1. PRICE AND PAYMENT All prices, unless stated otherwise herein, are F.O.B. shipping point and are exclusive of any present or future federal, state, local or other taxes applicable to the sale of products listed herein. Any such taxes shall be added to the price and paid by PURCHASER unless PURCHASER provides Avery International Corporation (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 Sales Order. Orders calling for future delivery shall be billed at prices in effect on the shipping date. Shipments which are +/- 10% of the actual quantity ordered shall constitute filling the order; and PURCHASER shall be billed only for the quantity actually shipped plus, if applicable, trim loss. The net amount of invoice shall be payable in full within thirty days following the date of invoice. A one percent discount is available if payment is received within ten days of date of invoice. Amounts not paid within thirty days of date of invoice will be subject to a late payment charge of 1.0% per month on the unpaid balance to be included on each month’s invoice until paid. The imposition of such charge is not intended to infer and consent, acquiescence or other agreement, expressed or implied, on the part of AVERY DENNISON to forbear or otherwise defer collection of such amounts when due. To the contrary, AVERY DENNISON expects payment on or before the due date of each invoice and intends to take all necessary and feasible action to enforce prompt payment. 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 surcharge is reasonable in amount. It is expressly intended by AVERY DENNISON and PURCHASER that this provision for late payment charges shall constitute a valid, binding and enforceable agreement for the payment of liquidated damages pursuant to Section 1671 (b) of the California Civil Code and Section 2718 (1) of the California Commercial Code. If in AVERY DENNISON’S opinion PURCHASER’s financial condition does not justify continuance of production or shipment on the terms of payment specified, AVERY DENNISON may require payments in advance. Failure of PURCHASER to pay and AVERY DENNISON invoice by its due date makes all subsequent invoices immediately due and payable irrespective of terms and AVERY DENNISON may withhold subsequent deliveries until the full account is settled.
An order once placed with and accepted by AVERY DENNISON (all orders are subject to acceptance by AVERY DENNISON’s home office) may be cancelled only with AVERY DENNISON’s consent and upon terms that will indemnify AVERY DENNISON against loss.
3. TITLE AND RISK OF LOSS
Title and risk of loss to all products purchased shall pass to PURCHASER upon delivery by AVERY DENNISON to a common carrier, regardless of the freight terms stated or method of payment of transportation charges.
4. SHIPMENT AND TRANSPORTATION CHARGES
AVERY DENNISON reserves the right to specify routing of shipments. AVERY DENNISON shall attempt to ship within the time specified in AVERY DENNISON’s Sales Order, if indicated and if not then within a reasonable time; and PURCHASER acknowledges that no claim may be made for delays in shipment where PURCHASER accepts the products. Unless specified in AVERY DENNISON’s Sales Order, freight charges shall be prepaid and billed.
AVERY DENNISON products are manufactured in compliance with all applicable requirements of the Fair Labor Standards Act, as amended. Except as otherwise agreed in writing normal tolerances in specifications shall not be cause to reject products.
Products sold by AVERY DENNISON are returnable only in accordance with the warranty provisions hereof. Before returning any product, PURCHASER must obtain AVERY DENNISON’s written material return authorization and instructions.
7. LIMITED WARRANTY
All statements, technical information and recommendations concerning products sold or samples provided by AVERY DENNISON are based upon tests believed to be reliable but do not constitute a guarantee or warranty. All products are sold and samples of products provided with the understanding that PURCHASER has independently determined the suitability of such products for its purposes. AVERY DENNISON warrants the products to be free from defects in material and workmanship. Should any failure to conform to this warranty appear within one year* after the initial date of shipment, AVERY DENNISON shall, upon notification thereof and substantiation that the products have been stored and applied in accordance with AVERY DENNISON’s standards, correct such defects by suitable repair or replacement without charge at AVERY DENNISON’s plant or at the location of the products (at AVERY DENNISON’s election); provided, however, if AVERY DENNISON determines that repair or replacement is not commercially practical, AVERY DENNISON shall not commercially practical, AVERY DENNISON shall issue a credit in favor of PURCHASER in an amount not to exceed the purchase price of the products.
THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND/OR NON-INFRINGEMENT. NO REPRESENTATIVE OR AGENT OF AVERY DENNISON IS AUTHORIZED TO GIVE ANY GUARANTEE OR WARRANTY OR MAKE ANY REPRESENTATION CONTRARY TO THE ABOVE. NO WAIVER, ALTERATION, ADDITIONS OR MODIFICATIONS OF THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND MANUALLY SIGNED BY AN OFFICER OF AVERY DENNISON. *Or the time period stated on the specific product specification sheet, if any, and if not then on the specific information literature in effect at time of shipment.
8. LIMITATION OF LIABILITY
In no event shall AVERY DENNISON be liable for any incidental or consequential damages, including but not limited to, loss of profit, loss of use or production or loss of capital. The remedies of PURCHASER set forth herein are exclusive and the total liability of AVERY DENNISON with respect to any contract, or anything done in connection therewith such as the performance or breach hereof, or from the manufacture, sale, delivery, resale, installation or use of any products whether arising out of contract, negligence, strict tort, or under any warranty, or otherwise shall not exceed the purchase price of the products upon which liability is based.
Any assignment of this agreement or of any rights hereunder or hypothecation thereof in any manner, in whole or in part, without the prior written consent of AVERY DENNISON shall be void.
Failure by AVERY DENNISON to insist upon strict performance of any of the terms or conditions hereof, failure or delay to exercise any rights or remedies provided herein or by law or to properly notify PURCHASER in the event of breach, or the acceptance of payment for any products hereunder, shall not be deemed a waiver of any right of AVERY DENNISON to insist upon strict performance hereof or any of its rights or remedies or as to any prior to subsequent default hereunder, nor shall any termination of this agreement operate as a waiver of any of the terms hereof.
11. FORCE MAJEURE
AVERY DENNISON shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by accident, fire, strike, riot, civil commotion, insurrection, war, the elements, embargo, failure of carrier, inability to obtain transportation facilities, 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 control.
12. CHOICE OF LAW
This agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
13. ENTIRE AGREEMENT
These terms and conditions embody the entire agreement and understanding between the parties, are intended as a complete and exclusive statement of the terms of agreement regarding the products set forth on AVERY DENNISON’s Sales Order between the parties, and supersede any prior or collateral agreement or understanding between the parties relating to the subject matter hereof. PURCHASER acknowledges that AVERY DENNISON has not made any representation to PURCHASER other than those, which are specifically referred to or contained herein. Each paragraph and provision hereof is severable and if any provision is held invalid or unenforceable, the remaining provisions shall nevertheless remain in full force and effect.