1. General Application. Unless otherwise specifically agreed in a writing signed by an authorized employee of TWE Nonwovens US, Inc. (“Seller”), the following terms and conditions shall apply to: (i) all quotations and offers (“Offer”) made by Seller to a customer (“Buyer”); (ii) all purchase orders or other acceptances, acknowledgments or confirmations of any Offer delivered by Buyer (“Purchase Order”); (iii) all acceptances, acknowledgements, and confirmations of any Purchase Order given by Seller to a Buyer; and (iv) any agreements regarding the sale by Seller, and purchase by Buyer, of goods (“Products”).
2. Scope. Different or additional terms and conditions proposed by Buyer in any Purchase Order, or otherwise, are explicitly objected to, and intentionally disregarded, by Seller, and Buyer’s assent to the terms and conditions of sale set forth herein shall by conclusively presumed from the earlier to occur of (i) Buyer’s failure to reasonably object thereto in writing prior to the execution of the Sales Agreement (as defined below) or (ii) Buyer’s acceptance of all or part of the Products ordered. These terms and conditions of sale, together with any applicable Offer, Purchase Order or other agreement authorized by Seller (and any exhibits attached hereto or thereto) represent the entire sales agreement of the parties
(the “Sales Agreement”) and all proposed negotiations, representations or agreements made or entered into prior to or contemporaneously with this Sales Agreement, whether oral or written, are excluded.
3. Price. All prices (i) are F.O.B. Seller’s facility listed on the invoice, unless otherwise agreed in writing and (ii) do not include any cost of freight; insurance; special packaging or insulation; inspection; permits or other compliance with governmental laws and regulations; or any sales, use, excise, customs or other taxes, duties or fees, or any other charge imposed by any federal, state or other governmental authority, all of which must be paid by Buyer. A tax or other governmental charge upon the production, sales, shipment or use of any items that Seller is required to pay or collect from Buyer shall be paid by Buyer to Seller unless Buyer furnishes Seller with tax exemption certification acceptable to the appropriate taxing authority. Changes in tariffs, freight rates or transportation charges used in determining delivered prices that occur after the sale, but prior to shipment, will be for the account of Buyer.
4. Payment. Unless credit terms have been extended to Buyer in writing by Seller, payment terms are net 30 days in United States currency. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guaranties, security or payment in advance of the amount of credit involved. Interest shall accrue on any account in arrears in accordance with Section 5 hereof.
5. Failure to Pay. If Buyer fails to fulfill terms of payment, Seller may, in its sole option, without prejudice to any other right or remedy available to Seller, at law or in equity, do any one or more of the following: (i) defer further shipments to Buyer, (ii) cancel the unshipped portion of Buyer’s order(s), (iii) alter payment terms, and/or (iv) charge interest on all past due amounts at a rate equal to 18% per annum, computed on the basis of a 360-day year and the actual days elapsed to accrue from the date such payment is due until paid in full; provided, however, that if such rate exceeds the maximum rate permitted under applicable law, then interest shall be charged at the maximum rate permitted under such law. In addition, Buyer agrees to pay all costs, including reasonable attorneys’ fees, incurred by Seller in the enforcement of any obligation of Buyer hereunder.
6. Terms of Shipment. Seller will ship the Products in accordance with the instructions supplied by Buyer; but if Buyer fails to furnish such instructions, Seller will select what is, in its opinion, satisfactory routing for shipment. If Buyer is to pick up Products and has not done so within seven (7) days after notification from Seller that they are ready for shipment, Seller may ship the Products to Buyer by any commercial carrier Seller, in Seller’s sole discretion, deems satisfactory. Any prepayment by Seller of freight charges shall be stated in the delivery documents for the Products.
7. Title and Risk of Loss. Title to the Products shall pass to Buyer upon payment in full of the purchase price for the Products. Risk of loss for the Products passes to Buyer upon delivery to the carrier. Any losses or damages thereto on and following the delivery shall be borne by Buyer.
8. Nonconformity. Within ten (10) days after delivery of a Product to Buyer, Buyer must give detailed written notice to Seller of any claim based upon the condition, quantity or grade of the Product sold or any claimed nonconformity with this Sales Agreement. The failure of Buyer to comply with this requirement shall constitute irrevocable acceptance by Buyer of the Product delivered and shall bind Buyer to pay Seller the full price for such Product.
9. Date of Shipment. Estimated shipping dates are given to the best of Seller’s knowledge based upon conditions existing at the time the order is placed and information furnished by Buyer, but are not guarantees of when the Products actually will ship. Seller will, in good faith, endeavor to ship by the estimated shipping date but shall not be responsible for any delay or any damage arising therefrom.
10. Cancellation of Order by Buyer; Return of Products for Credit. Buyer’s order may not be modified or rescinded except in writing signed by Seller and Buyer (a “Change Order”). A Change Order may result in additional costs and expenses payable by Buyer to Seller, all as determined by Seller. If all or part of Buyer’s order is terminated for such modification or rescission, Buyer, in the absence of a Change Order, shall pay termination charges, determined by generally accepted accounting principles, equal to the reasonable anticipated profit of Seller in connection with such sale. In any circumstance, Seller’s written consent must by given in advance of Buyer’s return of Products for credit.
11. Force Majeure. Seller shall not be liable for damages of any kind caused by delays in shipment, delivery or any other nonperformance of the Sales Agreement, directly or indirectly resulting from, or contributed to by, any circumstances beyond Seller’s control including, without limitation, to acts of God, riots, wars or national emergencies, epidemics or pandemics, acts of terrorism, labor disputes of every kind, however caused, embargoes, nondelivery by suppliers, inability to obtain supplies through normal sources, delays of carriers or postal authorities, or government restrictions, prohibitions or diversions. The occurrence of any such circumstance shall operate to extend Seller’s time of performance hereunder for a period not less than the period of such delay. In the event of any such circumstance, Seller may allocate its deliveries among its customers as it may decide in its sole discretion.
12. Disclaimer of Product Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED “AS IS” AND SELLER MAKES NO WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. NO PERSON IS AUTHORIZED TO GIVE ANY WARRANTY ON SELLER’S BEHALF OR TO ASSUME FOR SELLER ANY OTHER LIABILITY IN CONNECTION HEREWITH. BUYER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS SALES AGREEMENT IN RELIANCE UPON ANY STATEMENT OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
13. Exclusivity of Remedy; Limitation of Liability. In the event Buyer claims that Seller has breached any of its obligations under this Sales Agreement, whether of warranty or otherwise, Seller may request the return of the Products purchased and tender to Buyer the purchase price paid by Buyer for such Products and, in such event, Seller shall no longer have any obligations under this Sales Agreement. If Seller so requests the return of the Products, the Products shall be redelivered to Seller in accordance with Seller’s instructions and at Seller’s expense. THE REMEDIES PROVIDED FOR IN THIS PARAGRAPH SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AGAINST SELLER FOR BREACH OF ANY OF SELLER’S OBLIGATIONS UNDER THIS SALES AGREEMENT, WHETHER THE CLAIM IS MADE IN TORT OR IN CONTRACT AND WHETHER FOR PERSONAL INJURY, COMMERCIAL LOSS, OR OTHER MONETARY LOSS, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUES, LOSS OF CUSTOMER GOODWILL, BUSINESS INTERRUPTION COSTS, COSTS OF CAPITAL OR LOSS OF USE OF MONEY) REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME NOR SHALL SELLER’S LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS SALES AGREEMENT OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS.
14. Governing Law; Venue; Limitations of Actions. This sales agreement shall be performed in North Carolina and shall be governed by the Uniform Commercial Code as adopted in the State of North Carolina and shall otherwise be governed by the internal laws (without regard to the conflict of law provisions) of the State of North Carolina. Whenever a term defined in the North Carolina Uniform Commercial Code is used herein, the definition contained in such Uniform Commercial Code is to control. BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN GUILFORD COUNTY, NORTH CAROLINA, OR ANY FEDERAL COURT LOCATED IN THE WESTERN DISTRICT OF THE STATE OF NORTH CAROLINA, AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO BUYER AT BUYER’S ADDRESS SET FORTH ON THE INVOICE, AND SERVICE SO MADE SHALL BE DEEMED TO HAVE BEEN COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THIRTY (30) BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED. TO THE EXTENT PERMITTED BY LAW, BUYER WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT BUYER MAY HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDINGS INSTITUTED HEREUNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS SALES AGREEMENT. NOTHING IN THIS SALES AGREEMENT SHALL AFFECT THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. NO ACTION MAY BE BROUGHT BY BUYER FOR SELLER’S BREACH OF THIS SALES AGREEMENT OR ANY COVENANT OR WARRANTY ARISING THEREFROM MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
15. Confidential Information. All pricing, drawings, plans, disclosures, specifications, patterns or technical or business information furnished at any time to Buyer by Seller shall remain the sole property of Seller. Buyer shall hold all such information in strict confidence, shall not use or divulge to any person or entity any such confidential information, and any and all copies of such confidential information shall be returned to Seller promptly upon Seller’s request
16. Miscellaneous. The terms and conditions stated herein constitute, along with this Sales Agreement, the complete and exclusive statement of the terms and conditions of sales of the Products. There are no other promises, conditions, understandings, representations or warranties of any kind with respect to the subject matter hereof. This Sales Agreement may be amended, modified or supplemented only in writing signed by Seller and Buyer. The failure of Seller to enforce any right hereunder will not be construed as a waiver of its right to performance in the future. Any provision of this Sales Agreement which is, or is deemed to be, unenforceable in any jurisdiction shall be severable from this Sales Agreement in that jurisdiction, without in any way invalidating the remaining provisions of this Sales Agreement, and that unenforceability shall not make that provision unenforceable in any other jurisdiction. The rights that accrue to Seller by virtue of this Sales Agreement shall inure to the benefit of its successors and assigns. The relationship between Seller and Buyer is that of independent contractors and nothing in this Sales Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. All requests, instructions, and notices from one party to the other must be in writing and may be given via certified mail or facsimile transmission to the address of the parties shown on the face of the Purchase Order. Neither the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods nor the Convention on Contracts for the International Sale of Goods applies to this Sales Agreement. Provisions of this Sales Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Sales Agreement including but not limited to Sections 3, 4, 5, 12, 13, 14, 15 and 16.