1. CHOICE OF LAW
This contract shall be interpreted under and governed by the laws of the State of Tennessee without regard to its choice of laws principles. Any actions or proceedings arising out of this contract or performance thereunder shall be instituted and prosecuted only in the state or federal courts located in the City of Nashville, Tennessee. Each party specifically consents to service of process by and the jurisdiction of those courts. The United Nations Convention on Contracts for International Sale of Goods shall not apply to this contract.
2. PASSING OF TITLE/RISK OF LOSS/SHIPPING
Title of goods shall pass to Buyer and thereafter such goods shall be at Buyer’s risk of loss as follows:
a. For goods sold EXW (as defined by Incoterms 2000) at Seller’s shipping points (and regardless of which party pays for shipping), upon release to Buyer’s initial carrier, subject to Seller’s right to stoppage in transit.
b. If strike, embargo or any other force majeure event beyond Seller’s control prevents delivery of goods to Buyer, its agent or designee, or delivery to a carrier, as soon as goods have been set aside by Seller or its agent, together with the mailing of a covering invoice. In such event, payment shall be made in accordance with invoice as though goods had been shipped.
c. For goods ordered “held” or for which Buyer has failed to supply shipping instructions, upon the assembling of the goods and the holding thereof subject to Buyer’s order, together with the mailing of covering invoice.
d. For goods for which payments to be made on or before delivery, upon receipt of full payment.
e. For goods billed and awaiting shipment, upon mailing of covering invoice.
Unless otherwise noted on the Acknowledgment, the standard method of delivery of the goods shall be EXW (as defined by Incoterms 2000) at Seller’s factory. Any claims for loss, breakage, shortage or damage to goods suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any good for which Buyer has not provided shipping instructions. If the shipment of the goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.
3. TERMS OF CREDIT/PAYMENT
Payment for goods shall be due thirty (30) days from the date of invoice or as otherwise noted on the face hereof. This sale is subject to a limit of credit determinable at any time by Seller. If any payments are past due or if the financial condition of Buyer becomes impaired or unsatisfactory to Seller, Seller may, in its sole discretion, demand cash payments or satisfactory security in advance of further shipments. If Buyer fails to make such cash payment or provide satisfactory security within ten (10) days after such request has been made by Seller, Seller may at its option cancel this contract claiming damages therefore and in addition to its other rights provided by law, Seller may sell at public or private sale all or any portion of the undelivered merchandise which has been specially manufactured for Buyer, without notice, holding Buyer responsible for the difference between the contract price and the amount received on such sale, together with the costs and expenses of such sale. Buyer shall make no deductions or offsets from the payments due to Seller for the goods, whether for alleged damages or any other cause. If Buyer fails to pay an invoice when due, Seller may in its sole discretion and without prejudice to any other remedy it may have under law or equity, postpone shipments, alter payment terms for all current orders irrespective of the terms thereof, terminate this contract and/or charge interest on all overdue amounts at a rate of up to 18% per annum, not to exceed the amount permitted by applicable federal or state. Upon demand, Buyer shall pay all such interest charges and all reasonable collection fees, including reasonable legal expenses.
(a) The price of the goods invoiced to Buyer shall be Seller’s list price for such goods on the invoice date. Quoted prices for goods are subject to change without notice at any time prior to the invoice date.
(b) Prices are EXW (as defined by Incoterms 2000) Seller’s factory unless otherwise noted. Buyer shall reimburse Seller for all taxes, excise or other charges, which Seller may be required to pay to any government (national, state or local) upon the sale, production or transportation or of goods sold hereunder.
5. LIMITED WARRANTY
Subject to the limitations of this Section and Section 7 hereinafter, Seller warrants the goods to be of the kind and type specified and to be free of encumbrances in title. Goods made from natural or man-made fibers, or a combination of both, are sold subject to any imperfections or variables in such fiber over which Seller has no control and exact matches of color are not guaranteed. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PUPROSE.
THE GOODS ARE WARRANTED ONLY TO BE OF THE KIND DESCRIBED. NO OTHER WARRANTY IS MADE WITH RESPECT TO THESE GOODS AND SELLER EXPRESSLY DISCLAIMS ALL OTHER EXPRESS WARRANTIES OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SUCH GOODS ARE BEING SOLD BY SELLER AND PURCHASED BY BUYER “WHERE IS,” “AS IS,” AND “WITH ALL FAULTS.”
SELLER SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY DAMAGES ARISING OUT OF NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION AND SELLER SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE.
Buyer assumes all risks and liabilities for the results obtained by the use in its manufacturing process, or otherwise, of any of the goods delivered under this contract, including, without limitation, use of such goods in combination with other substances. Buyer acknowledges that Seller has not made and will not make any representations or warranties to Buyer concerning the use of the goods in Buyer’s manufacturing process, by Buyer’s customers or in combination with any other substances and Buyer shall indemnify and hold harmless Seller for any damage, claim or suit arising out of Buyer’s use of the good in its manufacturing process.
Buyer’s sole and exclusive remedy and Seller’s sole liability hereunder, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall be limited to, at Seller’s option, replacement or reimbursement of the purchase price, plus shipping, of goods for which a claim has been made under this Section 5 and Section 7 of these Terms & Conditions and which has been shown to Seller’s satisfaction to be nonconforming at the time delivered by Seller to the initial carrier. Seller’s obligations hereunder shall not be enforceable until the goods have been paid for in full. Notwithstanding anything to the contrary contained herein, Seller shall not have any liability hereunder for goods that shall have been altered or repaired or improperly maintained or which have been subjected to abrasion, corrosion, misapplication, misuse, negligence or accident after shipment to Buyer.
Except for changes specifically agreed to in writing signed by a duly authorized representative of Seller, no agent or representative of Seller is authorized to change this warranty or to give any other warranty, express or implied, and no such agent or representative is authorized to make any representations concerning Seller’s goods which are not subject to the qualifications and to the limitations of liability herein expressed.
6. DESIGN PROTECTION, TRADEMARKS AND TRADE NAMES
No rights in patterns or designs of goods covered by this contract are passed to Buyer, except as an integral part of the goods. Buyer agrees not to copy, reproduce or cause to be copied or reproduced either directly or indirectly, any such patterns or designs. No right to use any trademark or trade name of Seller is passed to Buyer under this contract and Buyer agrees not to use either directly or indirectly any of Seller’s intellectual property, unless specifically authorized in writing by Seller. Buyer will hold Seller harmless from and will indemnify Seller against any and all claims, demands, liabilities, damages, costs and expenses connected with any claim of patent infringement arising out of or resulting from the manufacture by Seller of goods in accordance with designs or specifications which Buyer furnished to Seller.
(a) Subject to the limitations set forth in Section 5 of these Terms & Conditions, Seller shall only consider making refunds or replacements if a claim is determined by Seller to be valid and is made in writing by Buyer to Seller: (i) within 30 calendar days after shipment date in the case of claims for shortages, error in shipment or defects visible under reasonable examination; (ii) within 120 calendar days from shipment date in the case of defects not apparent upon reasonable examination; or (iii) within 60 calendar days after shipment date in the case of any and all other claims.
(b) If Buyer notifies Seller in writing of a claimed nonconformity within the applicable periods of time specified immediately above, and before the goods have been processed or changed in any way, Buyer shall, at the same time, afford Seller prompt and full opportunity to examine the goods in the same condition as when delivered to Buyer. Buyer’s failure to do so shall constitute acceptance of the goods and waiver of any claims by Buyer which shall thereafter be entitled to no reduction allowance or claim based upon or relating to such goods.
(c) Notwithstanding the foregoing, further processing or in any way changing the form of goods constitutes acceptance and a waiver by Buyer of any right to cancel, reject or claim damages for any nonconformity.
(d) Goods may be returned to Seller only when specifically authorized by Seller in writing. If a return is authorized by Seller, Buyer will be charged for (i) placing returned goods in saleable condition and any sales expenses then incurred by Seller (ii) a restocking charge of 15% and (iii) any outgoing and incoming transportation costs relating to such return.
(e) Any nonconformity or delay in deliveries shall affect only the particular portion so affected, and Buyer shall not be relieved of its obligation to accept the balance of deliveries. Seller shall not be liable to Buyer for any damages claimed resulting from delay in delivery of the goods unless time of delivery is expressly stated herein to be of the essence.
(f) Any action by Buyer for breach of contract must be commenced within one (1) year after the cause of action has accrued.
(a) Buyer may only cancel any order previously accepted and acknowledged by Seller by providing Seller a written order cancellation request and receiving Seller’s written cancellation authorization, which Seller may provide or withhold in its sole discretion.
(b) Notwithstanding Section 8(a) hereof, if Buyer cancels an order within thirty (30) days of the agreed shipping date, Seller may charge Buyer a cancellation charge of up to 100% of the amount of the cancelled order. If Buyer cancels an order in excess of thirty (30) days of the agreed shipping date, Seller may charge Buyer a cancellation charge based upon (i) Seller’s actual costs of labor, materials and supplies applied to the production of such goods, (ii) Seller’s overhead expenses, and (iii) an additional fee equal to fifteen percent (15%) of such costs and expenses. Expenses may include charges that are contractually imposed on Seller by its suppliers or subcontractors. Buyer shall pay all cancellation charges within thirty (30) days from date of invoice.
9. FORCE MAJEURE
No liability shall result from failure or delay in performance by Seller due to any causes beyond its control, including, but not limited to, Acts of God, fire, accident, flood, explosion, war, acts of terrorism, labor dispute, civil disturbances or riots, transportation or supply difficulties, interruption of its facilities, equipment malfunctions, or breakdowns, or any act of governmental authority, or any other unforeseen circumstances or events beyond Seller’s reasonable control (a “force majeure”). In the event of a force majeure, the time during which Seller may perform will be extended during the continuance of such condition and for a reasonable time thereafter, and Seller may, in its discretion allocate deliveries against orders, without regard to priority of acceptance, until normal conditions are restored. Seller shall have no obligation to purchase supplies of goods specified herein to enable Seller to perform hereunder. If the force majeure shall prevent performance permanently or for an unreasonable length of time, then Seller shall be excused from performance.
10. INSTALLMENT SHIPMENTS
If installment shipments are specified and if Buyer refuses or asks for postponement of any scheduled installment shipment, the Seller may, at its option, cancel any such installment shipment so refused or postponed. If Buyer refuses to accept and Seller refuses to postpone deliveries of 10% or more of the installment shipments as specified on the face hereof, Seller may, at its option, in addition to any other remedies it may have, cancel the undelivered balance of the contract.
No course of dealing between Seller and Buyer or delay in exercising any right herein shall operate as a waiver of any right hereunder and any waiver by Seller of a breach by Buyer of any provision herein shall not be deemed a waiver of future compliance therewith and such provision as well as all other provisions hereunder shall remain in full force and effect
12. TEXTILE FIBER PRODUCTS
Unless otherwise specified on the face hereof, the goods to be furnished are not intended for uses subject to the Textile Fiber Products Identification Act and, in the event Buyer uses or further manufactures the goods for any use subject to such Act, Buyer agrees to comply with all provisions of such Act and indemnify and hold harmless Seller for any violations of such Act.
This contract contains all the terms and conditions with respect to the sale and purchase of the goods to which it relates and cannot be modified or amended in whole or in part except as agreed to in writing by an authorized representative of Seller.
The headings in this contract are inserted only as a matter of convenience and for reference and in no way define, affect or limit, or describe the scope or intent of this contract. If any part of this contract is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. This contract is not assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller.