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Effective date: 03/13/2025
These Terms and Conditions of Sale (“Terms & Conditions”) govern the purchase of Products (defined below) by you from The Sherwin-Williams Company (together with its successors, affiliates and subsidiaries, collectively, “Sherwin-Williams”). In these Terms & Conditions, “you” and “your” refers to the individual or entity who has purchased Products from Sherwin-Williams (“we”, “us”, “our”). “Products” means any paints, stains, finishes, coatings, painting tools, applicators, supplies, varnishes, wallpaper, and any other related goods and services available for purchase at a Sherwin-Williams brick-and-mortar location in the United States or Canada (“Location”) or by any website, mobile app, portal or online service available in the United States or Canada that incorporates these Terms & Conditions (collectively, the “Website”).
PLEASE READ CAREFULLY -- In these Terms & Conditions you will waive or give up certain legal rights and agree to certain limitations of liability and exclusions of damages. These Terms & Conditions have a dispute resolution provision that requires arbitration on an individual basis to resolve certain disputes, rather than jury trials or class actions, and waives your right to trial by jury in certain circumstances. If you do not agree with these Terms & Conditions, do not purchase, order or use any Products.
1. BINDING AGREEMENT. If you purchase any Products from us (or if you pick up, accept delivery of, pay for or use any Products purchased) through the Website or a Location, then you have agreed to accept and be legally bound by these Terms & Conditions and Privacy Policy, and, for Website orders, the Website Terms of Use. However, if you are a business-to-business customer buying primarily for commercial purposes and not personal, family or household use (“Commercial Customer”), and have entered into a written commercial agreement that has been executed and delivered by you and an authorized representative of Sherwin-Williams (“Supply Agreement”), then that Supply Agreement supersedes these Terms & Conditions to the extent of any conflict with these Terms & Conditions. Absent such a Supply Agreement, these Terms & Conditions, along with the provisions, if any, contained in our invoice, or in the applicable Sherwin-Williams order confirmation, 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 and 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 these Terms & Conditions.
2. AMENDMENTS AND CHANGES. We may supplement, amend, or revise these Terms & Conditions in our sole discretion by posting additional terms, such as Product-specific terms and terms of special offers, (“Additional Terms”) on the Website or at the Location. In the event of a conflict between these 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, the Website Terms of Use and the Privacy Policy are subject to prospective change, amendment, or revision by Sherwin-Williams, in our sole discretion without prior notice to you, except that the Terms & Conditions, the Website Terms of Use and the Privacy Policy posted on the Website at the time you place an order will govern the purchase in question. You agree that posting of revised versions of these Terms & Conditions on the Website is sufficient notice of any changes, and those changes are effective upon posting. You should review the Terms & Conditions and other applicable terms, policies and notices prior to each time you purchase any Product. Your purchase of Product(s) constitutes your acceptance of and agreement to the then-current version of the Terms & Conditions, the Website Terms of Use, and the Privacy Policy.
3. PRODUCT ORDERS. Not all Products are available for purchase in all jurisdictions in which we operate our Locations, and online ordering is not available everywhere. In addition, Sherwin-Williams cannot guarantee that Products shown on the Website as in stock are available for immediate shipping, pick up, or delivery, 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 an order is an offer to buy, under these Terms & Conditions, such Products you have identified in your 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. 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).
4. ONLINE, SAMPLE, AND CUSTOM ORDER CONFIRMATION AND CANCELLATION.
(a) Online Order Confirmation. For online orders placed on the Website which are to be picked up in a Location or delivered from a Location to you, we will send you an order confirmation email after we receive your online order with your order number, a description of the Products you have ordered, and the Location 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 Location reviews and processes your order.
For orders which are to be shipped directly to the shipping address you supply on http://www.swsamples.com or https://samples.sherwin-williams.ca(“Sample 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 Sample Orders are final at the time your payment is accepted online and there are no returns or refunds.
(b) Cancellation, Delivery Delays and Redelivery. With the exception of orders for tinted Products, special orders for goods manufactured pursuant to a purchase order, forecast, or other request (“Custom Orders”), Sample Orders, or as otherwise set forth in any applicable Additional Terms, you have the option to cancel your online order at any time prior to pick up in our Location, or prior to receipt of delivery window confirmation, which you will receive either via phone call from your Location, text to the phone number you provided at checkout, or email. To cancel, call your Location and notify them of your intent to cancel your order. Sample Orders and Custom Orders cannot be cancelled by you once the order is placed. 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 Sample 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, 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 Sample Orders, if we are unable to make available for pick up or deliver Products within thirty (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 cancellation of credit holds for cancelled orders will be as set forth in Section 6 and Section 7, or any applicable Additional Terms.
(c) Custom Orders. Custom Orders cannot be cancelled by you. If the Custom Order was placed on a Website, it must be scheduled for delivery or picked up at the Location 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 (14) day period, Sherwin-Williams may: (i) cancel all or any part of your online order; (ii) charge your Account (defined in Section 6(b)) for the full amount of the Products that are the 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. If the Custom Order was not placed on a Website and you do not request shipment of the Custom Order within ninety (90) days after manufacturing date, Sherwin-Williams may ship and invoice you for the Custom Order and/or retain any applicable deposit.
You agree to pay for all Products that are Custom Orders in full in accordance with these Terms & Conditions. Sample Orders are not Custom Orders.
5. PRICES AND TAXES.
(a) Online Orders. 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 email (where applicable). Taxes shown during the checkout process and in your order confirmation email are estimated; actual taxes will be calculated upon pick up in the Location, or, if a delivery option is chosen, will be calculated based upon your selected delivery site. 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, including but not limited to carryout bag fees, public improvement fees and paint stewardship program assessments may be added if required by law in your store’s jurisdiction and will be calculated upon pick up in the Location 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 by Sherwin-Williams 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. Payment for the Products shall be made in U.S. dollars.
(b) Other Orders. Prices for the Products shall be the prices in effect at the Location at the time of purchase, unless otherwise agreed to in writing with Sherwin-Williams. Prices exclude all taxes, fees and duties, which exclusions include, without limitation, all: (i) sales, use, franchise, license, excise, VAT and other taxes; (ii) carryout bag fees, public improvement fees, paint stewardship program assessments and the like (if required by local law); (iii) export or import duties and; (iv) inspection fees, all of which shall be paid by you unless a proper exemption certificate is furnished. All prices are subject to change by Sherwin-Williams without notice. Payment for such Products (including any applicable taxes, fees and/or duties) shall be made in the currency set forth on the invoice.
6. TERMS OF PAYMENT.
(a) In General. You agree to pay for all Products ordered by you in full, without offset or deduction, at the prices, quantities, and payment terms specified on Sherwin-Williams’ invoice at the time of purchase. Notwithstanding the foregoing, Sherwin-Williams may extend credit to you in Sherwin-Williams’ sole and absolute discretion through a Sherwin-Williams credit account, and Sherwin-Williams reserves the right to modify such credit terms at any time or require payment in full prior to pick up at the Location or delivery to the selected site.
(b) Online Orders. Your credit card or your Sherwin-Williams credit account (each, an “Account”) will be authorized for the estimated amount of the sale when the online checkout process is completed. With the exception of Sample Orders, Sherwin-Williams will charge your Account only upon the earlier of: (i) the date the Products are picked up at the Location; (ii) the date the Products are delivered to the site 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). Sample Orders will be charged to your Account 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 Location 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 displayed 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, public improvement and/or paint stewardship program assessments are required by law in your store’s jurisdiction, or if you make changes to your order at the Location during pick up (e.g., you use a coupon to reduce the price of your purchase).
7. DELIVERY, TITLE AND RISK OF LOSS. Sherwin-Williams will arrange for the Products to be made available for pick up at the Location where your order was placed or as designated at the time we receive your order; if the delivery option is chosen, Sherwin-Williams or its designated third-party provider will deliver your Products to your specified site. Sample Orders will be shipped via postal mail. For Products other than Sample Orders, anticipated delivery shall be on the date and time as scheduled; provided, however, 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 assistance in tracking a delivery, contact the Location, consult your delivery notice text messages (if applicable), or 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 Location or for being present at the specified delivery site at the time of Delivery. If you are not present at the delivery site, Sherwin-Williams may leave the Products at your delivery site unless we are unable to do so. In that case, we will contact you to reschedule your delivery, and if we cannot reach you, we may cancel your order. For orders other than Sample Orders, we will contact 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 and provide you with a refund as set forth in Section 8. 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. You agree to reimburse Sherwin-Williams for extra freight charges, special packaging and incidental costs incurred for Products delivered at your request by means other than Sherwin-Williams’ customary delivery methods. Except for Sample Orders, title and risk of loss for the Products pass to you upon the earlier of: (i) our transfer of the Products to you in the Location; (ii) our placing of the Products with a third-party provider; or (iii) delivery to the address you specified, regardless of whether you receive the delivery in person or the Products are left at your delivery address. Delivery costs may vary and will be disclosed to you prior to finalizing your transaction.
8. PRODUCTS RETURNS. Except for tinted Products, Custom Orders, Sample Orders, Products manufactured or mixed to customer specifications using Sherwin-Williams online tools, or any other Products designated on the Website, or applicable Additional Terms, as custom or non-returnable, Sherwin-Williams will accept a return of Products for a refund of the purchase price, provided any such return is made within thirty (30) days of the date of sale as reflected on your receipt 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, and you acknowledge and agree that Sherwin-Williams will not reimburse you for any expenses associated with the return of a delivery order. Refunds are ordinarily processed by Sherwin-Williams within four (4) business days of acceptance of the returned Products at a Location. 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 typically be issued to/in the original form of payment. Notwithstanding the foregoing, Sherwin-Williams reserves the right to close a customer’s account or to cancel or refuse orders, returns, or refunds for violations or abuse of this return policy or any suspected fraudulent activities relating to returns.
9. LIMITED WARRANTIES; DISCLAIMERS. Except for Sample Orders, Sherwin-Williams warrants to you that, as of the date of pick up in a Location, or as of the date on which your Products are delivered, those Products that are manufactured by Sherwin-Williams shall: (i) conform to Sherwin-Williams’ then-current quality control specifications for manufacturing such Products; (ii) be subject to any label warranty affixed by Sherwin-Williams to the container or packaging of such Products (unless you are a Commercial Customer subject to a mutually agreed upon project warranty in writing, in which case the project warranty shall control). As permitted by applicable law, the above warranties extend only to you as the purchaser 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, TITLE, NON-INFRINGEMENT, AND OTHER VIOLATIONS OF RIGHTS. IN ADDITION TO THE ABOVE DISCLAIMERS, ALL SAMPLE 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 available at the same Location where the original Products were picked up, or other site or Location as agreed upon by you and Sherwin-Williams, 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 Sherwin-Williams an inspection thereof reveals to our satisfaction that your claim is valid under the terms set forth herein. It is your responsibility to arrange for the return of defective Products to the designated Location or site and for the delivery of any replacement Products, which may be subject to an additional delivery fee.
(b) Referrals, Recommendations, and Estimates. From time to time Sherwin-Williams, or one of our customer service specialists online or in a Location, 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 Location) to provide consultations and advice to you regarding the application and use of the Products. Any estimated volumes, prices per gallon and product coverage rates provided by Sherwin-Williams to you are based on typical product coverage rates, package sizes and the estimated size of project, all of which must be verified by you. Quantity, actual volume and product coverage rates are estimates and may vary based on product color (base and tint, if any), mix ratios, substrates and waste. You can review the product labels, product data sheets, or contact your Location for more information. 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.
10. LIMITATION OF LIABILITY.
YOUR USE OF A WEBSITE OR LOCATION AND ANY PRODUCT PURCHASED THROUGH THEM IS ENTIRELY AT YOUR OWN RISK. EXCEPT WITH RESPECT TO CLAIMS BASED ON PERSONAL INJURIES, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL SHERWIN-WILLIAMS BE LIABLE TO YOU, OR ANYONE CLAIMING THROUGH OR ON BEHALF OF YOU, FOR ANY DIRECT OR INDIRECT, EXEMPLARY, PUNITIVE, SPECULATIVE, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, LOST PROFITS OF ANY KIND, LOSS OF USE, PENALTIES OR DEMURRAGE, THIS LIMITATION OF LIABILITY APPLIES WHETHER OR NOT THE ALLEGED LIABILITY IS 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 AND EVEN IF THOSE DAMAGES ARE FORESEEABLE. EXCEPT WITH RESPECT TO CLAIMS BASED ON PERSONAL INJURIES AND TO THE MAXIMUM EXTENT 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 A WEBSITE OR LOCATION, 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. IN THE EVENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES TO THE EXTENT INDICATED ABOVE, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE PRODUCTS, LOCATIONS, AND WEBSITES WOULD NOT BE MADE AVAILABLE TO YOU ABSENT SUCH LIMITATIONS.
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 OR A THIRD-PARTY MANUFACTURER WITH REGARD TO A PHYSICAL PRODUCT SOLD BY SHERWIN-WILLIAMS TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (ii) SHERWIN-WILLIAMS’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY SHERWIN-WILLIAMS TO THE EXTENT THAT IT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (iii) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST SHERWIN-WILLIAMS THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
11. 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, and upon the giving of such notice the obligations of Sherwin-Williams shall be suspended or terminated as may be necessary under the circumstances.
12. PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS. The following terms govern your purchase of Products (together with the intellectual property provisions of our Website Terms of Use for online ordering). As between you and Sherwin-Williams, all patents and other intellectual property rights arising out of or related to: (i) the Products and their formulation and manufacture; and (ii) each Website and its features, functionality and tools, including but not limited to the ColorSnap® Visualizer for Web, and the Sherwin-Williams Color Expertᵀᴹ App 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 a Website for personal, noncommercial, informational use only, you do not, by virtue of your purchase or possession of the Products or your use of a Website, receive any intellectual property ownership interest or any license rights with respect to the Products or 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-Williams) shall govern and control.
13. 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 collection and processing of all personal data collected from you in connection with your purchase of Products. Your use of the Website is also governed by our Website Terms of Use, the current version of which can be found at http://www.sherwin-williams.com/terms-of-use.
14. PRODUCT MODIFICATIONS.
(a) By Sherwin-Williams. Certain Products are intended to be tinted or otherwise customized or modified by Sherwin-Williams. In such cases, the actual volume of the Product purchased may be smaller than the Product container size to leave room for such modifications. For paint Products displayed on the Website, at a Location, or otherwise displayed by Sherwin-Williams, the Product size listed is the size of the Product container. Please see the net contents on the Product labels, product data sheets, or contact Sherwin-Williams to determine Product volume and other product details.
(b) In General. Except to the extent expressly stated in a written agreement entered into between Sherwin-Williams and you, all Products that are sold to you by Sherwin-Williams are sold for end-use within the jurisdiction where the Products are delivered to you, and, except as expressly permitted by Sherwin-Williams, may not be resold, relabeled, or repackaged or otherwise modified. We reserve the right to change the manufacturing location, 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.
15. COMMUNICATIONS AND NOTICES.
(a) General Communications and Notices. You can contact us through our Customer Service department at 1-800-4-SHERWIN (1-800-474-3794) or online here. If you are an individual consumer buying for non-commercial use, notices of legal disputes should be sent as set forth in Section 23(c) and not to our customer service representatives. Notices provided by you through personal delivery will be effective upon receipt by us. Notices provided by you through overnight courier will be effective one business day after they are sent. Notices provided by you through registered or certified mail will be effective three (3) business days after they are sent. Sherwin-Williams may provide notice to you under these Terms & Conditions by any reasonable method, which you agree includes: (i) sending an email to you; or (ii) with respect to any prospective changes to these Terms & Conditions by posting to www.sherwin-williams.com. Notices sent by email will be effective when we send the email. Notices we provide by posting will be effective upon posting.
(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 and for other business purposes, 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 email address that you used to create your Sherwin-Williams online account or the email address you used to place your order for Products. Notices sent by email will be effective when we send the email. It is your responsibility to keep your email address current. We assume no responsibility for issues resulting from email notification failures. You consent to receiving promotional messages to the email address you provide to us. You can unsubscribe from 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 an order).
(d) Mobile Text Alerts. You may receive limited order and/or delivery status alerts via text message to the mobile phone number you provided when setting up your account or to the number you provided during checkout, and you may also be offered the option to receive order and delivery status alerts via text message to an alternate mobile phone number you provide. By providing your mobile phone number when you create an account with Sherwin-Williams or as part of the 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: (i) you are the mobile account holder; or (ii) 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 a 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. 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.
16. 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 Location or accept delivery of a Product, you shall be solely responsible for the proper transportation, handling, storage, 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: (i) transportation, handling, storage, use, resale, distribution, export, application and/or disposal of a Product by you and/or your applicator or other representatives; and/or (ii) any actual or alleged breach by you or your applicator or other representatives of, or any inaccuracy in, any representation, warranty, covenant or undertaking made with respect to any Product in these Terms & Conditions.
17. AUDIT. Unless permitted by Sherwin-Williams, in its sole discretion, you shall not have rights to audit or inspect Sherwin-Williams facilities, records and/or operations. In the event you request to audit or inspect Sherwin-Williams facilities, records and/or operation, and such request is granted in writing by an authorized representative of Sherwin-Williams, the audit shall be conducted at your sole expense and Sherwin-Williams shall exclusively control the conditions, scope and parameters of such audit, including the time and location.
18. CONFIDENTIALITY. To the extent applicable, you shall maintain all non-public information disclosed to you relating to Sherwin-Williams, the Products and/or the purchase of Products from Sherwin-Williams in strict confidence and shall not disclose such information to any person, corporation, firm or entity except as required by law. The foregoing obligation shall be in addition to any confidentiality agreement executed by you and Sherwin-Williams regarding the exchange of technical data or business information between the parties.
19. REGULATED PRODUCTS. You acknowledge that: (i) the Products are subject to various federal, state, territory, municipal, provincial and local laws, rules and regulations; (ii) the Products will be delivered to a Location where you can take delivery of them, or will be delivered to the address provided by you; and (iii) the Products are labeled for end-use within the jurisdiction where the Products are delivered to you. You may not export or otherwise ship, use or apply the Products outside of the jurisdiction in which the Products are delivered to you. The Products are intended for your use only, and as permitted by applicable law, are not for resale. Sherwin-Williams will not be responsible for any violations of applicable laws, rules, regulations, chemical inventory registrations, and related costs, expenses, taxes, fees and duties caused by your violation of this Section.
20. 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, distribution, sale, import, export, modification, receipt, handling, storage, use, application, and disposal of the Products once the Products have been picked up by you from a Location or you have otherwise accepted delivery of the Products.
21. RESPONSIBLE PRACTICES. You acknowledge that Sherwin-Williams has furnished or made available, or will furnish or make available upon request, 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. You may find the specific information for each product by using the data sheets search tool on the Sherwin-Williams Website or by requesting the data sheets from Sherwin-Williams. You agree to: (i) 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.
22. POLICIES. Sherwin-Williams shall not be bound by or required to comply with any code of conduct, sustainability or other policies of a buyer. Sherwin-Williams shall use commercially reasonable efforts to comply with its own corporate policies, which can be found at www.sherwin-williams.com; however, Sherwin-Williams shall not be liable directly or indirectly to you or to any third party for its failure to comply with its corporate policies.
23. DISPUTE RESOLUTION.
THIS SECTION 23 ONLY APPLIES TO INDIVIDUAL CONSUMERS PURCHASING FOR NON-COMMERCIAL USE; IT DOES NOT APPLY TO COMMERCIAL CUSTOMERS. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU AND SHERWIN-WILLIAMS TO ARBITRATE DISPUTES WITH SHERWIN-WILLIAMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND SHERWIN-WILLIAMS CAN SEEK RELIEF FROM EACH OTHER. THIS SECTION 23 DOES NOT APPLY TO COLLECTIONS DISPUTES.
(a) Arbitration Agreement and Jury Waiver. You and Sherwin-Williams mutually agree to resolve all Disputes (as defined below) in arbitration, as set forth in more detail below. Both 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), to the fullest extent of the law. The word “Disputes” means any past, existing, currently pending and/or future disputes, claims, suits, actions, causes of action, losses, liabilities, and/or demands of any kind in any way relating to, in connection with, or arising out of these Terms & Conditions, your use or purchase of any Sherwin-Williams Products or services, use of the Website, any Sherwin-Williams advertising or marketing, our relationship, or any other dispute in any way involving Sherwin-Williams, other than intellectual property disputes or collections disputes.
(b) Express Waiver of Right to Jury Trial, Class Actions, and Class Claims. AS TO ANY DISPUTE, BOTH SHERWIN-WILLIAMS AND YOU KNOWINGLY AND VOLUNTARILY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE RIGHT TO JURY OR BENCH TRIAL; THE RIGHT TO BRING, MAINTAIN, OR PARTICIPATE IN ANY CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDING, WHETHER IN ARBITRATION OR OTHERWISE; AND ANY NORMAL RIGHTS OF APPEAL FOLLOWING THE RENDERING OF THE ARBITRATOR’S AWARD, EXCEPT AS APPLICABLE LAW PROVIDES FOR JUDICIAL REVIEW OF ARBITRATION PROCEEDINGS. THE ARBITRATOR DOES NOT HAVE THE AUTHORITY TO CONSIDER, CERTIFY, OR HEAR ARBITRATION AS A CLASS ACTION, COLLECTIVE ACTION OR ANY OTHER TYPE OF REPRESENTATIVE ACTION. ALL DISPUTES WITH RESPECT TO WHETHER THE DISPUTE RESOLUTION PROVISION IN SECTION 23 AND ITS TERMS ARE ENFORCEABLE, CONSCIONABLE, APPLICABLE, VALID, VOID OR VOIDABLE SHALL BE DETERMINED EXCLUSIVELY BY AN ARBITRATOR, AND NOT BY ANY COURT.
(c) Pre-Arbitration Notice and Informal Dispute Resolution. In the event that a Dispute arises between us, Sherwin-Williams is committed to working with you to reach a reasonable resolution. Both you and Sherwin-Williams agree that each party will notify the other in writing of any Dispute before initiating arbitration, so that we can try to resolve the Dispute informally and individually, negotiating in good faith. The notice of Dispute must be specific and individual to you and include your name, street address, telephone number, and email, as well as a brief description of the Dispute, the amount of money (if any) at issue, and the specific relief sought. The notice must be signed and include the handwritten signature of, as applicable, either you or a Sherwin-Williams authorized representative, depending on which party is providing notice. Notice sent by you to Sherwin-Williams will be sent to the following email and street addresses:
The Sherwin-Williams Company
101 W Prospect Ave
Cleveland, OH 44115
Attn: Legal Department
Email: dispute@sherwin.com
Notice sent by Sherwin-Williams to you will be sent to the email or street address that you provided to Sherwin-Williams. You and Sherwin-Williams then agree to negotiate in good faith about the Dispute through an informal telephonic dispute resolution conference. The conference will be individual to you; multiple people or entities initiating claims cannot participate in the same conference. If either party has counsel, that party’s lawyer may participate, but the party also must appear and participate. If, and only if, we fail to reach an amicable settlement of the Dispute within sixty (60) days after receipt of the written notice of Dispute, then either party may commence an arbitration proceeding with a written demand for arbitration. Compliance with this informal dispute resolution provision is a prerequisite and condition precedent for initiating arbitration. Any limitations period and filing fee or other deadlines will be tolled from the date the Dispute is noticed to the other side until expiration of this sixty (60) day period.
(d) Arbitration Rules and Procedures. Arbitration will be administered by the American Arbitration Association (the “AAA”) or, if the AAA is unavailable or unwilling to administer the arbitration for any reason, with another arbitration provider mutually agreed to by the parties. The AAA’s Consumer Arbitration Rules, and any supplementary rules in effect at the time the arbitration is commenced, shall govern such arbitrations unless they are inconsistent with these Terms & Conditions, in which case these Terms & Conditions control. (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 demand for arbitration filed with the AAA must be individual to you, contain information specific to your Dispute, and be signed and include the handwritten signature of, as applicable, either you or a Sherwin-Williams authorized representative, depending on which party demands arbitration, and the signature of the initiating party’s attorney, if either you or Sherwin-Williams is represented by counsel. Any attorney signing a demand certifies, to the best of the person’s knowledge, information, and belief, formed after a reasonable inquiry, that: (i) the demand is not being presented for an improper purpose; (ii) the claims and legal contentions are warranted by existing law or are a non-frivolous argument for changing the law; and (iii) the factual contentions have or will likely have evidentiary support.
Any arbitration hearing will be conducted in a location reasonably convenient to the parties, by a single arbitrator, or as otherwise provided by the Consumer Arbitration Rules. 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. The arbitrator will have the authority to award the same relief that would be available in court under the applicable law for the Dispute, but any relief awarded in arbitration, including any injunctive or declaratory relief, must be consistent with the limitation of liability provisions set out in these Terms & Conditions and must be in favor of and applicable to only the individual party seeking relief, with no preclusive effect in Disputes with other parties. The arbitrator may not award relief for or against any person or entity not a party to the proceeding.
More information about the arbitration process is available at www.adr.org. You may opt-out of mandatory arbitration for each applicable Product sale transaction by sending us written notice (as set forth in Section 23(c)) with a copy of the purchase confirmation email or receipt and a request to opt-out of arbitration for that transaction within thirty (30) days of receipt of the purchase confirmation.
(e) Federal Arbitration Act. These Terms & Conditions affect interstate commerce, and the interpretation and enforceability of this dispute resolution provision will be substantively, procedurally and exclusively governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the maximum extent permitted by applicable law, except as modified by these Terms & Conditions.
(f) Confidentiality. Any arbitration will be confidential, and documents exchanged may not be used or shared outside of the arbitration process without the prior written consent of the parties or as required by law. Also, 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.
(g) Arbitration Fees and Costs. The filing party must pay the filing and other fees and costs of arbitration as provided by the applicable AAA Rules. Any arbitration fees and costs paid by a party are subject to fee- or cost-shifting to the other party, if the arbitrator determines that the matter is frivolous or brought for an improper purpose. Each party will 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 and costs in accordance with the applicable statute or written agreement. The arbitrator will resolve any dispute as to the reasonableness of fees or costs awarded under this paragraph.
(h) Multiple Individual Claims. Arbitration is intended to be an efficient and fair process for resolution of Disputes for both parties. It is, accordingly, a breach of this arbitration agreement and Terms & Conditions to bring or file an arbitration demand as part of a collection of multiple individual claims for the purpose of requiring the other party to incur excessive filing fees through the AAA or other arbitration provider. Should twenty-five (25) or more similar arbitration demands presented by or with the assistance or coordination of the same law firms or organizations be submitted to AAA or another arbitration provider against Sherwin-Williams within a thirty (30) day period (or otherwise in close proximity), then the parties will discuss, negotiate, and work in good faith with the AAA or other provider to develop effective, reasonable, and cost-efficient procedures that minimize filing and other fees to the parties in the arbitration but maintain individualized arbitrations of the Disputes.
(i) Litigation of Small Claims and Intellectual Property Disputes. Each party retains the right to: (i) elect to have any claims heard in small claims court on an individual (non-class, non-representative) basis for Disputes within the scope of such court’s jurisdiction, up to thirty (30) days after the party is given notice of the filing of an arbitration demand; and (ii) seek injunctive or other relief in any court of competent jurisdiction regarding any intellectual property dispute between the parties in which either party seeks injunctive or other equitable relief to prevent the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. You hereby irrevocably consent to jurisdiction and venue of the State, Federal, and other 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.
24. APPLICABLE LAW AND VENUE. You and Sherwin-Williams both agree that these Terms & Conditions constitute a written agreement executed by you and Sherwin-Williams governed by and construed in accordance with the laws of the State of Ohio, excluding (i) any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation to the substantive law of another jurisdiction, (ii) collections disputes, and (iii) the dispute resolution provision in Section 23 which shall be interpreted and enforced as set forth therein. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. If any legal action arises, whether directly or indirectly, from these Terms & Conditions (except collections disputes and those covered under Section 23) venue for such action shall be in Cleveland, Ohio, and each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Cleveland, Ohio.
25. 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.
(b) Severability. If any provision or a portion of a provision in these Terms & Conditions, including those relating to dispute resolution, is declared invalid or unenforceable for any reason other than over-breadth, only the offending provision shall be severed, and the remainder of the Terms & Conditions will be deemed to be binding and enforceable and modified so as to maintain the essential benefits of the bargain and original intent 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 a separate written agreement.
(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) Language. 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 unless otherwise prohibited by law.