CONDITIONS OF SALE
1.1 "Seller" means the designated Sales Office of Avery Dennison selling the Products to the "Purchaser".
1.2 "Purchaser" means the customer of Seller. Jointly referred to as "Parties" or individually as the "Party".
1.3 “Sales Office" means the legal entity selling the Products to the "Purchaser".
1.4 "Conditions" means these general terms and conditions of sale of Avery Dennison.
1.5 "Products" means for the purpose of these Conditions, goods, all parts, components and services sold by Seller to Purchaser.
1.6 The Conditions exclusively govern all sales of Products from Seller to Purchaser. Any deviation on the Conditions are deemed to be void and nil, unless timely and explicitly agreed between Parties in writing and signed by Parties authorized representatives.
1.7 An order placed by Purchaser with Seller shall be deemed to constitute unconditional acceptance of the Conditions.
1.8 Subject to clause 1.6 above, the Conditions shall form an integral part of any sales related agreement between Seller and Purchaser.
1.9 Subject to clause 1.6 above, deviations from these Conditions suggested by Purchaser and accepted by Seller shall always be implemented for the risk and the account of Purchaser and any and all cost of such deviations shall be borne by Purchaser.
2 Products and Samples
2.1 All statements, technical information and recommendations concerning the Products sold or samples provided by Seller are based upon tests believed to be reliable, but do not constitute a guarantee or warranty. Parties herewith acknowledge all Products are sold and/or samples provided on the basis that it is the sole responsibility of Purchaser to independently determine, prior to use, that Products are suitable for the purposes of Purchaser.
2.2 Samples supplied to Purchaser are supplied for information purposes only and do not constitute any expressed and/or implied guarantee and/or warranty to conformity, quality, description, fitness for purpose or merchantable quality. Purchaser shall be deemed to have satisfied itself as to such matters prior to ordering the Products.
3.1 Delivery is subject to the International Commercial Terms ("INCO-Terms") of the International Chamber of Commerce (ICC)which are in force at the relevant dispatch date. Unless a specific other INCO-term and destination is agreed, deliveries with a final destination within the European Union ("EU") are based on Delivery Duty Unpaid ("DDU") to final EU destination. Deliveries with a final destination outside the EU (exports) are based on EX-Works Avery Dennison designated sites, or if so explicitly agreed otherwise Free Carrier ("FCA") to agreed EU border destination. Deviations are subject to clause 1.6 above.
3.2 Targeted delivery dates mentioned in any quotation or order acceptance form or other media are approximations only and do not represent any binding obligation of Seller towards Purchaser.
4.1 Seller shall be deemed to have fulfilled its obligations with respect to any delivery of Products of a particular quantity and size, even if latter quantity or size vary from specified quantity and size in any sales related agreement between Seller and Purchaser. Variations need to be reasonable in accordance with clauses 4.2 and 4.3 below.
4.2 The variations of Products shall not exceed the following limits:
- Up to 20,000 square meters - plus or minus 10%
- 20,000 - 50,000 square meters - plus or minus 7,5 %
- Over 50,000 square meters - plus or minus 5%
- Standard (master reel or slit) - plus or minus one millimeter;
- Top and back splitting - plus or minus two millimeters;
- Adhesive pattern coating - plus or minus two millimeters.
- Not guillotine trimmed or precision cut - plus or minus two millimeters;
- Guillotine trimmed or precision cut - plus or minus one millimeter.
4.3 Slight deviations in quality, symmetry, format, color, hardness and satin finish shall not constitute grounds for rejection of the Products. When assessing whether a delivery differs beyond the admissible limits, an average must be taken from the delivery, so that rejection cannot take place on the basis of a small number of specimens.
5 Packaging Charges
5.1 The Products shall be packed and labeled as per the standard requirements for the transport mode. Any charges applicable for packaging will be made at Seller's rates current at the time of dispatch. Orders requiring overseas delivery may be debited with the cost of any special packaging required together with all freight, insurance and other charges incurred by Seller.
5.2 Seller might use returnable (rotables) pallets owned by Seller, which will always remain the property of Seller, and shall be returned or collected in accordance with the instructions of Seller.
6.1 A quotation by Seller does not constitute a fixed offer. Seller explicitly reserves the right to withdraw or amend the same at any time prior to Seller's confirmation of an order by the Purchaser.
6.2 Where Seller makes an offer, Seller may, unless stated otherwise in writing, revoke the offer until ten (10) days have elapsed following the day on which Seller received Purchaser's acceptance of that offer.
6.3 If Purchaser supplies data, drawings, volumes etc. To Seller, Seller will assume them to be accurate and complete and may base Seller's offer upon them.
7.1 All prices are excluding VAT and other taxes, duties and/or charges, unless explicitly otherwise agreed upon in writing. Said taxes, duties and/or charges shall be for the account of Purchaser.
7.2 If Seller uses list prices for the Products sold, the prices payable for the Products shall be Seller's list prices valid at the time of dispatch.
7.3 Seller shall have the right at any time to revise list and/or agreed upon prices to take account of inflation and increases in costs, including but not limited to costs of acquisition of any Products or materials, carriage, labor or other overheads, the increase or imposition of any tax, duty and/or other levy and/or any variation in exchange rates.
8 Terms of Payment
8.1 Subject to clause 1.6 above, payment of invoices shall be (i) in the invoiced currency, (ii) into the bank account specified on the invoice and (iii) within thirty (30) days from the date of invoice without any setoff or discount being applied.
8.2 Seller shall at all times have the right to demand advance payment or cash payment upon delivery of the Products or to demand security to be provided in a form approved by Seller's authorized representative to ensure that the purchase price of the Products is paid.
8.3 If Purchaser does not comply with its obligations under these Conditions, including but not limited to the payment of the purchase price, it shall promptly be deemed to be legally in default, without any notice and without legal action being required. In that case: (i) Seller shall be entitled to suspend its obligations under these Conditions including but not limited to suspending the provision of Products without relieving Purchaser from its obligations and (ii) all amounts and interests payable by Purchaser shall become immediately due to Seller.
8.4 Any extension of credit allowed to Purchaser may be changed or withdrawn at any time.
8.5 In the event of late payment by Purchaser, Seller has the right to charge an interest of one and a half per cent (1, 5 %) per month or, if higher, the statutory interest under the laws of the country of residence of Purchaser over the outstanding amount; part of a month will be deemed to be a month. All costs, judicial and extra-judicial, incurred by Seller with respect to the breach of any obligation on the part of Purchaser are for the account of Purchaser. The extra-judicial costs will be minimum ten per cent (10%) of any outstanding amount.
8.6 Seller may always at its sole discretion and without any notice being applicable, set-off any amount and/or charge due by Purchaser with any amount payable by Seller to Purchaser.
9.1 Notwithstanding delivery and passing of the risk, and superseding the applicable INCO-term, the ownership of the Products shall be retained by Seller and shall only be transferred to Purchaser when Purchaser has fully complied with all of its obligations contained in or arising from these Conditions and any sales related agreement between Seller and Purchaser.
9.2 If Purchaser is in default in complying with any obligations arising from these Conditions and any sales related agreement between Seller and Purchaser, Seller shall have the right at all times to obtain possession of the Products in which title has been reserved, wherever they are located, without prejudice to Seller's right to compensation from Purchaser in connection with Purchaser's default.
9.3 Purchaser hereby grants an irrevocable right and license to Seller and its servants and agents to enter upon all or any of Purchaser's premises with or without vehicles during normal business hours for the purpose of inspecting and/or taking back Products to which it has retained title. This right and license shall continue to subsist notwithstanding the termination for any reason of any sale under these Conditions and any other sales related agreement between Seller and Purchaser.
9.4 Seller reserves the right to take back and resell any Products to which it has retained title and Seller's consent to Purchaser keeping of the Products and any right Purchaser may have to keep the Products shall in any event cease:
a) If any sum owed by Purchaser to Seller (whether in respect of the Products or otherwise) is not paid to Seller in accordance with clause 8 above.
b) Upon the happening of any of the events set out in clause 16 below ; or
c) If Purchaser commits a breach of any agreement with Seller.
9.5 Whilst Purchaser keeps the Products with Seller's consent (but not otherwise) Purchaser may in the ordinary course of its business sell or hire the Products provided that:
a) As between Purchaser and its sub-purchaser or customer Purchaser shall sell or hire the Products as principal and Purchaser shall not and shall not be empowered to commit Seller to any contractual relationship with, or liability to the sub-purchaser or customer or any other person;
b) Notwithstanding any agreed period of credit for payment of the price of the Products Purchaser shall pay the proceeds of such sales or hiring to Seller forthwith upon receipt.
9.6 Purchaser agrees immediately upon being so requested by Seller to assign or pledge to Seller all rights and claims which Purchaser may have against its sub-purchasers or customers arising from such sales until payment is made in full as stated above.
10 Intellectual Property
10.1 Purchaser shall indemnify and keep indemnified Seller against all claims, liabilities, costs, damages and expenses incurred by or for which Seller 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 Seller (or with Seller'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.
10.2 SELLER SHALL HAVE NO LIABILITY TO PURCHASER IN THE EVENT OF PRODUCTS INFRINGING OR BEING ALLEGED TO INFRINGE THE RIGHTS OF ANY THIRD PARTY.
10.3 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 Seller's reasonable opinion such an allegation is likely to be made, Seller 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 Seller to its own inventories.
d) Purchaser shall notify Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. Seller 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
10.4 This sale and/or any to the sales related agreement shall not, in any way whatsoever, grant Purchaser rights with respect to Seller'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.
11.1 Seller warrants for the period stated in clause 11.2 below, the Products to be free from defects in materials and workmanship under normal use and handling. Seller gives no other guarantees with respect to the Products, neither express nor implied. Purchaser shall be liable for any and all claims made by third parties.
11.2 Period of warranty is either the time period as stated on the specific product data-sheet and/or information-literature in effect at the time of shipment. If no such statement is available in the data-sheet and/or information-literature the warranty period is one (1) year from the initial date of shipment.
11.3 Seller shall not be liable for defects in the Products caused by normal wear and tear. This warranty may be asserted by Purchaser only and not by Purchaser's customers or users of Purchaser's goods.
11.4 This warranty shall not apply to Products which, Seller determines, have, whether by Purchaser or any other third party, been subjected to operating and/or environmental conditions which are not in conformity with the applicable specifications, or otherwise have been subject to misuse, neglect, improper installation or damage or abnormal or unsuitable conditions of storage or which have been in any way altered, modified or otherwise interfered with by any person other than Seller's own authorized personnel. Purchaser is obliged to disclose all requested information in order to allow Seller make such determination.
11.5 No warranty whatsoever is applicable if Products are being used outside the period as per clause 11.2. In the event of complaints or claims by Purchaser, Purchaser has always the obligation to demonstrate correct and timely use as per Seller's instructions, guidelines and recommendations.
11.6 When defects of a part of the delivered Products occur, Seller has the right to inspect and remedy the alleged defects. Purchaser shall grant Seller a reasonable grace period in which Seller may remedy the defect product.
11.7 Complaints in respect of visual defects to the Products shall be reported to Seller within 48 hours after delivery. Purchaser shall note the defects on the relevant transport documents and shall keep the defective Products as proof. Only if Seller so requests, Purchaser shall return the defective Products to Seller in their original packaging. If and to the extent that Seller's claim handling department is of the opinion that Purchaser's complaints are justified, Seller shall at its discretion replace or repair the Products. Seller shall not be liable for any loss and/or visual defects of the Products in transit nor for failure of the delivered Products nor visual shortfall outside the permitted shortfall of clause 4 above if Purchaser has not given notice within 21 days after scheduled and/or realized delivery date. As then the Products shall be deemed to have been delivered in good order and condition. Immediately upon delivery, Purchaser's quality controller shall inspect the Products for quality and quantity. The check shall be based on transport documents, Seller's samples and/or specifications applicable to the Products.
11.8 Complaints in respect and related to non-visual defects to the Products which occur at a later stage need to be reported Seller immediately after occurrence. Purchaser shall give immediate notice of such complaint to the claim handling department of Seller.
11.9 Any cause of action for product defects or otherwise which Purchaser may have shall be barred after the lapse of the period referred to in clause 11.2 above.
11.10 Should any failure to conform to Seller's warranty appear within the period referred to in clause 11.2 above Seller's sole obligation hereunder shall be limited to, at the Seller's option, either crediting, in whole or in part, the Purchaser with the purchase price of the affected Products, or replacing the affected Products or any affected part or parts thereof provided that each of the following three conditions are fulfilled:
(i) written notice of non-conformance hereunder is received by the Seller not more than 15 days after the defect in question has come to the attention of the Purchaser or ought reasonably to have come to its attention,
(ii)after the Seller's written authorization, the Products in question are returned to the Seller's shipping location freight charges prepaid and
(iii)after examination the Products in question are disclosed to the Seller's satisfaction to be non-conforming. Any such replacement shall not extend the period within which such warranty can be asserted.
11.11 Without prejudice to any other clauses, Seller's sole obligation with respect to any imputable non-conformity of the Products delivered for other reasons than defects in materials or workmanship, shall be limited to, at the Seller's option, either crediting in whole or in part the Purchaser with the purchase price of, or replacing, the Products or any part or parts thereof, provided that the non-conformity is notified in writing to Seller within six (6) months after the initial date of shipment and the conditions (i), (ii) and (iii) referred to in clause 11.10 above are fulfilled.
12.1 SELLER'S AGGREGATE LIABILITY TO PURCHASER WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL IN NO CIRCUMSTANCE EXCEED THE COST OF THE DEFECTIVE, NON-CONFORMING, DAMAGED OR UNDELIVERED PRODUCTS WHICH GIVE RISE TO SUCH LIABILITY AS DETERMINED BY NET PRICE INVOICES TO PURCHASER IN RESPECT OF ANY OCCURRENCE OR SERIES OF OCCURRENCES.
12.2 Subject to the foregoing all conditions, warranties, and representations including (but not by way of limitation) any warranty against patent infringement, express or implied by statute law or otherwise in relation to the Products supplied provided are excluded. Furthermore, Seller shall be under no liability to Purchaser for any loss or damage resulting from defective material, faulty workmanship or otherwise howsoever arising out of the sale and/or sales related agreement and whether or not caused by the negligence of Seller, its servants or agents, save that Seller shall accept liability for death or personal injury caused by the negligence of Seller.
12.3 In no circumstances will Seller be liable to Purchaser for any direct or indirect incidental or consequential loss, damage or injury and including without limitation loss of anticipated profits, goodwill, reputation, business receipt or contract or losses or expense resulting from third party claims.
13 Rescission of Contract
Unless and to the extent that performance of the sale and/or any sales related agreements is permanently impossible, Purchaser may only rescind the sale and/or any sales agreement on the ground of a failure to perform the sale and/or sales related agreement by Seller if Seller also fails to perform the sale and/or any sales agreement in accordance with these Conditions within an additional, reasonable term of which Purchaser has given Seller written notice pursuant to clause 19 below. Rescission of the sale and/or any sales related agreement is only allowed to the extent that the sale and/or any sales related agreement has not been performed in accordance with these Conditions and that Purchaser cannot reasonably be expected to maintain the sale and/or any sales agreement in question.
14 Force Majeure
Neither Party shall be liable for its failure to perform any of its obligations hereunder during any period in which such performance is delayed or made impossible by force majeure included but not limited to fire, flood, war, embargo, riot, labor unrest (including but not limited to strike, go-slow, work to rule), or the intervention of any governmental authority, provided that the Party who cannot perform as a result of such force majeure notifies the other Party of the delay and the reasons thereof.
If (i) the force majeure continues for a cumulative period of thirty (30) days, and (ii) the situation of force majeure causes serious damage to the Party whose rights are affected by the force majeure, such Party may terminate the sale and/or to the sale related agreement by sending a written termination notice pursuant to clause 19 below to the Party who cannot perform as a result of force majeure. The Party so terminating the sale and/or any sales agreement between Parties, shall not be liable to the other Party for any damages suffered by such party as a result of the termination.
Purchaser pledges it shall not disclose to any third party confidential information received from Seller in connection to the sale and/or sales related agreement and that Purchaser will use this information exclusively in fulfilling its obligations and commitments towards Seller, except as required by law or with written approval of Seller.
16.1 If a petition for bankruptcy is filed against either Party, or if a trustee is appointed for either Party's business or either Party makes a general assignment for the benefit of creditors, or in case of any type of in or out of Court insolvency proceedings, be it voluntary or involuntary, or due to actions of third parties, including but not limited to the attachment of properties, or any other analogous proceeding is instituted in any jurisdiction, whereby the day to day operations of a Party are disturbed in such a manner that its compliance with the terms and conditions of the sale and/or any sales related agreement is thwarted, the other Party shall have the right to terminate the sale and/or sales related agreement with immediate effect by written notice pursuant to clause 19 below.
16.2 Upon termination of any sale and/or sales related agreement pursuant to clause16.1 above any indebtedness of Purchaser to Seller shall become immediately due and payable and Seller shall be relieved of any further obligation to supply any Products to Purchaser pursuant to such sale and/or sales related agreements.
The failure on the part of Seller to exercise or enforce any rights conferred by the Conditions and/or sales and/or sales related agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
None of the rights or obligations of Purchaser under the sale and/or sales related agreement may be assigned or transferred in whole or in part without the prior written consent of Seller.
Notice required or permitted to be given hereunder shall be in writing by the person qualified as agreed and shall be deemed to have been duly given if sent by registered post, courier service, facsimile and e-mail.
Headings to any of these clauses are included to facilitate reference only and shall not affect the construction hereof.
21 Governing Law, competent court
Any non-contractual obligations and sale and/or sales related agreement for deliveries with a final destination outside the EU (exports) between Seller and Purchaser shall be governed by and construed and interpreted in accordance with the laws of the country of residence of Seller .Sale and/or sales related agreements between Seller and Purchaser within the EU shall be governed by and construed and interpreted in accordance with the laws of the country were the Products are delivered within the EU. The provisions of the United Nations Convention on Contracts for the International Sale of Products ("the Vienna Convention") shall not apply.
21.1 Purchaser shall adhere to the relevant European Union and U.S.A. Laws and Regulations on export and shall not export or re-export any of Seller's and/or its affiliates' technical data or Products purchased or received under any agreement or the direct product of such technical data to any country to which export or re-export is forbidden by the European Union and/or U.S.A. unless properly authorized in writing by Seller.
21.2 Purchaser will comply with the provisions of the "Foreign Corrupt Practices Act" ("FCPA") of the United States of America and the OECD Convention on Combating Bribery of Foreign Public Officials ("OECD").
21.3 Any disputes arising out of or in connection with the sale and/or sale related agreement shall be brought before the competent courts of the country which law is applicable in accordance to clause 21.1 Above. Notwithstanding the foregoing sentence, Seller, at its discretion, may opt to bring any such dispute before or file any claim at the competent courts of the country of Purchaser's residence under the laws applicable to that country.
22 Governing language
These Conditions are written and governed by the English language version. Any other language version of these Conditions is for convenience and translation purposes only.