Terms and Conditions of Sale

1. Acceptance; Entire Agreement. EXCEPT AS OTHERWISE AGREED IN A WRITTEN AGREEMENT SIGNED BY BOTH SELLER AND THE BUYER (“BUYER”), THESE TERMS AND CONDITIONS OF SALE (THESE “TERMS”), TOGETHER WITH ANY SALES DOCUMENTS ISSUED BY SELLER (COLLECTIVELY, A “CONTRACT”) WILL GOVERN THE BUYER’S PURCHASE OF PRODUCTS (THE “PRODUCTS”) AND/OR SERVICES (THE “SERVICES”) FROM SELLER. ACCEPTANCE BY SELLER OF BUYER’S ORDER FOR PRODUCTS (WHETHER SUCH ORDER IS WRITTEN, ORAL OR ELECTRONIC) IS EXPRESSLY CONDITIONED UPON BUYER’S AGREEMENT THAT THESE TERMS SHALL BE THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS APPLICABLE TO A CONTRACT. OTHER THAN BUYER’S ACCEPTANCE OF THESE TERMS, SELLER SPECIFICALLY REJECTS, AND BUYER DISCLAIMS, ALL TERMS AND CONDITIONS IN BUYER’S REQUEST FOR QUOTATION, PURCHASE ORDER, OR OTHER DOCUMENTATION IF SUCH TERMS AND CONDITIONS ARE ADDITIONAL TO, DIFFERENT FROM OR INCONSISTENT WITH THESE TERMS. ANY PERFORMANCE BY SELLER PURSUANT TO BUYER’S PURCHASE ORDER, INCLUDING, WITHOUT LIMITATION, MANUFACTURE OR SHIPMENT OF PRODUCTS, SHALL BE DEEMED TO BE AN ACCEPTANCE SOLELY UPON THESE TERMS. For purposes of these Terms: “Seller” means the Elevate Textiles, Inc. subsidiary (for example, American & Efird LLC, Burlington Industries LLC, Cone Denim, LLC or Safety Components Fabric Technologies, Inc.) identified as the seller on the applicable Sales Document; “Sales Document” means any quotation, order confirmation, order acknowledgment, invoice, or similar commercial document issued by Seller in connection with the sale of Products or Services; “Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with Seller; “Domestic Buyer” means a Buyer organized under the laws of, and with its principal place of business in, the United States; and “International Buyer” means any other Buyer. These Terms apply to each such entity individually with respect to its own sales, and only the entity so identified shall be the “Seller” and a party to the resulting Contract; no other Elevate Textiles entity shall be a party to, or have any liability under, that Contract. Affiliates are not parties to any Contract, but are intended third-party beneficiaries of, and entitled to enforce, the warranty disclaimers, exclusions and limitations of liability, and confidentiality and intellectual property provisions of these Terms.
2. Specifications. The specifications applicable to the Products sold pursuant to these Terms shall be Seller’s standard specifications or, in the case of items other than Seller’s standard Products, such specifications as agreed to in a writing signed by Seller and Buyer (collectively, the “Specifications”).
3. Acceptance of Products. Upon receipt of shipment, Buyer shall immediately inspect the Products. Unless Buyer notifies Seller in writing within ten (10) days after receipt of any claim for overages or shortages exceeding 10% or defects in the Products, such Products shall be deemed to be finally inspected, checked and irrevocably accepted by Buyer. Seller shall have the right to cure any overages or shortages exceeding 10% or defects in the Products within a reasonable time after receipt of Buyer’s timely claim. Any fault in delivery, weight, yardage or quality on any other shipment shall not affect this sale or any of Buyer’s obligations under this sale. All overages or shortages not exceeding 10% of the quantity of units to be delivered under this sale shall be deemed to be satisfactory and shall not form the basis for rejection of the Products, a right to demand a cure from Seller, or a Warranty Claim (as defined below) hereunder.
4. Returns. Buyer shall not cancel, revoke acceptance of or return Products except for claims arising under the Limited Warranty below. No Products may be returned for credit without Seller’s express written permission, as evidenced by the issuance of a return authorization. Risk of loss or damage to Products returned to Seller shall remain with Buyer until they are received by Seller.
5. Title; Risk of Loss. Unless expressly stated otherwise in a document issued by Seller, all deliveries of Products are EXW (Incoterms 2020), the facility stated by Seller in its Sales Document (the “Delivery Point”). All risk of loss of and title to Products shall pass to Buyer upon delivery of the Products EXW (Incoterms 2020) or such other delivery terms stated by Seller in its Sales Document at the Delivery Point. If Buyer does not take delivery of the Products within one (1) business day after Seller notified Buyer that the Products are ready for pickup at the Delivery Point, Seller may, in its sole discretion, store the Products at Buyer’s sole risk of loss until Buyer picks the Products up, and Buyer shall be liable for all related costs and expenses (including storage and insurance).
6. Payment Terms. Payment in full is due from Buyer in accordance with the terms set forth on the face of Seller’s invoice. A service charge shall accrue on all past due accounts at the rate of 1.5% per month (18% per annum) or the highest rate allowed by applicable law, whichever is less. Each shipment of Products is to be treated as a separate and independent transaction for purposes of payment and settlement of claims.
7. Price; Price Adjustment. Prices are those stated in Seller’s applicable Sales Document and are firm for twelve (12) months from the date of first shipment (the “Firm Period”). Following the Firm Period, and not more than once per calendar quarter, Seller may adjust prices upon sixty (60) days’ prior written notice to Buyer if Seller’s aggregate cost to produce or supply the Products - including raw materials, energy, labor, freight, or Transaction Taxes (as defined below, including tariffs, duties, and other trade measures) has increased by five percent (5%) or more since the prices were last established. At Buyer’s written request, Seller will provide reasonable supporting documentation of the cost increase, and the parties will negotiate the adjustment in good faith.
8. Termination for Failure to Agree. If the parties do not agree on a price adjustment proposed under the Section titled “Price; Price Adjustment” within thirty (30) days after Seller’s adjustment notice, either party may terminate the affected Contract(s) or product line(s) upon sixty (60) days’ prior written notice to the other party. During the notice period, the pre-adjustment price shall prevail, and Buyer shall remain obligated for all accepted orders and for any Products already made or in transit for Buyer. Termination under this Section shall not constitute a breach of, or default under, these Terms and shall give rise to no liability or claim for damages (including lost profits or business interruption) by either party arising solely from such termination.
9. Taxes. Unless otherwise specifically provided on the face of an acceptance or acknowledgment from Seller, the prices for the Products purchased do not include sales, use, excise or similar taxes, whether federal, state or local, and including tariffs, duties or other governmental assessments arising out of the purchase of Products or Services (collectively, “Transaction Taxes”). All Transaction Taxes shall be the obligation of and paid by Buyer. If Seller pays any Transaction Taxes or shipping and handling fees, Buyer will promptly reimburse Seller. Buyer is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt any sale from liability for Transaction Taxes.
10. Delays. All shipping dates are approximate based on current availability of materials, production schedules and prompt receipt of all necessary information from Buyer and are in no way delivery timeline guarantees by Seller; the ultimate delivery date and time in transit are solely dependent on Buyer’s location and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason. Buyer may request expedited delivery, although Seller makes no guarantees as to the availability of goods or a delivery date. Seller reserves the right to charge any costs associated with expedited delivery to Buyer, should Seller accept any expedited delivery requests in writing. Seller shall not be liable for any delay in the delivery of Products or performance of Services caused in whole or part by a supplier, contractor or agent of Seller; by a Force Majeure Event (as defined below); or by Buyer or its affiliates, suppliers, contractors or agents, including requests for modifications to any sales terms or Buyer’s failure to provide Seller with adequate delivery instructions, or any other instructions that are relevant to the design, production or delivery of Products or performance of Services.
11. Limited Warranty. Subject to the Additional Exclusions from Warranty below, Seller warrants that (i) the Products shall materially comply with the Specifications for a period of twelve (12) months from the date of shipment (the “Product Warranty Period”) and (ii) when Services are performed, Services will have been performed in a workmanlike manner in accordance with generally recognized industry standards in the United States for similar services (collectively, the “Limited Warranty”). Unless expressly stated otherwise in a writing signed by Seller, the Limited Warranty for Products shall expire at the end of the Product Warranty Period or six (6) months after Seller has performed Services (each, a “Warranty Period”). This Limited Warranty extends to Buyer only, and not to any resale customer of Buyer or end consumer, and is non-transferable. In the event of a Product resale by Buyer, Buyer is solely responsible for any and all warranties and other claims resulting from Products and for any representations or warranties made by Buyer to its customers and any end-customers. Buyer must give Seller detailed written notice of any Products or Services which Buyer alleges do not conform to the Limited Warranty, stating the alleged non-conformities (each, a “Warranty Claim”). Any Warranty Claim must be made within fifteen (15) days after Buyer is aware of the alleged non-conformity and, in any event, within the Warranty Period. The Limited Warranty expires when, and no claims may be made after, the Warranty Period ends. Buyer will follow Seller’s then current Warranty Claims process. At Seller’s request, Buyer will allow Seller access to the Products to inspect the Products and Services and evaluate the alleged non-conformity and, upon request of Seller, will return, at Buyer’s expense, any alleged non-conforming Product to a location designated by Seller for Seller to inspect the Products and evaluate the alleged non-conformity. For any Products that Seller determines do not conform to the Limited Warranty, Seller’s sole liability and obligation, and Buyer’s sole and exclusive remedy, will be, at Seller’s choice, in its sole discretion and within a reasonable time, to replace such Product or provide a refund for such Product. For any Services that Seller determines do not conform to the Limited Warranty, Seller’s sole liability and obligation, and Buyer’s sole and exclusive remedy, will be, at Seller’s choice, to correct or repeat such Services, or refund the amount charged by Seller for such Services. OTHER THAN THE LIMITED WARRANTY, SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12. Additional Exclusions from Warranty; Limitation on Liability. The Limited Warranty shall not apply and does not cover (i) adverse storage or environmental conditions, including without limitation, outdoor storage, excess humidity, wide fluctuations in temperature, or prolonged exposure to direct sunlight; (ii) deterioration or damage due to excessive or abusive use or any casualty event, including any Force Majeure Event; (iii) use under circumstances or resale for uses exceeding the Specifications or limitations or contrary to any instructions or information from Seller; (iv) defects or failures of Products sold or Services performed arising from, in whole or part, Buyer’s instructions, information, design, plans or other non-Seller Specifications; (v) any warranties or representations given by Buyer on resale of Products or use of Services; (vi) repackaging or rebranding; (vii) modification or alteration of Products or Services; (viii) unsuitable operating equipment or media; or (ix) chemical, electrochemical or electrical influences. Seller makes no warranty, express or implied, 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; or (vi) physical or chemical qualities. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER RESULTING FROM A CLAIM BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE. IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE LIABLE FOR DAMAGES TO GOODS OR MATERIALS PROCESSED IN OR HANDLED WITH THE PRODUCTS. THESE TERMS CONTAIN BUYER’S SOLE AND EXCLUSIVE REMEDIES RELATING TO THESE TERMS, A BREACH OF THESE TERMS, THE PRODUCTS OR THE SERVICES, REGARDLESS OF THE THEORY OF RECOVERY. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION ARE INDEPENDENT OF, AND SHALL SURVIVE AND CONTINUE TO APPLY NOTWITHSTANDING, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY PROVIDED IN THESE TERMS. SELLER’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THE SALE OF PRODUCTS, OR SERVICES, OR THE USE (OR INABILITY TO USE) ANY PRODUCTS OR SERVICES, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT BUYER PAID TO SELLER FOR THE PARTICULAR PRODUCTS OR SERVICES AT ISSUE. NOTWITHSTANDING THE FOREGOING, THE EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES AND THE AGGREGATE LIABILITY CAP SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS (INCLUDING FOR THIRD-PARTY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT); OR (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
13. Buyer’s Duty to Test. Since the conditions of use, washing, dry cleaning, refurbishing, pressing, pre-washing, oven and other curing techniques and other processing performed by Buyer or Buyer’s customers on the Products are beyond Seller’s control, Buyer shall have a duty to test the Products under the anticipated conditions of use to determine if the character of the Products, including, without limitation, the dye and the specific type and size selected, are suitable for the purpose for which they are intended. SELLER DISCLAIMS ANY KNOWLEDGE OF BUYER’S INTENDED USE AND MAKES NO WARRANTY THAT THE STANDARD SPECIFICATIONS OF THE PRODUCTS ARE SUITABLE FOR BUYER’S PARTICULAR USE. IT IS THE RESPONSIBILITY OF BUYER TO DETERMINE WHETHER THE PRODUCTS ARE IN ALL RESPECTS OF THE PROPER CHARACTER FOR THE PROPOSED APPLICATION.
14. Indemnification by Buyer. Buyer, at its sole expense, shall defend, indemnify and hold Seller harmless from and against all claims, liability, loss, damage and expense arising out of or related to: (i) any actual or claimed patent, trademark, copyright or other proprietary rights infringement for any custom-made Products designed or specified by Buyer; (ii) Buyer, its employees, agents, or customers’ selection, installation, setup, use of, incorporation of, modification of, or application of the Products alone or in conjunction with other products, or Services; (iii) any processing or modification of Products (including unauthorized repairs) in any manner by Buyer, its employees, agents, or customers; (iv) any violation or failure to comply with applicable laws and regulations, including those pertaining to health and/or safety; (v) any intentional or negligent act, or misrepresentation by Buyer, its employees or agents; (vi) use of a Product or Services inconsistent with or exceeding Seller’s Specifications, limitations or recommendations; or (vii) any personal injury or property damage arising out of Buyer’s or its personnel’s acts or omissions.
15. Force Majeure. Seller will not be liable or responsible, nor be deemed to have defaulted under or breached a Contract, and its performance (and shipment dates, delivery dates or delivery periods) will be deemed extended for any failure or delay in fulfilling or performing any provision of a Contract, when such failure or delay is caused by or results from acts beyond the reasonable control of Seller, its Affiliates, or either Seller’s or its Affiliates’ respective subcontractors or suppliers, including the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terroristic threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect after the date of the Contract; (f) national or regional emergency; (g) strikes, labor stoppages or labor slowdowns or other industrial disturbances; (h) changes in the law; (i) delays in obtaining or the inability to obtain labor, materials, Products or Services through usual sources at normal prices; (j) imposition of tariffs or trade restrictions (including quotas); (k) significant disruptions in the supply chain and (l) other similar events beyond the reasonable control of Seller or its Affiliates, and their respective subcontractors or suppliers. The protections of this Section shall apply equally to Buyer with respect to any Force Majeure Event that prevents or delays Buyer’s performance of a Contract; provided, however, that a Force Majeure Event shall not excuse, reduce, or delay Buyer’s obligation to pay for any Products or Services already delivered or performed. The party affected by a Force Majeure Event shall provide prompt written notice to the other party and use commercially reasonable efforts to resume performance. If a Force Majeure Event continues for more than ninety (90) consecutive days, either party may terminate the affected Contract(s) upon written notice to the other party, without liability except for obligations accrued prior to such termination.
16. Confidentiality; Intellectual Property; No License. Buyer may have access to certain proprietary and/or confidential information and to other property (including trademarks) owned or used by Seller and its Affiliates, whether in oral, written, electronic or other form or media. Buyer acknowledges and agrees that all such proprietary and/or confidential information and other property will remain the property of Seller and its Affiliates and that, upon Seller’s request, Buyer shall return or destroy all proprietary and/or confidential information (in any and all forms) and shall return to Seller all such other property of Seller and its Affiliates. Buyer shall not, without Seller’s prior written consent (which consent may be withdrawn at any time), copy for any purpose or disclose to any third person, entity or organization any aspect of any such proprietary and/or confidential information, and will not use, except internally to perform its obligations under a Contract, any such proprietary and/or confidential information or other property of Seller or its Affiliates. All intellectual property rights, including patents, trademarks, and copyrights arising out of or in connection with the Products and provision of Services, as well as the exclusive right to manufacture the Products, shall be the sole and exclusive property of Seller and its Affiliates. Buyer agrees that Seller’s sale of Products and provision of Services does not grant to Buyer any license or intellectual property or similar right applicable to or in any Products or Services, or in any information or documents (including estimates, projections, drawings, calculations, recipes or instructions) Seller provides to Buyer, and Buyer waives any and all such rights. Seller and its Affiliates retain ownership in and control over all intellectual property, including patents, trademarks, copyrights, know-how, and goodwill applicable to or arising out of a Product or a Service. Buyer shall not name or designate any Seller information or Product or Service in any patent application. Buyer may not alter or remove, and will abide by, any patent, trademark, copyright, trade secret, proprietary or other notices, serial numbers, labels, tags or other identifying marks, symbols or legends contained on or in a Product (including containers or packages). If Buyer acquires any intellectual property or similar rights in or relating to any Products purchased under a Contract (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, then such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either Seller or Buyer.
17. General Conditions. Neither Buyer nor any agent, employee or other representative of Buyer, shall have any right or authority whatsoever to assume, create, incur or otherwise effect any liability or obligation on behalf of or binding upon Seller, including, without limitation, making any express or implied warranties relating to the Products beyond the scope of any warranties made by Seller herein. Buyer shall inform its customers and other end users of the Products regarding the terms set forth herein. Buyer shall indemnify Seller against all claims, suits, losses, costs, damages, judgments and expenses, including reasonable attorneys’ fees, arising out of any breach of the provisions contained in this Section. No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy by Seller.
18. Severability; Reformation. Each provision of these Terms is severable. If any provision of these Terms is held to be invalid, illegal, or unenforceable in any respect under applicable law, then such provision shall be deemed reformed, construed, and limited to the minimum extent necessary so as to be valid, legal, and enforceable while giving effect, to the greatest extent permitted by applicable law, to the intent of the parties (including, without limitation, the parties’ intent with respect to the warranty disclaimers and the exclusions and limitations of liability set forth in these Terms). If such provision cannot be so reformed, it shall be severed from these Terms, and the remaining provisions shall continue in full force and effect.
19. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of North Carolina (if Buyer is a Domestic Buyer) or the State of New York, including, without limitation, New York General Obligations Law Sections 5-1401 and 5-1402 (if Buyer is an International Buyer), without reference to such state's conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods is excluded and shall not apply. If Buyer is a Domestic Buyer: Seller and Buyer irrevocably and unconditionally agree that, except as explicitly set forth below, any dispute regarding these Terms, a Contract or the sale of Products or Services shall be brought and maintained in the United States District Court for the Western District of North Carolina or, if such court fails to satisfy applicable jurisdictional requirements, then the state courts of the State of North Carolina located in Mecklenburg County. Furthermore, each of Buyer and Seller irrevocably: (a) accepts generally and unconditionally the exclusive jurisdiction and venue of such courts; (b) waives, to the fullest extent permitted by applicable law any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute; (c) agrees that service of all process in any such proceeding in any such court may be made by nationally recognized overnight courier or by registered or certified mail, return receipt requested, to such party at its last known address; (d) agrees that service as provided in clause (c) above is sufficient to confer personal jurisdiction over the party in any such proceeding in any such court, and otherwise constitutes effective and binding service in every respect; (e) agrees that the parties retain the right to serve process in any other manner permitted by law but shall not have any right to bring proceedings against the other party in the courts of any other jurisdiction; and (f) agrees that the provisions of this Section relating to jurisdiction and venue shall be binding and enforceable to the fullest extent permissible under applicable law. Notwithstanding the foregoing, Seller may institute an action in any court of competent jurisdiction with respect to Seller’s claim or any action instituted by Seller (a) for equitable or comparable relief including an action for temporary or permanent injunctive relief; (b) for recovery of possession of Products, such as replevin, claim and delivery, attachment or the like; (c) to collect any amounts owed to Seller; or (d) to join or implead an action in which Seller is a party. If Buyer is an International Buyer: Seller and Buyer irrevocably and unconditionally agree that, except as explicitly set forth below, any dispute regarding these Terms, a Contract or the sale of Products or Services will be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Administered Arbitration currently in effect (the “Rules”), by one independent and impartial arbitrator, who shall be appointed in accordance with the Rules. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. The arbitration will be in English, and the place of the arbitration will be New York, New York. Notwithstanding the foregoing, Seller may institute an action in any court of competent jurisdiction with respect to Seller’s claim or any action instituted by Seller (a) for equitable or comparable relief including an action for temporary or permanent injunctive relief; (b) for recovery of possession of Products, such as replevin, claim and delivery, attachment or the like; (c) to collect any amounts owed to Seller; or (d) to join or implead an action in which Seller is a party.