Avery Dennison

W.F. TAYLOR LLC

TERMS AND CONDITIONS OF SALE

1.  Applicability

These Standard Terms and Conditions of Sale ("Terms and Conditions") shall apply to all sales and contracts for sale of adhesive products or other chemical products ("Products") by and between W.F. Taylor LLC ("Seller"), and any customer ("Customer"). All sales and contracts for sale of Products are conditional on Customer's assent and agreement to these Terms and Conditions and Seller's order confirmation form issued to Customer (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 Customer that is conflicting, inconsistent or additional to this Agreement. All orders submitted by Customer are subject to acceptance confirmation by Seller's home office representatives. After an order is confirmed, the order cannot be cancelled by the Customer except upon terms that will fully compensate the Seller.

2.  Price

All prices are subject to the delivery terms set forth herein. Seller has the right to revise any price previously quoted, without notice to Customer 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. 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 Customer unless Customer provides Seller with a valid exemption certificate acceptable to Seller and the appropriate taxing authority.

3.  Payment Terms

Unless otherwise agreed to in writing, invoices shall be paid in full within 30 days following the date of invoice, net cash. Time is of the essence for payment. No deductions, withholdings, or any set-offs by Customer 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, Customer 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, Customer warrants that it is not insolvent. If in Seller's sole discretion Customer's financial condition does not justify continuance of production or shipment on the price or payment terms stated herein, Seller may without notice to Customer hold or cease shipments, alter or revoke payment or credit terms, and/or require payments in advance or security satisfactory to Seller. Seller has the right to set-off any liability to Customer against any liability of Customer to Seller. If Seller engages an attorney to attempt collection or commence a collection action to recover unpaid invoices due and owing, Customer shall be liable for attorneys’ fees of 15% of the past due amount.

4.  Delivery

Unless otherwise agreed in writing, the goods shall be delivered to Customer assembled, completed, and ready for use, and Customer shall accept delivery of such goods or performance of any required services at the location designated on the purchase order, in accordance with Incoterms® 2020 DAP, with the named place of destination being such location. The obligation of Seller to meet the delivery or performance date is material; time is of the essence. Upon request, Seller shall give Customer advance notice of when shipments will be made. Delivery of goods or performance of any required services is not complete until the goods or services have been actually received and accepted by the Customer. For international shipments, Seller may, in its sole discretion, agree to clear goods for export, provided that all related fees will be charged to the Customer.

5.  Title and Risk of Loss

Title to the Products shipped hereunder shall pass to Customer when the Products are placed at Customer's disposal at the delivery location designated on the purchase order, in accordance with Incoterms® 2020 DAP.

6.  Nonconforming Products and Claims

Customer shall accept Seller's point of shipment weights and measurements, unless proven incorrect. Customer must accept the entire shipment as tendered, and promptly upon delivery at Customer'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 Customer to give such notice shall constitute a waiver by Customer of all claims in respect thereto. For verified claims, Seller may replace the Product or refund the purchase price, at Seller's discretion. These remedies are Customer'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 Customer, bars any claim for Nonconforming Products. Customer 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 Customer's or third party's negligence, tampering or failure of proper storage or care.

7.  Return of Conforming Products

Because of the nature of Seller's products, such products are non-returnable; however, from time to time and subject to Seller's prior written approval (in Seller's sole discretion), within thirty (30) days of purchase, Seller may permit Customer to return conforming products to Seller and receive, in Seller's sole discretion, a refund or credit in the amount of the purchase price for such products, minus a restocking fee equal to 20% of the original purchase price, provided that:

  • Such products are in original condition and have not been modified or customized by or for Customer;
  • Such products are in their original packaging; and
  • Such products are returned to Seller within thirty (30) days after Seller's written authorization of such return, freight prepaid by Customer.

8.  Cancellation of Orders by Customer for Convenience.

Customer may cancel, for its convenience, orders for products prior to shipment of such products upon the following conditions:  (i) for stock products held in inventory and distributed by Seller on a regular basis and in Seller’s ordinary course of business, Customer may cancel orders at any time up to forty-eight (48) hours prior to the scheduled shipment of such products; and (ii) for non-stock, customer products, Customer may cancel orders at any time prior to shipment provided that Customer shall be responsible, and shall reimburse Seller, for all work in process and all materials purchased by Seller and/or its suppliers for the production of such products, and Customer shall pay Seller an equitable adjustment for all other costs incurred by Seller in relation to the fulfillment by Seller of such orders.

9.  Limited Warranty

A.  Technical Services and Product Information Disclaimer

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. CUSTOMER ASSUMES FULL AND SOLE RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINING THE SUITABILITY OF PRODUCTS FOR ANY INTENDED PURPOSE.

B.  Product-Specific Warranty Certificates

Certain Products may be accompanied by a separate product-specific warranty certificate issued by Seller (a "Product Warranty Certificate"). To the extent that any Product Warranty Certificate provides warranty terms that differ from or are in addition to those set forth in this Limited Warranty section, the Product Warranty Certificate shall control with respect to the specific Product(s) covered thereby, but only to the extent of such difference. All other provisions of this Agreement, including without limitation the Disclaimer of Warranties, Warranty Exclusions, Limitation of Claims and Liability, Exculpation and Indemnity, and No Third Party Beneficiaries provisions, shall apply to all Products regardless of whether a Product Warranty Certificate has been issued, unless the Product Warranty Certificate expressly and specifically states otherwise with reference to the particular provision of this Agreement being modified. In no event shall a Product Warranty Certificate be construed to: (a) create any implied warranties beyond those expressly stated therein; (b) waive or modify the consequential damages exclusion or limitation of liability set forth in this Agreement; (c) create any rights or obligations in favor of any third party, including any subsequent purchaser or end user of the Products, unless the Product Warranty Certificate expressly so provides; or (d) expand Seller's aggregate liability beyond the remedies expressly stated in the Product Warranty Certificate, subject in all cases to the Limitation of Claims and Liability provisions herein. Any claim made under a Product Warranty Certificate shall be subject to Seller's inspection and claims procedures, and any repairs performed prior to inspection by a Seller representative shall void the Product Warranty Certificate. Product Warranty Certificates are non-transferable unless the Product Warranty Certificate expressly provides otherwise. In the event of any conflict between a Product Warranty Certificate and this Agreement that is not resolved by the foregoing, the following order of precedence shall apply: (1) a written contract manually signed by both parties; (2) the Product Warranty Certificate; and (3) this Agreement.

C.  Warranty Scope and Duration

Seller warrants that the products conform to Seller's specifications at the time of shipment. The foregoing warranties will last for twelve (12) months after the date that such products are delivered by Seller. This warranty applies solely to the original Customer of the Products and creates no rights or obligations for any third party. If during the applicable warranty period any products prove upon examination by Seller not to meet the warranties set forth above, Seller shall, at Seller's sole option and as Customer's sole and exclusive remedy:

  • Repair the defective or non-conforming products;
  • Replace the defective or non-conforming products; or
  • Provide to Customer a refund or credit in the amount of the purchase price paid by Customer for the defective or non-conforming products.

This exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to replace defective or non-conforming products in the prescribed manner. Any replacement products will be warranted for the unexpired portion of the warranty period applicable to the particular products.

D.  Traceability Requirement

Customer shall maintain traceability of Products, either in storage or in converted form, to confirm a claim is based on Seller's actual Product. Lack of traceability shall result in denial of a warranty claim in whole or in part, as determined by Seller in its sole discretion.

E.  Disclaimer of Warranties

CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO THE PRODUCTS OR THE SERVICES AND THAT THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Seller will not be responsible for transportation costs or for the costs of removal, installation, re-installation or making of access of any products or items, where such transportation, removal, installation, re-installation or making of access is required to repair or replace any defective products. Furthermore, Seller will not be responsible for and assumes no liability for materials or workmanship, labor costs or other related expenses for any work performed by third parties in the repair or replacement of defective products or the re-performance of services.

F.  No Unauthorized Representations

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. Any oral statements, technical advice, or recommendations made by Seller's employees, agents, or representatives shall not constitute warranties and shall not be relied upon by Customer.

G.  Warranty Exclusions

  • The warranties provided in these Terms and Conditions will be voided if:
  • The products have not been stored, installed, maintained or operated in accordance with accepted industrial practice, original manufacturer's instructions or any specific instructions provided by Seller;
  • The products have been subjected to any accident, misapplication, environmental contaminant, corrosion, damage, debris, abuse or misuse;
  • Customer has modified the products without Seller's prior written consent;
  • Customer has used or repaired the products after discovery of the defect without Seller's prior written consent;
  • Customer refuses to permit Seller to examine the products and operating data to determine the nature of the defect claimed; or
  • Customer is in breach of its obligations under these Terms and Conditions.

H.  Exclusive Remedies

CUSTOMER'S REMEDIES ARE SPECIFICALLY LIMITED TO THE REPAIR OR REPLACEMENT, OR REFUND OR CREDIT IN THE AMOUNT OF THE PURCHASE PRICE, OF THE PRODUCTS, AS APPLICABLE, DURING THE WARRANTY PERIOD, AND ARE EXCLUSIVE OF ALL OTHER REMEDIES. IN THE EVENT THIS EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THE LIMITATION OF CLAIMS AND LIABILITY SET FORTH IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE EXCLUSION OF CONSEQUENTIAL DAMAGES, SHALL NEVERTHELESS REMAIN LEGALLY OPERATIVE AS IF INDEPENDENT OF THE SOLE AND EXCLUSIVE REMEDY SET FORTH HEREIN. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR WARRANTY CLAIMS, INDIVIDUALLY OR IN THE AGGREGATE, BEYOND THE PURCHASE PRICE OF THE PRODUCT THAT DOES NOT MEET THIS WARRANTY.

10.  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, pandemics, epidemics, 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.

11.  Allocation Rights

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.

12.  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 Customer shall be obtained by, and be the sole responsibility of, Customer. Customer 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. Customer 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. Customer agrees to give warnings of the possible hazard to any person or persons to whom Customer resells or gives or delivers the Products or whom Customer can reasonably foresee may be exposed to their hazards.

13.  Exculpation and Indemnity

CUSTOMER 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.

CUSTOMER 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 CUSTOMER OR TO ANY OTHER PERSON OR ENTITY, ARISING OUT OF OR RELATING TO THE USE, PRESENCE OR RE-SALE OF THE PRODUCTS.

NOTWITHSTANDING THE FOREGOING, CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION SHALL NOT APPLY TO THIRD-PARTY CLAIMS THAT ARISE SOLELY AND DIRECTLY FROM A BREACH OF SELLER'S EXPRESS WARRANTY SET FORTH IN THE LIMITED WARRANTY SECTION HEREIN (I.E., PRODUCTS THAT DO NOT CONFORM TO SELLER'S SPECIFICATIONS AT THE TIME OF SHIPMENT), PROVIDED THAT: (A) CUSTOMER HAS TIMELY COMPLIED WITH ALL NOTICE AND CLAIMS PROCEDURES SET FORTH IN THE NONCONFORMING PRODUCTS AND CLAIMS SECTION; (B) CUSTOMER HAS NOT ENGAGED IN ANY CONDUCT THAT WOULD VOID THE WARRANTY UNDER THE WARRANTY EXCLUSIONS PROVISION; AND (C) THE CLAIM DOES NOT ARISE FROM OR RELATE TO CUSTOMER'S RESALE, MODIFICATION, MISUSE, IMPROPER STORAGE, INADEQUATE WARNINGS PROVIDED BY CUSTOMER, OR FAILURE TO COMPLY WITH APPLICABLE LAWS OR SELLER'S INSTRUCTIONS. THIS CARVE-OUT DOES NOT LIMIT CUSTOMER'S INDEMNIFICATION OBLIGATIONS FOR CLAIMS ARISING FROM CUSTOMER'S POST-DELIVERY CONDUCT, HANDLING, OR USE OF THE PRODUCTS.

14.  Intellectual Property

Customer 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 Customer'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.

15.  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 CUSTOMER (SUCH AS TECHNICAL SERVICES, CONSULTATIONS, AND RESPONSES TO PRODUCT INQUIRIES), NO CLAIM BY CUSTOMER OF ANY KIND, AND NO LIABILITY 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. CUSTOMER'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 OF 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.

16.  Shipping

A.  Shipping Instructions

Seller shall not be bound to tender delivery of any quantities for which Customer has not given written shipping instruction.

B.  Returnable Containers

Where shipment requires use by Seller of tanks, cylinders, drums, barrels or other returnable containers:

  • Title to such container shall remain in Seller and a deposit in the amount required by Seller may be required at the time the product is paid for to insure the return of the container to point of shipment.
  • Customer shall not permit any encumbrance, lien, or levy to be made on such containers.
  • Such containers must be kept in good condition and may not be used for any material other than that shipped therein, and must be returned upon demand of Seller.
  • Customer assumes the entire risk of loss to such containers from hazard.
  • On such containers being so returned in good condition, a refund or credit of the deposit will be made.

C.  Weights and Freight Rates

In case of bulk carload, tank truck or tank car shipments, Seller weights, certified or sworn to by a weighmaster, shall govern. Any increase in freight rates paid by Seller on shipments covered by these Terms and Conditions may, at Seller's option, be added to the price of the products shipped under these Terms and Conditions.

17.  Termination

Seller may terminate this Agreement immediately upon written notice to Customer if Customer:

  • Fails to pay any invoice when due;
  • If the Customer materially breaches any contractual obligation;
  • 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 creditors.

18.  Entire Agreement; Waiver

No waiver, alteration, addition or modification of the Agreement shall be valid unless made in writing and signed by Customer 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.

19.  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.

20.  No Assignment

This Agreement and the benefits and obligations hereunder cannot be assigned or delegated by the Customer without the express written, signed consent of the Seller, and any attempt by Customer to so assign or delegate shall be null and void from its inception.

21.  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.

22.  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 Ohio . 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 Ohio shall have exclusive jurisdiction over any dispute concerning Products, this Agreement, or any sale or contract for sale of Products.   In connection with any litigation arising from the sale of products or services by Seller to Customer, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses from the non-prevailing party.   However, if a party prevails on some, but not all, of its claims, such party shall be entitled to recover an equitable amount of such fees, costs and expenses, as determined by the applicable court commensurate with its degree of success against the non-prevailing party.