1. APPLICABILITY. These Standard Terms and Conditions of Sale (“Sale Terms”) shall apply to all sales and contracts for sale of adhesive products or other chemical products (“Products”) by and between Avery Dennison Corporation, through its Performance Polymers Division – North America (“SELLER”), and any customer (“BUYER”). All sales and contracts for sale of Products are conditional on BUYER’s assent and agreement to these Sale Terms and SELLER’s order confirmation form issued to BUYER (collectively “the Agreement”). SELLER hereby objects to and rejects any terms or conditions contained in any purchase order or other communication of any kind from the BUYER that is conflicting, inconsistent or additional to this Agreement. All orders submitted by BUYER are subject to acceptance confirmation by SELLER’s home office representatives. After an order is confirmed, the order cannot be cancelled by BUYER except upon terms that will fully compensate SELLER.
2. PRICE. All prices are EXW Incoterms 2010® SELLER’s shipping point, no freight allowed. SELLER has the right to revise any price previously quoted, without notice to BUYER at any time prior to SELLER’s confirmation of an order. Prices for the Products ordered shall be those contained in SELLER’s price list in effect on the date of shipment, notwithstanding any earlier quote or order confirmation.
3. PAYMENT TERMS. Invoices shall be paid in full within 30 days following date of invoice, net cash. Time is of the essence for payment. No deductions, withholdings, or any set-offs by BUYER shall be allowed for any reason. Invoices not paid within 30 days of due date shall thereafter bear monthly service charges at the rate of 2% per month on the unpaid balance until paid in full. If any invoice is in error, Buyer must provide notice and details to Seller of such errors not later than five (5) days after the date of the invoice. By placing an order for, and accepting shipment of, Products, BUYER warrants that it is not insolvent. If in SELLER’s sole discretion BUYER’s financial condition does not justify continuance of production or shipment on the price or payment terms stated herein, SELLER may without notice to BUYER hold or cease shipments, alter or revoke payment or credit terms, and/or require payments in advance or security satisfactory to SELLER. The amount of any present or future federal, state, local or other taxes applicable to the sale of Products shall be added to the price and paid by BUYER unless BUYER provides SELLER with a valid exemption certificate acceptable to SELLER and the appropriate taxing authority. SELLER has the right to set-off any liability to BUYER against any liability of BUYER to SELLER. If SELLER engages an attorney to attempt collection or commence a collection action to recover unpaid invoices due and owing, BUYER shall be liable for attorneys fees of 15% of the past due amount.
4. SHIPMENT, TITLE, RISK OF LOSS AND TRANSPORTATION TERMS. Shipping term is EXW Incoterms 2010® SELLER’s facility in Mill Hall, Pennsylvania. Title to, and risk of loss for, all Products shall pass to BUYER upon SELLER placing the Products for BUYER’s disposal at this location’s shipping point.
SELLER reserves the right to specify the carrier and routing of shipments. If BUYER requests a carrier or route other than one specified by SELLER, BUYER may be subject to collect freight terms in SELLER’s sole discretion. BUYER is responsible for all freight charges. Freight charges may be prepaid by SELLER and billed to BUYER, at SELLER’s discretion and as may be agreed between the parties and confirmed in SELLER’s order confirmation.
SELLER makes reasonable efforts to ship on or before the scheduled shipping date(s) reflected on SELLER’s order confirmation and/or invoice, but such schedule may vary due to, among other things, delays by third party suppliers or information to be supplied by BUYER. If no shipment date is specified, shipment will be made on date(s) selected by SELLER. SELLER shall not be liable for any damages or penalties of any kind for any early or late delivery.
5. NONCONFORMING PRODUCTS AND TRANSIT DAMAGE CLAIMS. BUYER shall accept SELLER’s point of shipment weights and measurements, unless proven incorrect. BUYER must accept the entire shipment as tendered, and promptly upon delivery at BUYER’s location must write on the freight bill any missing or altered Products, or any portion of the shipment that does not conform to the Products listed on the freight bill or order confirmation (“Nonconforming Products”). This must be reported to SELLER within forty-eight (48) hours of receipt of the shipment for obvious or non-latent nonconformities, and within ten (10) business days for any hidden or latent nonconformities. Time is of the essence. Failure of BUYER to give such notice shall constitute a waiver by BUYER of all claims in respect thereto. For verified claims, SELLER may replace the Product or refund the purchase price, in SELLER’s discretion. These remedies are BUYER’s exclusive remedies for the delivery of Nonconforming Products. Failure to follow the above requirements and SELLER’s claims handling procedures, as may be communicated in writing to Buyer, bars any claim for Nonconforming Products. BUYER can only return Non-Conforming Products in accordance with SELLER’s written instructions concerning shipping, handling insurance and related matters. SELLER is not liable for Product damaged in shipment or otherwise defective without fault of SELLER, or defects due to BUYER’s or third party’s negligence, tampering or failure of proper storage or care.
Under no circumstances shall SELLER be responsible for any damage or shortage on collect shipments unless proven to be the fault of SELLER.
If Buyer selects the carrier, Buyer shall be solely responsible for paying the carrier, all transit damage and shortage claims must be made with the Buyer’s carrier; and Seller has no responsibility whatsoever for such claims.
6. FORCE MAJEURE. SELLER shall not be liable for any losses or damages, either direct or consequential, or any kind, delays, changes in shipment schedules or failure to deliver caused, directly or indirectly, by circumstances beyond SELLER’s reasonable control including, without limitation, accidents, fires, strikes, riots, civil commotion, insurrection, war, the elements, embargoes, failure of carriers, inability to obtain transportation facilities, government requirements, acts of God, or public enemy, prior orders from customers or limitations on SELLER’s or its suppliers’ production, marketing or sales activities, or failure of any third party to honor its contractual commitments. When any such circumstances occur, SELLER has the right, in its discretion, to allocate, or not allocate, available production, deliveries, raw materials and resources among any or all purchasers, as well as among divisions, departments, subsidiaries and affiliates of SELLER, upon any basis as SELLER may determine, without liability whatsoever for any failure to perform.
7. WARRANTY. ALL STATEMENTS, SERVICES, INFORMATION AND RECOMMENDATIONS (TECHNICAL OR OTHERWISE) RELATING TO SELLER’S PRODUCTS, AND THE USE OR APPLICATION OF SUCH PRODUCTS, ARE BELIEVED TO BE RELIABLE BUT DO NOT CONSTITUTE AN EXPRESS OR IMPLIED GUARANTEE OR WARRANTY AS TO ACCURACY, COMPLETENESS OR RESULTS TO BE OBTAINED. BUYER ASSUMES FULL AND SOLE RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINING THE SUITABILITY OF PRODUCTS FOR ANY INTENDED PURPOSE.
SELLER’s Products are warranted for ninety (90) days from date of shipment to conform to SELLER’s own product specifications. This warranty applies solely to the original BUYER of the Products and creates no rights or obligations for any third party. For any Product that does not conform to SELLER’s specifications, BUYER’s sole and exclusive remedy for breach of this warranty shall be the replacement of the Products or, at SELLER’s option, the issuance of a credit or refund in an amount up to the purchase price of the defective Product. In the event this remedy fails of its essential purpose, the LIMITATION OF CALIMS AND LIABILITY set forth in Section 8 of this Agreement, including but not limited to the exclusion of consequential damages, shall nevertheless be legally operative as if independent of the sole and exclusive remedy referenced in the this Section 7. In no event shall SELLER be responsible for claims, individually or in the aggregate, beyond the purchase price of the Product that does not meet this warranty. BUYER shall maintain traceability of Products, either in storage or in converted form, to confirm a claim is based on SELLER’s actual Product, and lack of traceability shall result in denial of a claim in whole or in part.
THE WARRANTY SPECIFICALLY SET FORTH ABOVE IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE AND/OR NON- INFRINGEMENT. SELLER SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER SUCH WARRANTIES.
No representative or agent of SELLER is authorized to give any guarantee or warranty or make any representation contrary to the terms herein, unless in writing and manually signed by an executive officer of SELLER.
8. LIMITATION OF CLAIMS AND LIABILITY. IN CONNECTION WITH THE SALE OF ANY PRODUCT OR ANY CONTRACT FOR SALE, AND IN CONNECTION WITH ANY KIND OF SERVICE PROVIDED BY SELLER TO BUYER (SUCH AS TECHNICAL SERVICES, CONSULTATIONS, AND RESPONSES TO PRODUCT INQUIRIES), NO CLAIM BY BUYER OF ANY KIND, AND NO LIABLITY OF SELLER OF ANY KIND, SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES IN RESPECT OF WHICH DAMAGES ARE CLAIMED. BUYER’S SOLE AND EXCLUSIVE REMEDY IS REPLACEMENT OF PRODUCT OR THE ISSUANCE OF A CREDIT OR REFUND IN AN AMOUNT UP TO THE PURCHASE PRICE FO THE DEFECTIVE PRODUCT, IN SELLER’S DISCRETION. SELLER SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION, DIMINUTION IN VALUE AND LOST PROFITS, REGARDLESS OF HOW SUCH DAMAGES ARE CHARACTERIZED) ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT OR THE SALE OR DELIVERY OF ANY PRODUCT. CLAIMS AND COURT ACTIONS NOT FILED BY BUYER WITHIN 12 MONTHS OF THE DATE THE CAUSE OF ACTION HAS ACCRUED ARE WAIVED AND BARRED.
9. COMPLIANCE WITH LAWS; HAZARDOUS MATERIALS. All permits, licenses and governmental approvals of whatever nature relating to the purchase, possession, transportation, storage, processing, maintenance, handling, labeling, use and/or disposition of Products after delivery to BUYER shall be obtained by, and be the sole responsibility of, BUYER. BUYER shall comply with all laws, ordinances, orders, rules and regulations relating in any way to its purchase, possession, transportation, storage, processing, maintenance, handling, labeling, use and/or disposition of Products. BUYER acknowledges and agrees that some or all Products it purchases may bear or contain hazardous chemicals or materials and may directly or indirectly be hazardous to life, health or property by reason of toxicity, flammability, explosiveness or other reasons, during use, handling, cleaning, reconditioning, disposal or at any other time. BUYER agrees to give warnings of the possible hazard to any person or persons to whom BUYER resells or gives or delivers the Products or whom BUYER can reasonably foresee may be exposed to their hazards.
EXCULPATION AND INDEMNITY – BUYER RELEASES AND DISCHARGES SELLER AND ITS SUCCESSORS AND ASSIGNS FROM ANY AND ALL LIABILITY FOR DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) DIRECTLY OR INDIRECTLY RESULTING FROM THE PRESENCE, USE OR RE-SALE OF PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL LIABILITY DIRECTLY OR INDIRECTLY RESULTING FROM THE FAILURE OF THE SELLER TO GIVE MORE SPECIFIC WARNINGS WITH RESPECT TO INDIVIDUAL PRODUCTS OR FROM THE INADEQUACY OF ANY WARNING. BUYER ALSO AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ITS SUCCESSORS AND ASSIGNS, AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) IN CONNECTION WITH ANY SUIT, ACTION OR CLAIM ALLEGING LIABILITY FOR LOSS, DAMAGES, COSTS, EXPENSES OR INJURY OF ANY KIND, INCLUDING TO PERSONS OR TO THE PROPERTY OF THE BUYER OR TO ANY OTHER PERSON OR ENTITY, ARISING OUT OF OR RELATING TO THE USE, PRESENCE OR RE-SALE OF THE PRODUCTS.
10. INTELLECTUAL PROPERTY. BUYER agrees to indemnify and hold harmless SELLER against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) in connection with any suit, action or claim alleging intellectual property infringement in connection with BUYER’s use of the Products in combination with other goods or in the operation of any process or application, as well as the sale of any goods incorporating Products. This indemnification does not include any claim that a Product, by itself, infringes a third party’s intellectual property.
11. TERMINATION. SELLER may terminate this Agreement immediately upon written notice to BUYER if BUYER fails to pay any invoice when due or becomes insolvent (as determined in SELLER’s discretion), undergoes a reorganization for the benefit of creditors, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of credits.
12. ENTIRE AGREEMENT, WAIVER. No waiver, alteration, addition or modification of the Agreement shall be valid unless made in writing and signed by BUYER and an executive officer of SELLER. The Agreement is the entire, final, complete and fully integrated agreement between the parties, and supersedes all prior or contemporaneous oral or written understandings, negotiations, warranties, or agreements of any kind. In the case of a conflict between the Agreement and a written contract signed by both parties, the following order of precedence shall be made: (1) a written contract manually signed by both parties; and (2) the Agreement. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement may be construed as a waiver thereof.
13. NO THIRD PARTY BENEFICIARIES. This Agreement, including but not limited to any warranties or other rights expressed herein, is intended exclusively and solely for the benefit of the parties hereto and their respective successors and permitted assigns, and not for any subsequent purchasers or users of the Products. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy. SELLER hereby expressly disclaims any intention to benefit any third party. Any and all third parties who may discover any benefit hereunder are not intended beneficiaries, and such parties have no enforceable rights under this Agreement.
14. NO ASSIGNMENT. This Agreement and the benefits and obligations hereunder cannot be assigned or delegated by the BUYER without the express written, signed consent of the SELLER, and any attempt by BUYER to so assign or delegate shall be null and void from its inception.
15. SEVERABILITY. Each paragraph and provision hereof is severable and if any provision is held invalid or unenforceable the remainder shall nevertheless remain in full force and effect.
16. LAW AND JURISDICTION. Any and all disputes between the parties to this Agreement, whether arising from the Agreement itself or from alleged extra-contractual facts prior to, during, or subsequent to the formation of this Agreement, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of the contract or Agreement, and including all disputes that arise out of or relate to Products or to sales and contracts for sale of Products shall be governed by and construed in accordance with the laws of the State of Pennsylvania without reference to conflict of laws principles. The parties agree to exclude the application of the UN Convention on Contracts for the International Sale of Goods. The state and federal courts located in Pennsylvania shall have exclusive jurisdiction over any dispute concerning Products, this Agreement, or any sale or contract for sale of Products. Any court action must be filed within twelve (12) months from the date the claim has accrued, or is forever waived and barred.
AVERY DENNISON CORPORATION
PERFORMANCE POLYMERS DIVISION – NORTH AMERICA