STANDARD TERMS AND CONDITIONS OF SALE
GRAPHIC SOLUTIONS PRODUCTS
These Standard Terms and Conditions of Sale (“Terms and Conditions”) shall apply to all sales and contracts for sale of graphic film products (“Products”) by Avery Dennison Corporation’s Graphic Films business (“AVERY DENNISON” or “SELLER”) and any customer (“PURCHASER”). All sales and contracts for sale of Products are expressly limited to and conditional on PURCHASER’s assent and agreement to these Terms and Conditions. AVERY DENNISON objects to and rejects any terms or conditions contained in any purchase order or other communication of any kind from the PURCHASER that are conflicting, inconsistent with or additional to these Terms and Conditions.
All prices are FOB for domestic U.S. shipments and EXW (Incoterms® 2010) for international shipments, at Avery Dennison’s designated shipping point. Prices are exclusive of any present or future federal, state, local or other taxes applicable to the sale of Products, or any duties or charges of any kind imposed by any governmental authority. Any such taxes shall be added to the price and paid by PURCHASER unless PURCHASER provides AVERY DENNISON with a valid exemption certificate acceptable to AVERY DENNISON and the appropriate taxing authorities. All prices are subject to change without prior notice; however, prices shall be those contained in the appropriate AVERY DENNISON price list covering the Products ordered and in effect on the “ship date” noted on the face of AVERY DENNISON’s order acknowledgment or confirmation. Orders calling for future delivery shall be invoiced at prices in effect on the ship date.
PURCHASER shall be invoiced only for the quantity actually shipped. Payment term is net 30 days from date of invoice. Time is of the essence for payment of invoices and payment is material to the sale or contract for sale of Products. A 1% discount is available if payment is received by AVERY DENNISON within ten 10 days of date of invoice, but no other deduction or any set-off shall be allowed without AVERY DENNISON’s express written permission. Invoices not paid within 30 days of date of invoice shall accrue a late payment charge of 1.0% per month, or the maximum amount permitted by law, whichever is greater, on the unpaid balance until paid (“Late Fee”). The imposition of a Late Fee is not intended to infer any consent, acquiescence or other agreement, expressed or implied, by AVERY DENNISON to forbear or otherwise defer collection of unpaid invoice amounts. PURCHASER confirms, acknowledges and agrees that it would be expensive to attempt to determine the actual damage sustained by AVERY DENNISON as the result of the default payment of any individual account and that the charge of 1.0% per month referred to above represents a reasonable endeavor to fix AVERY DENNISON’s minimum probable loss resulting from delinquent payment, that such charge bears a reasonable relation to such loss and that such charge is reasonable in amount. In the event AVERY DENNISON commences a collection action, Avery Dennison shall be entitled to recover its reasonable attorney fees, expenses and costs associated with collection of unpaid amounts.
AVERY DENNISON may, without notice to PURCHASER, hold or reject orders, hold or cease shipments of confirmed orders, alter or revoke credit terms, and/or require payments in advance, if AVERY DENNISON determines in its sole discretion that PURCHASER’s financial condition or payment history do not justify accepting new orders, shipping Product, or continuing credit terms. PURCHASER’s failure to pay any AVERY DENNISON invoice by its due date permits AVERY DENNISON to make all outstanding invoices immediately due and payable irrespective of terms, and AVERY DENNISON may reject or hold orders, or withhold deliveries, until the full account is settled. If AVERY DENNISON requests adequate assurances of PURCHASER’s ability and/or intention of paying for orders, shipments or invoices, or its ability generally to pay debts as they come due, PURCHASER will provide to AVERY DENNISON, within three days of the request, business records that are kept in the ordinary course of business and that satisfy the request.
4. ORDER ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance confirmation by AVERY DENNISON’s home office. Shipments that are more or less than the actual quantity ordered on custom orders shall constitute filling the order if such variance does not exceed the following percentages: (i) 10% where AVERY DENNISON uses standard raw materials; and (ii) 20% where AVERY DENNISON uses non-standard raw materials. After an order is accepted, it may be cancelled by PURCHASER only with AVERY DENNISON’s consent and upon terms that will fully compensate AVERY DENNISON for loss (if any) due to cancellation.
5. SHIPMENT, TITLE, RISK OF LOSS
Shipping is FOB for domestic shipments and EXW (Incoterms® 2010) for international shipments, at AVERY DENNISON’s designated shipping point. Title and risk of loss to all Products purchased shall pass to PURCHASER upon placement of the Products on a common carrier at AVERY DENNISON’s shipping point, regardless of the freight terms stated or method of payment of transportation charges. As collateral security for the payment of the purchase price, PURCHASER grants to AVERY DENNISON a lien on, and security interest in and to, all of the right, title and interest of PURCHASER in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time-to-time, and in all additions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. This security interest constitutes a purchase money security interest under the Uniform Commercial Codes of Ohio and/or the location where PURCHASER maintains the Products.
6. TRANSIT DAMAGE AND NON-CONFORMING PRODUCTS
PURCHASER must accept the entire shipment as tendered, unless PURCHASER notes obvious damage to the shipment packaging and Product, in which case the PURCHASER should take a picture of the damage, not accept the shipment from the freight carrier, and notify AVERY DENNISON. If no obvious damage to the packaging, then after acceptance of the shipment, PURCHASER shall inspect it and immediately write on the freight bill any missing or obviously damaged portion of the shipment. This must be reported to AVERY DENNISON within 48 hours of receipt of the shipment. For damage claims, the entire package must be retained until after the claim has been evaluated and a determination and/or credit memo has been issued.
Within 5 calendar days of receipt of the shipment, any concealed damage or non-conforming Products must be reported to AVERY DENNISON. Retaining the entire package is necessary until after a concealed damage inspection report is issued by the carrier, or until the non-conforming Product can be assessed. A determination of credit will be made once the claim has been evaluated. A credit will not be issued for any claims made after the 5 calendar day time period.
Speed is of utmost importance! (Time is of the essence.) Prompt inspection, as well as prompt filing, of the claim with all necessary documents will facilitate fast settlement. NOTE: Without the appropriate paperwork, credit cannot be issued.
For verified claims of transit damage or non-conforming Products, AVERY DENNISON may replace the Product or refund the purchase price, in AVERY DENNISON’s discretion. These remedies for transit damage and non-conforming Products are PURCHASER’s exclusive remedies.
PURCHASER must follow the claims handling procedures published on the website for the Graphic Solutions business (including a claim form and instructions on that form). For any questions about how to file a claim, contact the home office. All claims must be accompanied by the following documents: (i) copy of freight bill with notation of damage or shortage, and date, time and receiver’s name must be included; (ii) photograph(s) of damaged goods; and (iii) a copy of an inspection report. RETAIN COPIES FOR YOUR FILES. Under no circumstances shall AVERY DENNISON be responsible for any damage or shortage on collect shipments.
7. SHIPMENT AND TRANSPORTATION CHARGES
AVERY DENNISON reserves the right to specify the carrier and routing of shipments. AVERY DENNISON intends to ship within the time specified in AVERY DENNISON’s Sales Order Acknowledgment, if indicated and, if not, then within a reasonable time. Unless specified in AVERY DENNISON’s Sales Order Acknowledgment, freight charges shall be prepaid and billed.
Products are manufactured in compliance with all applicable requirements of the Fair Labor Standards Act, as amended. Except as otherwise agreed in a signed writing, normal tolerances in AVERY DENNISON specifications shall not be cause to reject products.
All Products are returnable only in accordance with the warranty provision in Section 10. Before returning any Product, PURCHASER must obtain from AVERY DENNISON’s home office prior written approval and instructions.
10. LIMITED WARRANTY
ALL STATEMENTS, SERVICES, INFORMATION, AND RECOMMENDATIONS (TECHNICAL OR OTHERWISE) ABOUT SELLER’S PRODUCTS, AND THE USE OR APPLICATION OF SUCH PRODUCTS, ARE BASED ON SELLER’S EXPERIENCE AND TESTING AND 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. ALL PRODUCTS ARE SOLD AND SAMPLES AND SERVICES PROVIDED WITH THE AGREEMENT THAT PURCHASER ASSUMES SOLE, INDEPENDENT RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINING THE SUITABILITY OF PRODUCTS FOR ANY INTENDED USE OR PURPOSE.
The Products are warranted for one (1) year* from date of shipment to be free from defects in material or workmanship so that the Products meet AVERY DENNISON’s specifications. This warranty applies solely to the original PURCHASER of the Products and creates no rights or obligations for any third party. Upon the determination to SELLER’s satisfaction that the Products were stored and used by PURCHASER in accordance with Seller’s suggested, applicable standards (if any) and not damaged during transportation, PURCHASER’s sole and exclusive remedy for breach of this warranty shall be the replacement of the defective 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 no event shall SELLER be responsible for claims beyond the purchase price of the defective Product. PURCHASER will maintain traceability of converted Products to confirm a claim is based on Seller’s actual Product, and lack of traceability may result in denial of a claim in whole or in part.
THE WARRANTY SPECIFICALLY SET FORTH IN THIS SECTION 10 IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. AVERY DENNISON SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER SUCH WARRANTIES.
No representative or agent of AVERY DENNISON is authorized to give any guarantee or warranty or make any representation contrary to the terms and conditions herein, unless in writing and manually signed by an officer of the company.
*Or the time periods stated on the published Product Data Sheet, if any, for the Product purchased and in effect at time of shipment. A Product’s durability time period shall be as stated in the relevant PDS and subject to the terms, conditions, and instructions contained in the PDS and any associated instruction bulletins and manuals.
11. LIMITATION OF LIABILITY
IN CONNECTION WITH PRODUCTS, THE SALE OF PRODUCTS OR ANY CONTRACT FOR SALE OF PRODUCTS, AND IN CONNECTION WITH ANY KIND OF SERVICE PROVIDED BY SELLER TO PURCHASER (SUCH AS TECHNICAL SERVICES, CONSULTATIONS, AND RESPONSES TO PRODUCT INQUIRIES), NO CLAIM BY PURCHASER OF ANY KIND, AND NO LIABLITY OF AVERY DENNISON OF ANY KIND, SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES IN RESPECT OF WHICH DAMAGES ARE CLAIMED. PURCHASER’S SOLE AND EXCLUSIVE REMEDY IS REPLACEMENT OF PRODUCT OR CREDITING OF PURCHASE PRICE, IN SELLER’S DISCRETION. CLAIMS NOT FILED BY PURCHASER WITHIN 18 MONTHS OF SHIPMENT OR SERVICE DATE ARE WAIVED AND BARRED.
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) WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSES.
None of the rights or obligations of PURCHASER related to the purchase and sale of AVERY DENNISON Products may be assigned or transferred without the prior written consent of AVERY DENNISON, and any such assignment without the prior written consent of AVERY DENNISON is null and void.
No waiver by SELLER of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and manually signed by an officer of AVERY DENNISON. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege under these Terms and Conditions precludes any other or further exercise of any right, remedy, power or privilege.
14. FORCE MAJEURE
SELLER shall not be liable to PURCHASER, nor be deemed to have defaulted or breached these Terms and Conditions, for any delay or failure in fulfilling or performing under these Terms and Conditions, delivering Products or providing services, to the extent such failure or delay is caused by or results from circumstances beyond SELLER’s reasonable control including, without limitation, changes in shipment schedules, accident, fire, strike, lockout or labor dispute, disease or epidemic, riot, civil commotion, insurrection, war, terrorist act, the elements, embargo, failure of carrier, inability to obtain transportation facilities, inability or delay in obtaining adequate or suitable materials, telecommunications or power outage, government requirements, acts of God or public enemy, prior orders from others, or limitations on AVERY DENNISON’s or its suppliers’ products or marketing activities or any other cause or contingency beyond AVERY DENNISON’s reasonable control.
15. CHOICE OF LAW
Any and all disputes that arise out of or relate to these Terms and Conditions, the Products, or sales and contracts for sale of Products shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to Ohio’s or any other state’s choice or conflict of laws provision or statute. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to international sales and shipments.
16. ENTIRE AGREEMENT
These Terms and Conditions and AVERY DENNISON’s sales order acknowledgment or confirmation embody the entire agreement between AVERY DENNISON and PURCHASER concerning the subjects herein, are intended as a complete and exclusive statement of the terms and conditions of agreement regarding the Products and the sale of Products set forth on AVERY DENNISON’s order acknowledgment or confirmation, and supersede any prior or collateral written or oral agreement, negotiations, or understandings between the parties relating to the subject matters hereof. PURCHASER acknowledges that AVERY DENNISON has not made any representation to PURCHASER other than those which are specifically referred to or contained herein or the applicable Product Data Sheet. Confirmation or acceptance of PURCHASER’s order does not constitute acceptance of PURCHASER’s terms and conditions.
AVERY DENNISON CORPORATION
8080 Norton Parkway
Mentor, Ohio 44060