and Conditions is unenforceable for any reason whatsoever, such provision will be appropriately limited and given effect to the extent that it may be enforceable.
  23. Assignment – Buyer may not assign these Terms and Conditions or any Invoice, or any interest herein or therein, without the prior written consent of THCC. These Terms and Conditions and each Invoice, and all of the provisions herein and therein, shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  24. Amendment – Neither these Terms and Conditions nor any Invoice may be modified or amended except in writing signed by both parties.
  25. Patents and Trademarks – Buyer shall indemnify, defend and hold THCC, its officers, directors, employees, agents, customers, successors, and assigns harmless against any expense or loss or damage (including reasonable attorney’s fees) resulting from alleged or actual infringement of copyrights, inventions, patents, trademarks, trade secrets, utility models or other proprietary rights throughout the world arising from THCC’s compliance with any designs, specifications or other instructions of Buyer.
  26. Choice of Law – These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Ohio without regard to conflict of law principles. The parties agree that any claim relating to these Terms and Conditions and the transactions contemplated by these Terms and Conditions shall be brought solely in the state or federal court of competent jurisdiction located in Summit County, Ohio and all obligations to personal jurisdiction and venue in any action, suit, or proceeding so commenced are hereby expressly waived by each party; provided, that a party may commence any action or proceeding in a court other than as set forth above solely for the purpose of enforcing an order or judgment issued by one of such courts. THCC and Buyer hereby expressly exclude applicability of the United Nations Convention on Contracts for the International Sale of Goods if the same would otherwise apply hereto.
  27. Limitation of Liability; Remedies; Waiver of Jury Trial – NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS AND CONDITIONS TO THE CONTRARY, TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, THCC’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARISING IN CONNECTION WITH THIS TRANSACTION UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR WARRANTY, IS LIMITED TO, AT THCC’S ELECTION, EITHER THE AMOUNT OF THE PURCHASE PRICE OF THE PRODUCT SHIPPED OR REPLACEMENT OF PRODUCT SHIPPED NOT CONFORMING TO SPECIFICATIONS. BUYER WAIVES ALL CLAIMS INVOLVING ORDERS AND PRODUCT SPECIFICATIONS THAT ARE NOT MADE WITHIN 60 DAYS FROM THE DATE OF INVOICE. EACH PARTY WAIVES ITS RIGHT TO JURY TRIAL ON ANY CLAIM ARISING FROM THIS TRANSACTION.