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BINDING AGREEMENT. If you order any Products using the Website, or if you pick up,
accept delivery of, pay for or use any Products that you have ordered from the Website, then you have
agreed to accept and be legally bound by these Terms & Conditions and the Website Terms of Use and Privacy
Policy. However, if you have entered into a written supply agreement that has been executed and
delivered by you and an authorized representative of Sherwin-Williams (“Supply
Agreement”), that agreement will supersede these Terms & Conditions to the extent of
any conflict with these Terms & Conditions, or the Website Terms of Use and Privacy Policy. Absent
such a Supply Agreement, these Terms & Conditions, along with the provisions, if any, contained in
the applicable Sherwin-Williams order confirmation email, and our Website Terms of Use and Privacy
Policy, constitute the final, entire and exclusive agreement between you and Sherwin-Williams concerning
the sale of Products by Sherwin-Williams to you. These Terms & Conditions, together with the Website
Terms of Use and Privacy Policy, supersede all prior oral and written agreements and understandings
(whether express or implied, including those implied by law or through usage of trade). In particular,
no course of prior dealings between the parties and no usage of trade will be relevant in determining
the meaning of this agreement. In the event of a conflict between the Terms & Conditions and the
Website Terms of Use, any express terms of these Terms & Conditions will prevail with respect to
Products (including, without limitation, sale and delivery).
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AMENDMENTS AND CHANGES. We may supplement these Terms & Conditions by posting additional terms, such as Product-specific terms and terms of
special offers, (“Additional Terms”) on the Website. In the event of a conflict between the Terms &
Conditions and applicable Additional Terms, any express terms of the Additional Terms will prevail. Any attempted
modification or amendment of these Terms & Conditions by you (whether by means of a purchase order or other form or
document), other than as part of a Supply Agreement, is hereby rejected. No waiver, alteration or modification of these
Terms & Conditions shall be binding on Sherwin-Williams unless made in writing and signed by an authorized
representative of Sherwin-Williams. These Terms & Conditions, and the Website Terms of Use and Privacy Policy, are
subject to prospective change by Sherwin-Williams, in our sole discretion, except that the Terms & Conditions, Terms
of Use and Privacy Policy posted on the Website at the time you place an order will govern the order in question. You
agree that posting of revised versions on the Website is sufficient notice of any changes. You should review the Terms
& Conditions and other Website terms, policies and notices prior to each time you purchase any Product that is
available through the Website and your use of the Website will constitute your acceptance of and agreement to the then
current version of the Terms & Conditions.
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PRODUCT ORDERS. Not all Products listed on the Website are available for purchase in all jurisdictions in which we operate our
brick-and-mortar Sherwin-Williams-branded retail stores (each, a “Retail Store”). In addition,
Sherwin-Williams cannot guaranty that Products shown on the Website as in stock are available for immediate shipping,
pick up, or delivery at or to all of our Retail Stores, or otherwise available, at all times. Applicable law in some
jurisdictions limits the quantities of some Products that you may purchase or requires that you provide proof of
identity or age in order to make a purchase. If so, such requirements are a condition of purchase and/or delivery. You
agree that your order is an offer to buy, under these Terms & Conditions, all Products that you have selected, added
to your cart, and that are listed in your online order. We reserve the right to reject any offer and our acceptance is
subject to and conditioned upon your payment in full, fulfillment of any applicable legal requirements (e.g., age
verification), your agreement to be legally bound by these Terms & Conditions, and our confirmation as set forth in
the next section. We may choose not to accept any orders in our sole discretion. We require that all purchases of
Products be made by individuals who are not minors and who can legally enter into binding contracts (typically persons
18 years of age or older, depending on where you live).
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ORDER CONFIRMATION AND CANCELLATION.
(a) Confirmation. For orders which are to be picked up in a Retail Store or delivered from a Retail Store to your home, we will send you an order confirmation e-mail after we receive your online order with your order number, a description of the Products you have ordered, the location of the Retail Store where you can pick up the Products you have ordered online, or information on your selected delivery option, if applicable. Acceptance of your order and the formation of the contract of sale between Sherwin-Williams and you will not take place until the servicing Sherwin-Williams store reviews and processes your order.
For orders which are to be shipped directly to the shipping address you supply on http://www.swsamples.com (“E-Commerce Orders”), we will send you an order confirmation email after we have received your online order with your order number, a description of the Products you have ordered, and your shipping and billing addresses. Except as otherwise specified below, all E-Commerce Orders are final at the time your payment is accepted online and there are no returns or refunds.
(b) Cancelation, Delivery Delays and Redelivery. With the exception of orders for tinted Products, special orders (“Custom Orders”), E-Commerce Orders, or as otherwise set forth in any applicable Additional Terms, you have the option to cancel your order at any time prior to pick up in our Retail Store, or prior to receipt of delivery window confirmation, which you will receive either via (i) phone call from your Retail Store, (ii) text to the phone number you provided at checkout, or (iii) email, by calling your Retail Store and notifying them of your intent to cancel your order. E-Commerce Orders and Custom Orders cannot be cancelled by you once the order is placed online. You agree that we may cancel any online order at any time, even if it has been accepted by Sherwin-Williams and even if you have received an email order confirmation, if: (i) we believe that the order violates applicable law, including any law that requires proof of identity or age in order to purchase a particular Product or laws limiting the sale of certain products in defined jurisdictions; (ii) we discover an error related to your order or if we are not able to fill the order, including E-Commerce Orders, to the specifications (e.g., quantity, size, color, sheen, and/or base) you have selected (in which case, we may contact you and offer an alternative, but are not obligated to do so except as required by applicable law); or (iii) if you have not picked up or scheduled delivery, or received delivery of the Product after the delivery attempt, if applicable, within fourteen (14) days after the date of your order. We will attempt to deliver or make available for pick up all Products within thirty (30) days of order confirmation, typically sooner. With the exception of E-Commerce Orders, if we are unable to make available for pick up or deliver Products within 30 days, we will provide you notice with an estimate of when the Products will be available and permit you to elect a refund or to accept delayed delivery. Refunds and cancelation of credit holds for canceled orders will be as set forth in Section 6 and 7 or any applicable Additional Terms.
(c) Custom Orders. Custom Orders cannot be cancelled by you and must be scheduled for delivery or picked up at the Retail Store specified in your order confirmation email within fourteen (14) days of the date of your online order. If a Custom Order is not picked up or scheduled to be delivered within such fourteen-day period, Sherwin-Williams may: (i) cancel all or any part of your online order; (ii) charge your Account for the full amount of the Products that are Custom Order (including all taxes and fees associated with such Custom Order); and (iii) dispose of such Custom Order Products as Sherwin-Williams deems fit, in its sole and absolute discretion. You agree to pay for all Products that are Custom Orders in full in accordance with these Terms & Conditions. E-Commerce Orders are not Custom Orders.
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PRICES AND TAXES. The price charged for a Product, and applicable taxes, will be the price and taxes in effect at the time your order is placed and will be specified during the checkout process and in your order confirmation e-mail. Taxes shown during the checkout process and in your order confirmation email are estimated; actual taxes will be calculated upon pick up in the Retail Store, or, if a delivery option is chosen, will be calculated based upon your selected delivery location. This also applies to tax exemptions or other circumstances affecting the existence of tax (e.g., tax holidays) applicable to your order, which may change between the time of placement of your order and the time of completion of your order via pick up or delivery. Tax exemptions may not apply if the sales transaction is not completed through final pick up or delivery on the day that is designated for tax exemption. Nominal fees, such as carryout bag fees or public improvement fees, may be added if required by law in your store’s jurisdiction and will be calculated upon pick up in the Retail Store or, if applicable, upon delivery. Price increases will only apply to orders placed after such changes are posted on the Website. All prices posted on the Website are subject to change without notice. Prices and Product descriptions are subject to correction for error. As permitted by applicable law, we are not responsible for any pricing, typographical, photographical or other errors in our Website information. If we discover errors, we may contact you and give you the option to cancel or revise your order, and we reserve the right to cancel any orders arising from any such errors. For paint Products displayed on the Website, the Product size listed on the website is the size of the Product container. The actual volume of the Product purchased may be smaller than the Product size that is listed on the Website so that we can leave room in the container to add tint in the store. Payment for the Products shall be made in U.S. dollars. Prior to submitting your payment information, you will have the opportunity to review Product prices and taxes. In the event that we are unable to display taxes during the online checkout process, you will be notified of this during checkout, and you will receive a final invoice including all taxes and fees when you pick up the Products in a Retail Store or upon receipt of your delivered Products.
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TERMS OF PAYMENT. Your credit card, or, for professional customers, your Sherwin-Williams credit account (“Account”) will be authorized for the full amount of the sale when the online checkout process is completed. With the exception of E-Commerce Orders, Sherwin-Williams will charge your Account only upon the earlier of: (i) the date the Products are picked up at the Retail Store; (ii) the date the Products are delivered to the location specified at checkout; or (iii) the date your order is cancelled by Sherwin-Williams pursuant to the terms set forth in Section 4(b)(iii) or 4(c). E-Commerce Orders will be charged to your credit card when shipped. If you timely cancel an order as set forth in Section 4(b), or we cancel your order for any reason other than as set forth in Section 4(b)(iii), 4(c), or otherwise provided in applicable Additional Terms, your Account will be refunded or the credit hold removed, as applicable. It may take several days before the credit hold is released on, or a refund is posted to, your Account. Sherwin-Williams shall not be liable for any costs or other liabilities associated with such a continuing hold. If your credit card expires before you pick up the Products in the designated Retail Store or prior to the delivery of your Products, as applicable, we may notify you and require that you enter the credit card number again with the new expiration date. You acknowledge that it is possible that the final amount charged to your Account may be more or less than the amount originally authorized at the time the online checkout process is completed. This may occur, for example, if the actual taxes applicable to an ordered Product charged at pick up or delivery are more or less than the estimated taxes shown online, if the non-tax state or territory fees applicable to an ordered Product have changed between the date of your order and the date of pick up or delivery, if certain fees such as carryout bag or public improvement fees are required by law in your store’s jurisdiction, or if you make changes to your order at the Retail Store during pick up (for example, you use a coupon to reduce the price of your purchase).
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DELIVERY, TITLE AND RISK OF LOSS. Sherwin-Williams will arrange for the Products to be made available for pick up at the Retail Store designated at the time you checkout online; or, if the delivery option is chosen, Sherwin-Williams or its designated third-party provider will deliver your Products to your specified location. E-Commerce Orders will be shipped via USPS and title and risk of loss shall pass to you upon our placing of the Products with the carrier. For Products other than E-Commerce Orders, delivery will occur on the date and time scheduled by Sherwin-Williams via email or phone, unless you call to cancel your order as set forth in Section 4(b). For assistance in tracking a delivery, contact our online customer service as set forth in Section 15(a); however, it is your responsibility to monitor the status of your order. You are responsible for picking up the Products from the Retail Store specified in our order confirmation email, or for being present at the specified delivery location at the time of Delivery. If you are not present at the delivery location, Sherwin-Williams may leave the Products at your delivery location unless explicitly instructed by you not to do so, or may return your order to the Retail Store designated at the time of checkout. In that case, we will call you to reschedule your delivery, and if we cannot reach you, we may cancel your order and as set forth in Section 4. You warrant that either you or your representative shall have the right to accept delivery of your order, are at least 18 years of age or older, and upon request, will provide (i) a signature acknowledging receipt of your order, (ii) appropriate identification, and (iii) a copy of your order confirmation email. You acknowledge that you will be responsible for re-ordering any items that are returned to us as undeliverable. Title and risk of loss for the Products pass to you upon our transfer of the Products to you in the Retail Store, or, if you have opted to receive your Products via delivery, and they are not E-Commerce Orders, title and risk of loss of the Products shall pass upon delivery to the address you specified, regardless of whether you receive the delivery in-person or the Products are left at your delivery address. The time of delivery is not of the essence, and Sherwin-Williams shall not be liable or responsible for any costs, charges, expenses, damages or for any penalty, liquidated or otherwise, for late or delayed delivery. All delivery dates, including any delivery dates specified in your order confirmation email, are approximate and are not guaranteed. For orders other than E-Commerce Orders, we will call you if we need to cancel your order or reschedule your delivery for any reason, and if we cannot reach you to reschedule your delivery after reasonable attempts to do so, we will cancel your order in accordance with Section 4(b) and provide you with a refund as set forth below.
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PRODUCTS RETURNED FOR CREDIT. Except for any Custom Orders, E-Commerce Orders, or any other Products designated on the Website, or applicable Additional Terms, as custom or non-returnable, Sherwin-Williams will accept a return of the Products ordered online for a refund of the purchase price, provided any such return is made within thirty (30) days of the date of your online order as reflected in the Sherwin-Williams automated order tracking system and provided such Products are returned in their original, unopened condition together with proof of purchase. Bundled items need to be returned with all the components. It is your responsibility to make arrangements for the return of Products that were delivered, and you acknowledge and agree that Sherwin-Williams will not reimburse you for any expenses associated with the return of a delivery order. YOU ACKNOWLEDGE AND AGREE THAT E-COMMERCE ORDERS AND CUSTOM ORDER PRODUCTS, INCLUDING, WITHOUT LIMITATION THOSE PRODUCTS THAT ARE MANUFACTURED OR MIXED TO YOUR PARTICULAR SPECIFICATIONS USING OUR ONLINE TOOLS, CANNOT BE RETURNED OR REFUNDED. Refunds are ordinarily processed by Sherwin-Williams within four (4) business days of acceptance of the returned Products at a Retail Store. However, it may take longer for the refund to be processed by your bank, credit card company, or other financial institution. Sherwin-Williams shall not be liable for any costs or other liabilities associated with any delay by your bank, credit card company, or other financial institution in processing your refund. Refunds will be issued to/in the original form of payment.
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LIMITED WARRANTIES; DISCLAIMERS. Except for E-Commerce Orders, Sherwin-Williams warrants to you that, as of the date of pick up in a Retail Store, or as of the date on which your Products are delivered, and for a period of ninety (90) days thereafter, those Products that are manufactured by Sherwin-Williams shall (i) conform to Sherwin-Williams’ then-current quality control specifications for manufacturing such Products; and (ii) be subject to any label warranty affixed to the container or packaging of such Products. As permitted by applicable law, the above warranties extend only to you and not to any other individual or entity. For Products that are not manufactured by Sherwin-Williams, the original manufacturer’s warranty, if any, shall apply to the extent assignable by Sherwin-Williams. As permitted by applicable law, except for an express written limited warranty signed by an authorized representative of Sherwin-Williams, Sherwin-Williams makes no other warranties, either in writing or orally, including on the Website or in any marketing brochure or promotional literature. SUBJECT TO APPLICABLE LAW, SHERWIN-WILLIAMS SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION TO THE ABOVE DISCLAIMERS, ALL E-COMMERCE ORDERS ARE SOLD AS-IS, WITH NO WARRANTIES OF ANY KIND. As permitted by applicable law, the warranties set forth in this provision cease to be effective if you fail to use the Products sold hereunder in a safe and reasonable manner and in strict compliance with all written instructions and/or specifications from Sherwin-Williams or the third-party manufacturer of such Products.
a. Replacement Products. As permitted by applicable law, the obligation of Sherwin-Williams under the warranties in this section is limited, at our option, to the replacement of defective Products or the refund of the purchase price for such defective Products. Any replacement Products will be delivered to the Retail Store specified in your original order confirmation email, provided that (i) prompt notice of any defect is given by you to us within the warranty period specified above, and (ii) upon your return of the defective Products to the Retail Store an inspection thereof reveals to our satisfaction that your claim is valid under the terms of this warranty. It is your responsibility to arrange for the return of defective Products to the Retail Store specified in your order confirmation email and for the delivery of any replacement Products, which may be subject to an additional delivery fee.
b. Referrals. From time to time Sherwin-Williams, or one of our customer service specialists in our online store or in a Retail Store, may make a recommendation of, or a referral to, a painting applicator trained or experienced in applying the Products. In addition, Sherwin-Williams may make available technical service personnel (either online or in a Retail Store) to provide consultations and advice to you regarding the application and use of the Products. As permitted by applicable law, YOU ACKNOWLEDGE AND AGREE THAT ANY TECHNICAL OR OTHER ADVICE FURNISHED, OR RECOMMENDATIONS OR REFERRALS MADE, BY SHERWIN-WILLIAMS OR ITS REPRESENTATIVES ARE PROVIDED WITHOUT CHARGE AND ON AN “AS IS” BASIS. SHERWIN-WILLIAMS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ANY SUCH RECOMMENDATIONS, REFERRALS, CONSULTATIONS OR ADVICE AND ACCEPTS NO LIABILITY ARISING THEREFROM, NOTWITHSTANDING ANY REPRESENTATIONS MADE BY SHERWIN-WILLIAMS OR ITS REPRESENTATIVES TO THE CONTRARY.
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LIMITATION OF LIABILITY.
OUR USE OF THE WEBSITE AND ANY PRODUCT PURCHASED THROUGH THIS WEBSITE IS ENTIRELY AT YOUR OWN RISK. EXCEPT WITH RESPECT TO CLAIMS BASED ON PERSONAL INJURIES, IN NO EVENT SHALL SHERWIN-WILLIAMS BE LIABLE TO YOU, OR ANYONE CLAIMING THROUGH OR ON BEHALF OF YOU, FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECULATIVE, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DIRECT OR INDIRECT LOST PROFITS, LOSS OF USE, PENALTIES OR DEMURRAGE, WHETHER OR NOT BASED UPON SHERWIN-WILLIAMS’ NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, TORT OR ANY OTHER CAUSE OF ACTION, EVEN IF SHERWIN-WILLIAMS IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO CLAIMS BASED ON PERSONAL INJURIES AND AS PERMITTED BY APPLICABLE LAW, SHERWIN-WILLIAMS’ SOLE LIABILITY, AND THE EXCLUSIVE REMEDY THAT YOU OR ANYONE CLAIMING THROUGH OR ON BEHALF OF YOU WILL HAVE, FOR ANY CAUSE OF ACTION ARISING IN CONNECTION WITH THE PRODUCTS AND/OR THE USE OF THE WEBSITE, INCLUDING BUT NOT LIMITED TO, THE RECOMMENDATION, PURCHASE, TRANSPORTATION, STORAGE, HANDLING, OR USE OF THE PRODUCTS, IS EXPRESSLY LIMITED TO, AT SHERWIN-WILLIAMS’ OPTION, REPLACEMENT OF THE DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE THEREOF.
NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY SHERWIN-WILLIAMS PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY SHERWIN-WILLIAMS PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (II) SHERWIN-WILLIAMS PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY SHERWIN-WILLIAMS PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST SHERWIN-WILLIAMS PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
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FORCE MAJEURE. Sherwin-Williams will not be liable or deemed to be in breach of these Terms & Conditions for any delay or failure to perform any or all of its obligations by reason of fire, explosion, accidents, pandemic, hurricanes, tornados, flood, unusually severe or abnormal weather, war or threat of war, riots or civil commotion, acts of terrorism, acts of any governmental authority or agent, interruption of or delay in transportation of Products, labor disputes, shortage of materials or raw materials, inability to obtain raw materials at a reasonable price, acts of God or any other circumstance or event beyond the reasonable control of Sherwin-Williams. If we are rendered unable by force majeure to carry out any or all of our obligations under these Terms & Conditions, we will use reasonable efforts to give notice to you by email, and upon the giving of such notice the obligations of Sherwin-Williams shall be suspended or terminated as may be necessary under the circumstances.
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PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS. The intellectual property provisions of our Website Terms of Use, found at http://www.sherwin-williams.com/terms-of-use, together with the following terms govern your online ordering and purchase of Products. As between you and Sherwin-Williams, all patents and other intellectual property rights arising out of or related to (a) the Products and their formulation and manufacture, and (b) this website and its features, functionality and tools, including but not limited to the ColorSnap® Visualizer for Web, are the sole and exclusive property of Sherwin-Williams. Except for the limited, revocable, non-exclusive right to view, copy, print, and download materials on the Website for personal, noncommercial, informational use only, you do not, by virtue of your purchase or possession of the Products or your use of the Website, receive any intellectual property ownership interest or any license rights with respect to the Products or this website. In particular and without limitation of the foregoing, you do not, by virtue of your purchase or possession of the Products, receive any right or license (express or implied) to make or have made the Products or to use any trademark or trade name associated with Sherwin-Williams or the Products. To the fullest extent permitted by applicable law, you agree not to analyze or otherwise examine, or allow to be analyzed or examined, any of the Products for the purpose of reverse engineering the formulations used to make the Products or for the purpose of creating a product that competes with any of the Products. You agree not to repackage the Products or remove any trademark or copyright notice from the Products. You further agree not to use or seek to register any trademark, trade name or domain name which is identical or confusingly similar to any trademark, trade name or domain name that Sherwin-Williams owns anywhere in the world. In the event of a conflict between the provisions of the Website Terms of Use and the provisions of this Section 12, the provisions that are most protective of Sherwin-Williams (as determined by Sherwin-William) shall govern and control.
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PRIVACY AND WEBSITE TERMS. Our Privacy Policy, the current version of which can be found at http://privacy.sherwin-williams.com/privacy-highlights, governs the processing of all personal data collected from you in connection with your purchase of Products through the Website. Your use of the Website is also governed by our Terms of Use, the current version of which can be found at http://www.sherwin-williams.com/terms-of-use.
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PRODUCT MODIFICATIONS. Except to the extent expressly stated in a written agreement entered into between Sherwin-Williams and you, all Products that are sold to you using the Website and our online store are sold for end-use by you and, as permitted by applicable law, may not be resold, relabeled, or repackaged. We reserve the right to change the formulation or method of manufacture of the Products from time to time in our sole discretion and we will have no obligation to notify you before or after any such change in the Products.
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COMMUNICATIONS AND NOTICES.
a. Customer Service and Notices. Customer Service can be contacted at 1-800-4-SHERWIN (1-800-474-3794). Legal notices must be delivered to us by you as set forth in subsection (e) below and not to our customer service representatives. Sherwin-Williams may provide notice to you under these Terms & Conditions by any reasonable method, which you agree includes: (a) sending an email to you; or (b) with respect to any prospective changes to these Terms & Conditions by posting to the Sherwin-Williams website.
b. Telephone Communications. Your telephone communications with Sherwin-Williams, including calls with our online customer service representatives and any of our other customer service providers or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing us with a mobile or other phone number as part of your online registration or during a service call, you expressly authorize us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
c. Email Communications. You agree that we may send emails to you using the e-mail address that you used to create your Sherwin-Williams online account or the address you used to place your order for Products. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current. We assume no responsibility for issues resulting from e-mail notification failures. You consent to receiving promotional messages to the emails you provide to us. You can unsubscribe to our promotional emails by following the instructions on those emails; provided, however, you may receive transactional emails after unsubscribing (e.g., emails responding to an inquiry or related to your order)
d. Mobile Text Alerts. You may receive limited order and/or delivery status alerts via text message to the mobile number you provided when setting up your account with Sherwin-Williams at www.sherwin-williams.com OR to the number you provide during online checkout, and you may also be offered the option to receive order and delivery status alerts via text message to an alternate mobile number you provide. By providing your mobile phone number when you create an account with Sherwin-Williams on www.sherwin-williams.com OR as part of the online checkout process, you are agreeing to receive these text message alerts. Your consent is not required as a condition of purchasing any goods or services from us. By agreeing to receive text alerts from us, you certify that you are over 18 years of age and (a) you are the mobile account holder or (b) you have the account holder’s permission to enroll the designated mobile phone number and can incur any mobile message or data charges. You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to receive delivery status alerts and notifications. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. Our privacy policy is found on our website at Sherwin-williams.com. This is NOT a recurring messaging program, and you will be asked with each order you place if you would like to receive text messages and/or delivery status alerts for your order.
e. Mail Delivery. You may provide notice to Sherwin-Williams under these Terms & Conditions by personal delivery, overnight courier or registered or certified mail to Senior Marketing Director, E-Business, 310 Skylight Office Tower, 1660 W. 2nd Street, Cleveland OH 44113, with a copy to General Counsel, 101 W. Prospect Ave, Cleveland OH 44115. We may update the address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective upon receipt by us. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
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INDEMNIFICATION. Subject to applicable law and the express terms of these Terms & Conditions or any applicable Additional Terms, after you pick up a Product from a Retail Store or accept delivery of a Product, you shall be solely responsible for the proper transportation, handling, exportation, storage, processing, alteration, use, application, and/or disposal of such Product. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold Sherwin-Williams harmless from and against any and all actual, alleged, or threatened claims, liabilities, and costs and expenses (including attorneys’ fees) arising out of or resulting from (a) any transportation, handling, exportation, storage, processing, alteration, use, application and/or disposal of a Product by your and/or your applicator; and (b) any actual or alleged breach by you of, or any inaccuracy in, any representation, warranty, covenant or undertaking made by you in these Terms & Conditions.
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REGULATED PRODUCTS. You acknowledge that (a) the Products are subject to various federal, state, territory, municipal and local laws, rules and regulations, (b) the Products will be delivered to a Retail Store where you can take delivery of them, or will be delivered to the address provided by you, and (c) the Products are labeled for end-use within the jurisdiction of that ship-to Retail Store or your U.S. delivery address. You may not export or otherwise ship, use, or apply the Products outside of the jurisdiction of that Retail Store or delivery address. The Products are intended for your use only, and as permitted by applicable law, are not for resale.
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COMPLIANCE WITH LAWS. You agree to comply with all applicable laws, rules and regulations, including, without limitation, all, laws, rules and regulations, including VOC use and sales restrictions, in any way relating to your purchase, ownership, transportation, receipt, handling, storage, processing, alteration, use, application, and disposal of the Products once the Products have been picked up by you from a Retail Store or you have otherwise accepted delivery of the Products.
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RESPONSIBLE PRACTICES.
You acknowledge that Sherwin-Williams has made available on its Website product literature and information (including Safety Data Sheets, Product Data Sheets, and Environmental Data Sheets) that include product ingredient composition, health, safety, fire and environmental hazards and warnings, first aid and accidental spill measures, handling, storage, protection and exposure guidelines related to the Products available for purchase on the Website. You may find the specific information for each product by using the Data Sheets search tool on the Sherwin-Williams Website. You agree (i) to receive this information in electronic form and to familiarize yourself with all such information; (ii) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Products, including, without limitation, special care and practices relating to your use of the Products; (iii) instruct your employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of the Products (including, without limitation, information contained in Sherwin-Williams’ most current Safety Data Sheets or Product Data Sheets); and (iv) comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to persons, property or the environment. In the event the Products are intended for professional use only, you represent and warrant to Sherwin-Williams that you are a professional user experienced and knowledgeable regarding how to properly and safely handle, store, dispose of, and use such Products.
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DISPUTE RESOLUTION.
a. Binding Arbitration. Any and all disputes arising out of or related to your purchase or use of the Products, your use of the Website, these Terms & Conditions, or the breach thereof other than intellectual property disputes ("Non-IP Disputes") shall be resolved exclusively by binding arbitration administered by the American Arbitration Association (AAA) except that you may assert claims in small claims court in the county of your residence or in Cleveland, Ohio. The AAA’s Commercial Arbitration Rules and Mediation Procedures or, if you are an individual consumer purchasing for non-commercial purposes, the AAA’s Consumer Arbitration Rules, in effect at the time the arbitration is commenced shall govern such arbitrations unless they are inconsistent with these Terms of Use. (A current version of these rules is available here: https://www.adr.org/Rules or by calling 1-800-778-7879. These rules may be amended from time to time.) Any dispute relating to the scope, applicability, validity, or enforceability of this arbitration agreement or the arbitrability of any dispute shall also be resolved by binding arbitration with the AAA. You may initiate arbitration by utilizing the forms available on www.adr.org. As permitted by applicable law, you and Sherwin-Williams are each giving up the right to have disputes resolved in court before a judge and/or jury (except as stated otherwise in this section).
Any arbitration hearing will be conducted in Cleveland, Ohio by a single arbitrator or as otherwise provided by the Consumer Arbitration Rules, if applicable. The award of the arbitrator will be final and binding on the parties, and judgment upon such award may be entered in any court of competent jurisdiction. More information about the arbitration process is available at www.adr.org. This provision constitutes your and Sherwin-Williams’ written agreement for resolving disputes, including the agreement to arbitrate Disputes under the Federal Arbitration Act ("Dispute Agreement"), and is governed by the Federal Arbitration Act. If you are a consumer, you may opt-out of mandatory arbitration for each applicable Product sale transaction by sending us written notice (as set forth in Section 15(e)) with a copy of the purchase confirmation email and a request to opt-out of arbitration for that transaction within five (5) business days of receipt of the purchase confirmation.
b. Applicable Law in Arbitration. Claims arising under federal law shall be determined in accordance with federal law. Claims arising under state law shall be decided in accordance with Ohio substantive laws, without regard to conflict-of-laws principles.
c. Confidentiality. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
d. Arbitration Fees and Costs. If you submit specific and individualized evidence that arbitration costs are unduly burdensome and the arbitrator determines that arbitration costs would be unduly burdensome to you, Sherwin-Williams shall be responsible for the arbitrator's fees and arbitration expenses and any other costs unique to the arbitration hearing. Each party shall pay its own deposition, witness, expert, and attorneys' fees and other expenses to the same extent as if the matter were being heard in court. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees and costs, or if there is a written agreement providing for attorneys' fees and costs to be awarded to the prevailing party, the Arbitrator may award reasonable attorneys' fees in accordance with the applicable statute or written agreement. The Arbitrator shall resolve any dispute as to the reasonableness of any fees or costs awarded under this paragraph.
e. Class Action Waiver. Notwithstanding any AAA rules to the contrary, the parties agree to arbitrate Non-IP Disputes solely on an individual basis. This agreement does not permit class arbitration. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
f. Waiver of Jury Trial and Appellate Review. The parties understand and fully agree that by entering into this agreement to arbitrate, they are giving up their constitutional right to have a trial by jury in connection with any Non-IP Dispute, and they are giving up their normal rights of appeal following the rendering of the arbitrator’s award, except as applicable law provides for judicial review of arbitration proceedings.
g. Litigation of Intellectual Property Disputes. You or Sherwin-Williams may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction regarding any intellectual property dispute between the parties. You hereby irrevocably consent to jurisdiction and venue of the State and Federal courts of the State of Ohio with respect to any such injunctive or other relief. The parties acknowledge that their respective rights in their intellectual property are of a special, unique, extraordinary character, giving those rights peculiar value, the unauthorized use, disclosure, or loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
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APPLICABLE LAW. We both agree that these Terms & Conditions constitute a written agreement executed by both you and Sherwin-Williams under applicable law. These Terms & Conditions shall be governed by the laws of the State of Ohio, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
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GENERAL TERMS.
a. Assignment. You may not assign any rights or delegate any obligations under these Terms & Conditions without Sherwin-Williams’ prior written consent. Any assignment or delegation, or attempted assignment or delegation, in contravention of the foregoing shall be null and void. Sherwin-Williams may assign or delegate any of its rights or obligations hereunder. If any provision of these Terms & Conditions is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
b. Severability. If any provision of these Terms & Conditions, including those relating to Dispute Resolution, is declared invalid or unenforceable for any reason other than over-breadth, the offending provision shall be severed, and the remainder of the Terms & Conditions will be deemed to be binding and enforceable will be modified so as to maintain the essential benefits of the bargain between the parties hereto to the maximum extent possible, consistent with law and public policy.
c. Government Contracts. If the Products purchased by you are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding on Sherwin-Williams unless specifically agreed to by our authorized representative in writing.
d. No Waiver. The failure of Sherwin-Williams to enforce any of the provisions of these Terms & Conditions will not be construed to be a waiver of any provisions hereunder nor will any such failure prejudice the right of Sherwin-Williams to take any action in the future. Any waiver must be made in writing and signed by an authorized representative of Sherwin-Williams. These Terms & Conditions do not and are not intended to confer any rights or remedies upon any person other than you.
e. Conflicts. In the event any provision of these Terms & Conditions conflicts with the Terms of Use (available at https://www.sherwin-williams.com/terms-of-use), these Terms and Conditions of Sale will govern and control. In the event that these Terms & Conditions are translated into any language other than English, if any conflict exists between the original and the translation, the English language version will govern and control.
