AVERY DENNISON MEDICAL LIMITED – TERMS AND CONDITIONS OF SALE
1. INTRODUCTION: Thank you for choosing Avery Dennison Medical Limited (“AVERY DENNISON MEDICAL”, “us” or “our”) and our products (“Products”). AVERY DENNISON MEDICAL is a private limited company registered in Ireland (company registration number: 388266) and having its registered address at IDA Business Park, Ballinalee Road, Co. Longford. These Terms and Conditions of Sale (“Terms”) (together with the terms of AVERY DENNISON MEDICAL’s Sales Order Confirmation and Invoice) set out the terms and conditions on which AVERY DENNISON MEDICAL will supply to any PURCHASER the Products listed on AVERY DENNISON MEDICAL’s website and in product catalogs. By ordering any of our Products, you agree (on behalf of yourself or the entity that you represent) to be bound by these Terms (together with the terms of AVERY DENNISON MEDICAL’s Sales Order Confirmation and Invoice). Please read these carefully before submitting an order to AVERY DENNISON MEDICAL. If you do not agree with any portion of our Terms, you must not order any Products.
2. PRICE AND PAYMENT: All prices, unless stated otherwise herein, are EXW (Incoterms® 2010) AVERY DENNISON MEDICAL's plant, Longford, Ireland and are exclusive of any present or future government, 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 DENNISON MEDICAL with a valid exemption certificate acceptable to AVERY DENNISON MEDICAL and the appropriate taxing authorities. All prices shall be in Euro unless otherwise agreed. All prices are subject to change without prior notice; however, prices shall be those contained in the appropriate AVERY DENNISON MEDICAL Price List covering the Products ordered and in effect on the “Ship Date” noted on the face of AVERY DENNISON MEDICAL’s Sales Order Confirmation. Orders calling for future delivery shall be billed at prices in effect on the shipping date. Shipments that 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 each order / invoice shall be payable in full within thirty calendar days following the date of invoice and time is of the essence in respect of payment. Amounts not paid within thirty calendar 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 in 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 MEDICAL to forbear or otherwise defer collection of such amounts when due. To the contrary, AVERY DENNISON MEDICAL expects payment on or before the due date of each invoice and reserves all rights and remedies 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 MEDICAL 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 MEDICAL’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 MEDICAL and PURCHASER that this provision for late payment charges shall constitute a valid, binding and enforceable agreement for the payment of liquidated damages. If in AVERY DENNISON MEDICAL’s opinion PURCHASER’s financial condition does not justify continuance of production or shipment on the terms of payment specified, AVERY DENNISON MEDICAL may require payments in advance. Failure of PURCHASER to pay a AVERY DENNISON MEDICAL invoice by its due date makes all subsequent invoices immediately due and payable irrespective of terms and AVERY DENNISON MEDICAL may withhold subsequent deliveries until full account is settled.
3. ACCEPTANCE: An order once placed with and accepted by AVERY DENNISON MEDICAL in its sole discretion (all orders are subject to acceptance by AVERY DENNISON MEDICAL) may be cancelled only with AVERY DENNISON MEDICAL’s consent and upon terms that will indemnify AVERY DENNISON MEDICAL against loss.
4. TITLE AND RISK OF LOSS: Title to and risk of loss of all Products purchased shall pass to PURCHASER upon collection at Longford, Ireland, regardless of the freight terms stated or method of payment of transportation charges.
5. SHIPMENT AND TRANSPORTATION CHARGES: AVERY DENNISON MEDICAL reserves the right to specify routing of shipments. AVERY DENNISON MEDICAL shall attempt to ship within the time specified in AVERY DENNISON MEDICAL’s Sales Order Confirmation, if indicated and if not then within a reasonable time of acceptance of the PURCHASER’s order; and PURCHASER acknowledges that no claim may be made for delays in shipment where PURCHASER accepts the Products. Unless specified in AVERY DENNISON MEDICAL’s Sales Order Confirmation, freight charges shall be prepaid and billed by PURCHASER.
6. COMPLIANCE: AVERY DENNISON MEDICAL’s Products are manufactured in compliance with all applicable requirements of the National Minimum Wage Act 2000, the Organisation of Working Time Act 1997 and the Protection of Young Persons (Employment) Act 1996, as amended or replaced from time to time. Except as otherwise agreed in writing, normal tolerances in specifications of the Products shall not be cause to reject Products.
7. RETURNS: Products sold by AVERY DENNISON MEDICAL are returnable only in accordance with the warranty provisions hereof. Before returning any product, PURCHASER must obtain AVERY DENNISON MEDICAL’s written material return authorisation and instructions.
8. LIMITED WARRANTY: All statements, technical information and recommendations concerning Products sold or samples provided by AVERY DENNISON MEDICAL are based upon tests believed to be reliable but do not constitute a guarantee or warranty and are provided as information only and therefore AVERY DENNISON MEDICAL does not accept any responsibility or liability for any loss, damage or expense incurred upon reliance of such statements, technical information, recommendations and/or samples or the taking of any steps as a result. 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 MEDICAL 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 MEDICAL shall, upon notification thereof and substantiation that the Products have been stored and applied in accordance with AVERY DENNISON MEDICAL’s standards, correct such defects by suitable repair or replacement without charge at AVERY DENNISON MEDICAL’s plant or at the location of the Products (at AVERY DENNISON MEDICAL’s election); provided, however, if AVERY DENNISON MEDICAL determines that repair or replacement is not commercially practical, AVERY DENNISON MEDICAL shall issue a credit in favour 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, AS DESCRIBED, MATCH ANY SAMPLE SHOWN, QUIET ENJOYMENT, USE OF REASONABLE CARE AND SKILL AND/OR NON-INFRINGEMENT. NO WAIVER, ALTERATION, ADDITIONAL OR MODIFICATION OF THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND MANUALLY SIGNED BY AN OFFICER OF AVERY DENNISON MEDICAL. *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.
9. TERMINATION: Without prejudice to AVERY DENNISON MEDICAL’s rights or remedies, AVERY DENNISON MEDICAL may terminate any order or contract for sale with immediate effect by giving notice to the Purchaser, if:
a. the Purchaser is or becomes insolvent or unable to pay its debts within the meaning of section 570 of the Companies Act 2014, as amended or replaced from time to time, or suspends or threatens to suspend making payments with respect to all or any class of bad debts;
b. an order has been made, petition presented, resolution passed or meeting convened for the winding up of the PURCHASER or the appointment of an examiner to the PURCHASER;
c. a liquidator, receiver or examiner has been appointed over the whole or any part of the property, assets, or undertaking of the PURCHASER;
d. an encumbrancer takes possession of, or a liquidator or receiver or similar office is appointed in respect of all or any part of the business or assets of the PURCHASER; or
e. anything analogous to any of the events described in Clauses 9 (a) to (d) (inclusive).
10. LIMITATION OF LIABILITY: Nothing in these Terms excludes or limits AVERY DENNISON MEDICAL’s liability for any liability which cannot be legally limited or excluded.
AVERY DENNISON MEDICAL’s (or its Affiliates, where relevant) total aggregate liability to Purchaser under or in connection with the manufacture, sale, delivery, resale, installation or use of any products, whether arising out of breach of contract, tort (including negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, shall not exceed the purchase price of the Products upon which liability is based and in no event shall AVERY DENNISON MEDICAL (or its Affiliates) be liable to the PURCHASER or any third party for:
any special, indirect, incidental or consequential damages or pure economic loss, costs damages or expenses;
loss of profit;
loss of use or production;
loss of capital; or
loss of business opportunity or investment.
11. ASSIGNMENT: Any assignment of these Terms, any order, Sales Order Confirmation, or invoice, or of any rights or obligations hereunder or hypothecation thereof in any manner, in whole or in part, without the prior written consent of AVERY DENNISON MEDICAL shall be void.
12. NON-WAIVER: Failure by AVERY DENNISON MEDICAL 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 MEDICAL 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 these Terms operate as a waiver of any of the terms hereof.
13. FORCE MAJEURE: AVERY DENNISON MEDICAL 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 MEDICAL or its suppliers’ products or marketing activities or any other cause or contingency beyond AVERY DENNISON MEDICAL’s control (“Force Majeure Event”).
14. CHOICE OF LAW: These Terms (and all non-contractual obligations arising from or connected with these Terms) shall be governed by and construed in accordance with the laws of Ireland. Any dispute arising out of or in connection with these Terms shall be submitted to the exclusive jurisdiction of the Courts of Ireland.
15. STANDARD TERMS: These Terms (and the terms of AVERY DENNISON MEDICAL’s Sales Order Confirmation and Invoice) are the only terms on which AVERY DENNISON MEDICAL will supply the Products to PURCHASER. These Terms (and the terms of AVERY DENNISON MEDICAL’s Sales Order Confirmation and Invoice) apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any purchase order, confirmation of order or similar document and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
16. INTELLECTUAL PROPERTY: Purchaser shall indemnify and keep indemnified AVERY DENNISON against all claims, liabilities, costs, damages and expenses incurred by or for which AVERY DENNISON may become liable as a direct or indirect result of
a. Carrying out of any work required to be done on or to the Products in accordance with the requirements or specifications of Purchaser involving any infringement or alleged infringement of any intellectual or industrial property rights vested in any third party.
b. Any person other than AVERY DENNISON (or withAVERY DENNISON 's express consent in writing) using the Products or carrying out any amendments, alterations or other work on the Products involving any infringement or alleged infringement of any intellectual or industrial property rights vested in any third party.
Notwithstanding the foregoing, if at any time any allegation of infringement of (letters) patent, copyright, trademark or design rights is made in respect of the Products or if in AVERY DENNISON's reasonable opinion such an allegation is likely to be made, AVERY DENNISON may at its discretion and at its own expense:
a. Modify or replace the Products without detracting from the overall performance thereof, so as to avoid the infringement; or
b. Procure for Purchaser the right to continue to use the Products; or
c. Repurchase the Products at the price paid by Purchaser less depreciation at such rate as is applied by AVERY DENNISON to its own inventories.
d. Purchaser shall notify AVERY DENNISON forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. AVERY DENNISON shall have control over and shall conduct any such proceedings in such manner as it shall determine. Purchaser shall provide all such reasonable assistance as Seller may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine rights with respect to AVERY DENNISON's intellectual property rights, including but not limited to copyrights, trademark rights, model rights and patent rights. Purchaser shall not disclose any information with respect to the Products and developments concerning future Products and/or new manufacturing processes to third parties.
17. ENTIRE AGREEMENT: These Terms (and the terms of AVERY DENNISON MEDICAL’s Sales Order Confirmation and Invoice) embody the entire agreement and understanding between parties, are intended as a complete and exclusive statement of the terms of agreement regarding Products set forth, and supersede any prior or collateral agreement or understanding between the parties relating to the subject matter hereof. PURCHASER acknowledges that AVERY DENNISON MEDICAL has not made any representation to PURCHASER other than those that 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 to the maximum possible extent.
18. PRECEDENCE: In the event of any conflict and/or inconsistency between the provisions in these Terms, the Sales Order Confirmation and Invoice, the Terms shall take precedence and shall prevail.