Terms and Conditions
TERMS AND CONDITIONS OF SALE
Form # F4.3.01
(a) Any controversy arising out of or relating to this contract shall be settled by arbitration in the City of New York or the City of Charlotte, North Carolina, whichever shall be designated by Seller. If Seller designates the City of New York, the arbitration shall be held in accordance with the rules (then obtaining) of the American Arbitration Association or the General Arbitration Council of the Textile and Apparel Industry, as Seller may select. If the Seller designates Charlotte, North Carolina, the arbitration shall be held in accordance with the rules (then obtaining) of the American Arbitration Association. The arbitrators sitting in any controversy hereunder, shall have no power to alter or modify any express provision of this contract, including without limitation the provisions of paragraphs 10 and 10A applicable to Claims, or to render any award which by its terms effects any such alteration or modification. The arbitrators’ failure to observe this limitation shall constitute grounds for vacating their award. The arbitrator shall have no power to direct Seller to deliver or release merchandise to Buyer until Buyer has fulfilled all of its obligations to Seller under all of the contracts involved in the arbitration. The parties consent to the application of the New York, North Carolina or Federal Arbitration Statutes and to the jurisdiction of the Supreme Court of the State of New York, the Courts of North Carolina and the United States District Court of the District which has jurisdiction hereunder, for all purposes in connection with this agreement to arbitrate. Judgment upon the award rendered may be entered by any Court having jurisdiction thereof. The parties further consent that any process or notice of motion or other application to any of said Courts or to a Judge thereof may be served inside or outside the State of New York, or the State of North Carolina by registered or certified mail, return receipt requested, or by personal service, provided a reasonable time for appearance is allowed, or in such other manner as may be permissible under the Rules of any of said Courts. Any claim which Buyer may validly assert against Seller’s agent shall be asserted against Seller in the arbitration proceeding provided for herein, and Buyer waives any right to institute a separate action at law against Seller’s agent.
(b) The arbitrators may include in their award to the prevailing party (in addition to all other damages) an award of reasonable attorney’s fees and reimbursement for the other fees and costs in connection with all proceedings under this contract.
(c) Seller shall have all rights to provisional remedies which it would have at law or equity, notwithstanding the existence of this agreement to arbitrate.
(d) Buyer shall not be entitled to join, implead or intervene other parties or assert other disputes with Seller by offset, defense or counterclaim or by consolidation of proceedings or otherwise with any arbitration proceeding hereunder.
(e) Any claims arising under this contract which Buyer may validly assert against Seller’s agent shall be asserted against Seller in the arbitration proceeding provided for herein, and Buyer waives any right to institute a separate action at law against Seller’s agent.
(f) Any claim by Buyer of any kind, nature or description is barred and waived unless Buyer institutes arbitration proceedings within one (1) year after the claimed breach occurs. The failure to institute arbitration proceedings within this one year period shall constitute an absolute bar to the institution of any arbitration or other proceedings by Buyer and a waiver of all claims on Buyer’s part. All issues relating to Statute of Limitations barring or preventing the commencement of proceedings are not arbitrable and shall be determined by the Court and not the arbitrators, who shall have no power or jurisdiction to determine such issues. Participation in the arbitration shall not constitute a waiver of the Statutes of Limitations.
2. PAYMENT: All invoices are payable in United States dollars. No discount may be taken unless specified on the face of the contract. On any invoice not paid by maturity date, Buyer shall pay a service charge of eighteen percent (18%) per annum from the maturity date of said invoice, but in no event shall said service charge exceed the maximum lawful interest rate applicable. Any check or remittance received from or for the account of the Buyer may be accepted and applied by Seller or its factor against any indebtedness or obligation owing by Buyer, as shown by the books and records of Seller or its factor, without prejudice to or the discharge of the remainder of any such indebtedness or obligation, regardless of any condition, provision, statement, legend or notation appearing on, referring to, or accompanying such check or remittance.
3. CREDIT AND DEFAULT: Seller or its factor may, at any time and from time to time, in its sole discretion, limit, alter or cancel the credit of Buyer and, as a consequence, may declare payment due immediately in cash before delivery of any unfilled portion of this contract. Buyer represents and warrants to Seller that it is solvent at the time this contract is made and Buyer hereby makes a continuing representation and warranty of its solvency at the time of each tender of delivery or delivery hereunder. Upon failure of Buyer to make payment to Seller or Seller’s factor when due, or upon failure of Buyer to assort, specify or accept merchandise or in the event of any default, breach or repudiation by Buyer of this or any other contract with Seller, or if Buyer shall become insolvent, call a meeting of its creditors, or make a general assignment for the benefit of its creditors, or if a bankruptcy, insolvency, reorganization or arrangement proceeding shall be commenced by or against Buyer, Seller may:
(a) cancel this and/or any other contracts (or any part thereof) with Buyer (Buyer remaining liable for damages);
(b) defer any shipments or other tenders hereunder;
(c) declare forthwith due and payable all outstanding invoices to Buyer under this or any other contract;
(d) bill at contract price (or a cash before delivery basis if Seller so elects) all or any part of the merchandise covered by this or any other contract (Seller to have the right to assort, specify and/or complete the manufacture of any such merchandise) and require Buyer to specifically perform the contract by taking in and paying for such merchandise: in the case of merchandise not yet completed. Seller shall have the additional right to require payment at the contract price sixty (60) days prior to tender of such merchandise;
(e) sell all or any part of the merchandise covered by this or any other contract at public or private sale. Buyer is responsible for the costs and expenses of such sale including (i) ten percent (10%) of the contract price to cover Seller’s additional overhead, and (ii) any deficiency. Seller shall account to Buyer, subject to Seller’s security interest for any excess and Seller shall have the right to become the purchaser of such merchandise at any such sale;
(f) obtain damages from Buyer equal to the difference between the market price of merchandise covered by this or any other contract as of the date of default, breach or repudiation, and the contract price plus 10% of the contract price to cover Seller’s cost of reselling and additional overhead;
(g) sell in the open market, at auction or otherwise, any material or supplies purchased for the contract and Buyer shall be liable for any loss; and/or
(h) approval of credit for one or more installments (i.e., partial deliveries or tenders thereof) under this contract shall not be deemed a waiver of the provisions of this paragraph.
4. SECURITY INTEREST: BILL AND HOLD: Buyer hereby grants Seller a continuing security interest in all property at any time in the possession, custody or control of Seller (meaning also for the purpose of this clause, any parent, subsidiary or affiliate company of Seller) held for Buyer including without limitation goods covered by bill and hold invoices (whether paid for or not): said security interest shall secure Seller for all existing or future obligations of Buyer to Seller, howsoever arising, and may at Seller’s option be set off against any and all obligations of Buyer. Buyer agrees that any act on its part, either to sell, hypothecate or otherwise dispose of any interest in any goods described in this or any other contract with Seller, which are in the possession, custody or control of Seller, or any act on Buyer’s part to buy or acquire any interest in any goods in the possession, custody or control of Seller described in any contract of Seller with any third party without, in each case, receiving Seller’s written release, shall constitute a violation of and interference with Seller’s security interest established by this and/or any other such contract. The provisions of this clause shall survive performance by the parties of all other terms of this contract. Buyer authorizes Seller to release to a public warehouse, with all freight, storage and other charges for account of Buyer, all billed and held goods, and Buyer agrees to indemnify and hold Seller harmless from all claims or causes of action asserted against Seller after such goods have been so released. All goods billed and held for Buyer’s account are held at Buyer’s risk or loss or damage from theft or casualty, including sprinkler damage. Buyer should provide its own insurance coverage on goods billed and held under this contract.
5. SELLER’S REMEDIES: All rights and remedies of Seller under this contract shall be in addition to all other rights and remedies of Seller under any other contract, under the Uniform Commercial Code and other applicable law, all of which rights and remedies shall be nonexclusive and cumulative and may be exercised or asserted as Seller shall elect.
6. ASSORTMENTS AND SPECIFICATIONS:
Yarn: Buyer must specify assortments and complete specifications on or before any identified date(s) in the contract or, if no such date(s)is identified, then within the time provided in a request for an assortment or specification made by Seller to Buyer, and, in any case, in time for Seller to perform.
7. DELIVERIES (YARN):
(a) Delivery or tender of delivery of any installment within fifteen (15)days after date specified for delivery shall be deemed timely performance by Seller. Thereafter, shipment or other tender of delivery prior to receipt of written cancellation by Buyer shall constitute timely performance by Seller.
(b) The acceptance of shipment by a common carrier or truckman, the allocation of yarn to Buyer, or the mailing of an invoice by Seller to Buyer, shall constitute tender of delivery and performance by Seller. Thereupon, title shall pass to Buyer subject to (i) Seller’s rights under Article 2 of the Uniform Commercial Code, including but not limited to the rights to withhold or refuse delivery, stop in transit and/or reclaim: and (ii) Seller’s security interest in property in the possession, custody or control of Seller in accordance with Clause 4. With respect to yarn for which payment is to be made on or before delivery or tender, title passes only upon receipt of full payment. In the instance of yarn held subject to Buyer’s instructions, or for which Buyer has failed to supply shipping instructions, or in the case where Seller pursuant to this contract, determines that any part of the yarn purchased by Buyer should be held for Buyer’s account, Seller may invoice the yarn, and Buyer agrees to make payment at the maturity of the invoice so rendered. Yarn invoiced and held at any location, for whatever reason, shall be at Buyer’s risk and expense (and Seller may charge storage at prevailing rates).
(c) All freight, express and delivery charges shall be paid by Buyer without discount.
(d) Delivery or tender of a quantity which does not vary more than ten percent (10%) of the contract weight greater or less than contracted for shall constitute performance under this contract and payment shall be made on the actual pounds invoiced.
(e) Yarn shall be billed at scale weight and moisture content may not exceed those in ASTM current Standard Table of Commercial Moisture Regains for Textile Fibers, or it may be billed on a standard moisture regain basis as provided in the applicable ASTM Standard, and in either case, including processing lubricants and oils, but net of packaging and wrapping materials.
(f) Installments shall be accepted by Buyer and paid for at contract prices and terms. All samples furnished shall be paid for by Buyer at contract price. Delay in delivering samples or other sample requirements shall not constitute a breach of this contract. Any defect in quality or delay in performance by Seller shall not affect the balance of this contract. Any installment of yarn not in dispute shall be paid for on the due date, as provided in this contract, without offset, defense or counterclaim and regardless of controversies relating to other yarn. Where Buyer has declared or manifested an intention that it will not accept yarn in accordance with the provisions of this contract no tender shall be necessary but Seller may, at its option, give notice in writing to Buyer that Seller is ready and willing to perform in accordance with this contract and such notice shall constitute valid tender of delivery and performance by Seller.
(g) Seller shall not be liable if any aspect of performance by Seller under this contract is delayed or prevented due to casualty, accident, labor disturbance, embargo, lack of shipping facilities, delay or inability to obtain supplies, labor, raw materials or energy through Seller’s usual and regular sources, fires, floods, war, governmental requests, requirements or regulations or by Seller’s acceptance of government contract or subcontracts, Act of God or any cause or circumstance whatsoever (whether like or unlike the foregoing) beyond Seller’s control. In such event, Seller may, in its discretion: (i) extend Seller’s time for performance for a time which is reasonable under all of the circumstances; (ii) cancel all or any portion of this and any other contract with Buyer; or (iii) apportion Seller’s available supply among its customers in any reasonable manner. If embargo or lack of shipping facilities prevents or delays shipment of any yarn ready for shipment. Seller may immediately invoice the yarn, at which time title to the yarn shall pass to Buyer (subject to Seller’s rights referred to herein), and Seller shall hold the yarn for the account of Buyer, who shall pay the invoices rendered when due. Buyer shall not be entitled to damages for late delivery or nonperformance unless buyer actually purchases the same merchandise elsewhere at a higher price (which is the fair market price).
8. EXCLUSION OF WARRANTIES (YARN):
(a) BUYER AGREES THAT THERE IS NO WARRANTY BY SELLER, IN FACT OR IN LAW, THAT THE YARN WHICH IS THE SUBJECT OF THIS SALE IS SUITABLE FOR ANY PARTICULAR USE OR PURPOSE AND AGREES THAT THE SUITABILITY OF THE YARN FOR ANY USE IS THE SOLE RESPONSIBILITY OF BUYER, TO BE ASCERTAINED BY BUYER’S SAMPLING AND TESTING. WARRANTY OF MERCHANTABILITY IS LIMITED TO YARN SOLD AS FIRST QUALITY. SELLER MAKES NO WARRANTY EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION AS TO; (i) FASTNESS OF COLOR OR UNIFORMITY OF SHADE FROM LOT TO LOT; (ii) BREAKING STRENGTH; (iii) SHRINKAGE; (iv) YIELD; (v) ABSENCE OF MINOR CONTAMINATION; (vi) PHYSICAL OR CHEMICAL QUALITIES; AND (vii) USUAL OR ORDINARY VARIATION IN THICKNESS, SIZE OR COUNT OR TPI IN YARN.
(b) SELLER SHALL NOT BE LIABLE FOR NORMAL MANUFACTURING DEFECTS OR FOR CUSTOMARY VARIATIONS FROM SPECIFICATIONS. ANY YARN MADE IN PART OR WHOLLY OF MAN-MADE FIBERS IS SOLD SUBJECT TO THE INHERENT IMPERFECTIONS IN SUCH MAN-MADE FIBERS, INCLUDING WITHOUT LIMITATION ITS POTENTIAL FOR PILLING OR CAUSING PILLING.
(c) EXACT MATCHES OF COLOR ARE NOT GUARANTEED, NOR IS PERCENTAGE OF TYPE OF SIZING, WAS AND/OR LUBRICANT USED. YARN MAY VARY IN SHADE, LUBRICANT, SIZING OR WAX CONTENT, AND SELLER ASSUMES NO RESPONSIBILITIES FOR SUCH VARIATIONS.
(d) SELLER ASSUMES NO RESPONSIBILITY FOR IMPERFECTIONS DUE TO INSUFFICIENT REMOVAL OF GUMS, WAXES, YARN SIZING MATERIALS, TINT, LUBRICANT OR OTHER STAINS WHICH CAN BE REMOVED IN BOIL-OFF, SCOURING, DYEING OR OTHER FINISHING PROCESSES, OR FOR LATENT DEFECTS INHERENT IN THE RAW MATERIALS USED.
(e) IN NO EVENT SHALL THE SELLER BE LIABLE FOR PUNITIVE DAMAGES.
9. BUYER’S TESTING: It is Buyer’s obligation, in advance of purchase and before putting new merges or other lots into production, to determine in each case that the merchandise purchased is satisfactory for Buyer’s particular use. To meet Buyer’s obligation, sample runs and tests should be made in the dyeing, weaving, knitting, tufting or other processing and finishing of the yarn or fabric made therefrom to the point that Buyer finds that the merchandise is satisfactory for all of Buyer’s requirements, processes and production.
10. CLAIMS (YARN):
(a) ALL CLAIMS OF ANY KIND, NATURE OR DESCRIPTION ARE BARRED AND WAIVED UNLESS MADE IN WRITING, AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED THE YARN AND ITS RIGHT TO CANCEL, REJECT OR CLAIM DAMAGES SHALL EXPIRE UNLESS BUYER’S WRITTEN AND PARTICULARIZED CLAIM IS RECEIVED BY SELLER (i) WITHIN TEN (10) DAYS FROM THE DATE OF TENDER IF THE CLAIM RELATES TO WEIGHT OR EXCESSIVE MOISTURE OR LUBRICANT CONTENT, WHICH CLAIM SHALL BE REFERRED TO AN INDEPENDENT TESTING LABORATORY, WHOSE TEST REPORT SHALL BE MADE ON PREVIOUSLY UNOPENED CASES OR OTHER CONTAINERS OF YARN AND WHICH TEST SHALL BE CONCLUSIVE; OR (ii) WITHIN FORTY-FIVE (45) DAYS FROM DATE OF TENDER IF THE CLAIM RELATES TO COUNT, TWIST OR SHADE VARIATIONS OR OTHER ELEMENTS OF QUALITY. WHERE SELLER HAS TENDERED THE YARN AND BUYER HAS LEFT THE YARN IN SELLER’S POSSESSION, BUYER HAS THE RIGHT TO TEST THE YARN IN A REASONABLE MANNER. IN NO CASE WILL ANY CLAIM BE CONSIDERED AFTER YARN HAS BEEN DYED, WOVEN, KNITTED, TUFTED OR PROCESSED IN ANY MANNER, EXCEPT THAT IF THE ARBITRATORS MAKE AN EXPRESS FINDING IN THEIR AWARD THAT THE CLAIMED DEFECT WAS NOT OR COULD NOT HAVE BEEN DISCOVERED THROUGH TESTING ACTUALLY CONDUCTED BY BUYER AS REQUIRED BY CLAUSE 9 HEREOF, AND THAT UPON DISCOVERY, BUYER MADE WRITTEN CLAIM TO SELLER PROMPTLY THEREAFTER, SUCH CLAIM WILL NOT BE BARRED PROVIDED THAT AN ARBITRATION PROCEEDING WAS COMMENCED WITHIN ONE (1)YEAR AFTER THE CLAIMED BREACH OCCURS.
(b) WITHIN THIRTY (30) DAYS AFTER RECEIPT OF WRITTEN NOTICE OF CLAIM FOR DEFECTS IN YARN, BUYER SHALL MAKE THE YARN AVAILABLE FOR INSPECTION BY SELLER AT A POINT IN THE CONTINENTAL UNITED STATES DESIGNATED BY AND WITHOUT COST TO SELLER. FAILURE TO DO SO CONSTITUTES ACCEPTANCE AND WAIVER OF ALL CLAIMS FOR DEFECT. SELLER MAY, IN ITS DISCRETION, EXAMINE AND ACCEPT SUCH YARN FOR RETURN OR MAKE ALLOWANCES AGREEABLE TO BOTH PARTIES. IF THE YARN IS ACCEPTED FOR RETURN, SELLER, AT IT’S OPTION, MAY REPLACE THE YARN WITHIN A REASONABLE TIME IN FULL SATISFACTION OF ALL CLAIMS OF BUYER
(c) THE LIMIT OF SELLER’S LIABILITY FOR DEFECTIVE YARNS SHALL BE THE DIFFERENCE, IF ANY, IN VALUE ON THE CONTRACT DATE FOR PERFORMANCE BETWEEN THE YARN SPECIFIED AND THE YARN ACTUALLY TENDERED OR DELIVERED. THE LIMIT OF LIABILITY OF SELLER FOR LATE OR NONPERFORMANCE SHALL BE THE DIFFERENCE, IF ANY, BETWEEN THE CONTRACT PRICE AND THE FAIR MARKET PRICE ON THE CONTRACT DATE FOR PERFORMANCE OF THE YARN IN QUESTION. IN NO EVENT SHALL BUYER BE ENTITLED TO CLAIM OR RECEIVE ANY CONSEQUENTIAL, INDIRECT, AND/OR, SPECIAL DAMAGES OF ANY NATURE FOR DEFECTIVE GOODS OR LATE OR NONPERFORMANCE OR OTHERWISE, AND IN NO INSTANCE MAY DAMAGES INCLUDE LOSS OF PROFIT ON CONTEMPLATED USE OR PROFIT OF ANY DESCRIPTION.
(d) NOTWITHSTANDING ANY CONTRARY PROVISION IN ANY CONTRACT, PURCHASE ORDER, INVOICE OR OTHER DOCUMENT OF BUYER, SELLER, INCLUDING ITS AGENTS, REPRESENTATIVES OR OTHERWISE SHALL NOT AND DOES NOT ACCEPT, ASSUME OR UNDERTAKE ANY RESPONSIBILITY OR LIABILITY TO INDEMNIFY, DEFEND, SAVE OR HOLD HARMLESS ANY OTHER PERSON, FIRM OR PARTY FROM OR AGAINST ANY LOSS, DAMAGE OR INJURY REGARDLESS OF ANY LANGUAGE BY WHICH SUCH ACCEPTANCE, ASSUMPTION, OR UNDERTAKING PURPORTS TO BE EXPRESSED OR IMPLIED. BUYER AGREES TO SAVE SELLER HARMLESS AND INDEMNIFY IT AGAINST ANY CLAIMS OF THIRD PERSONS FOR INJURIES OR DAMAGES RESULTING IN WHOLE OR IN PART FROM FAULT OF BUYER IN THE MANUFACTURE OR SALE OF THE PRODUCT MADE FROM THE GOODS COVERED BY THIS CONTRACT.
(e) IN NO EVENT SHALL SELLER BE LIABLE FOR PUNITIVE DAMAGES.
11. BEAMS, WARPS, ETC: All spools, tubes, section beams, loom beams, beam racks, beam cases and other special shipping units owned by Seller shall remain Seller’s property and shall be included in invoice at theoretical weight, but Seller guarantees actual weight: will be within 2% of theoretical weight. Buyer shall be responsible for their loss or damage from any cause and within forty-five (45) days from the date of shipment shall reship said articles in good condition to Seller, freight prepaid. For any such property damaged or not reshipped within said time, Buyer shall pay Seller the cost of replacement.
12. PRICES: Price on this contract are based upon costs to Seller (as of the date of this contract) from Seller’s customary sources of raw materials and energy. Prices on any unfilled portion of this contract are subject to increase to the extent of added costs to Seller for raw materials, energy, or increases to the extent of added costs of governmental action or legislation. The amount of any such increase as computed by Seller shall be binding upon Buyer except for clerical or mathematical errors.
13. PATENTS: Seller, at its option, may cancel this or other contracts with Buyer for the sale of any products, the manufacture, sale or use of which, in Seller’s opinion, infringes any patent under which Seller is not licensed. Buyer agrees to hold Seller harmless against all damages and expenses arising from claims for infringement of patent rights on materials specifically produced at Buyer’s request and against all damages or expenses arising from any infringement or from any misuse of any trade name, trademark, symbol, identification of material content or other labeling used by Seller at Buyer’s instructions.
14. TECHNICAL ADVICE: Seller may, upon Buyer’s request, furnish technical advice without charge, with respect to the merchandise sold, hereunder, to the extent that Seller has such advice conveniently available. However, it is expressly understood by Buyer that Seller is under no obligation to furnish technical advice and it is further understood by Buyer that such advice is given by Seller and accepted at by Buyer at Buyer’s sole risk. Under no circumstances shall Seller be responsible to Buyer, or liable, for the advice or assistance given or the results thereof.
15. NOTICES: All communications provided for hereunder shall be in writing and if to Seller, mailed or delivered to Seller at the address stated on the face hereof, or to such other address as Seller may designate, or if to Buyer, mailed or delivered to Buyer at its address designated on the face of this contract or at such other address as Buyer may hereafter designate.
16. CHANGES: This contract contains all of the terms and conditions of the contract between Buyer and Seller. It may not be altered or modified by Buyer except in writing, signed by Seller. No waiver by either party of any default shall be deemed a waiver of any subsequent default. There are no options, warranties or conditions, express or implied, statutory or otherwise, except those herein specifically contained.
17. ASSIGNMENT: No rights of Buyer under, or arising out of, this contract may be assigned without the express written consent of Seller.
18. FUTURE TRANSACTIONS: Except to the extent a future transaction is governed by a signed contract between the parties. the terms and conditions hereof, including without limitation, the arbitration provisions, shall govern all future transactions.
19. APPLICABLE LAW: The construction and application of these terms and conditions shall be determined by applicable arbitration law, supplemented as necessary, by the law of the State of New York.
20. OTHER PROVISIONS: Sales of merchandise by the Seller shall further be subject to the Yarn Rules of the American Yarn Spinner’s Association, Inc., which provides for arbitration of disputes. In the event of a conflict, the terms of this document govern.