ALL ORDERS FOR GOODS BY YOU ARE SUBJECT TO ACCEPTANCE BY VF IMAGEWEAR, INC. ("SELLER") AND SHALL BE ACCEPTED UPON THE FOLLOWING EXPRESS TERMS AND CONDITIONS, AND SUCH TERMS AND CONDITIONS TOGETHER WITH ALL OTHER TERMS AND CONDITIONS SET FORTH ON SELLER'S ORDER FORM NOT IN CONFLICT HEREWITH SHALL CONSTITUTE THE ENTIRE CONTRACT BETWEEN YOU ("BUYER") AND SELLER. NO MODIFICATIONS TO SUCH TERMS AND CONDITIONS, AND NO WAIVER THEREOF, SHALL BE EFFECTIVE AGAINST SELLER UNLESS IN WRITING AND SIGNED BY AN OFFICER OF SELLER. ORDERS MAY NOT BE CANCELLED OR RESCHEDULED WITHOUT SELLER'S PRIOR WRITTEN CONSENT. PRICES FOR SUCH ORDERS SHALL BE THE PRICES AS STATED ON SELLER'S INVOICE. ALL PRICES ARE EXCLUSIVE OF TAXES, INSURANCE COSTS, FREIGHT, DUTIES AND OTHER CHARGES. BUYER AGREES TO INDEMNIFY SELLER FROM ANY LIABILITY FOR TAXES ASSOCIATED WITH SUCH SALE. BY COMPLETING AND SIGNING SELLER'S CREDIT APPLICATION AND/OR ACCEPTING THE SHIPMENT OF GOODS, BUYER ACKNOWLEDGES ITS AGREEMENT TO THESE TERMS.
If any of the terms and conditions herein conflict with terms and conditions specified by Buyer, THEN ACCEPTANCE OF BUYER'S ORDER IS MADE ONLY UPON THE EXPRESS UNDERSTANDING AND CONDITION THAT THE TERMS AND CONDITIONS HEREIN SHALL GOVERN AND CONTROL THE CONTRACT BETWEEN BUYER AND SELLER, irrespective of whether Buyer accepts these terms and conditions by a written acknowledgement, by implication or by acceptance of or payment for goods ordered hereunder. Seller's failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of or a modification to, any or all of the STANDARD TERMS AND CONDITIONS OF SALE as expressed herein.
Seller agrees to deliver the goods sold to a carrier for transportation to Buyer and to arrange for transportation thereof to the destination specified by Buyer at the time of order. Delivery shall be by carrier of Seller's choice. Buyer assumes title and all risk of loss from the time the goods are deposited with the carrier. The goods shall be delivered F.O.B. Seller's warehouse. All freight, express and delivery charges shall be paid as a separate item by the Buyer and shall not be subject to any discount. Shipments will be deemed to have been accepted by Buyer upon delivery, unless rejected by Buyer. Buyer shall perform all reasonable inspections within seven (7) days of delivery, at which time goods shall be deemed as irrevocably accepted.
Delivery to a carrier shall constitute a delivery, subject, however, to Seller's right of stoppage in transit. The carrier shall act solely as Buyer's agent, and all claims for damages or delays in transit shall be against carrier and must be filed by Buyer against carrier. The Seller may, at its option, make delivery from some point other than Seller's warehouse in which case Seller may add to the price of delivery a reasonable charge for transportation from its warehouse to the point from which delivery is made. In such event, the total transportation to be paid by the Buyer for delivery shall not exceed the established rate from the warehouse in to the destination specified by Buyer. Seller's delivery dates are estimates only and Seller shall not be liable to Buyer for delivery delays or failure to perform hereunder for reasons beyond Seller's control.
If strike, embargo or other cause beyond Seller's reasonable control prevents delivery to Buyer or delivery to a carrier, title to the goods nevertheless passes to the Buyer as soon as the goods have been completed and set aside by Seller and invoiced to Buyer. In such event, payment shall be made in accordance with the invoice as thought the goods had been shipped. In the case of such delay in delivery to the carrier, such delivery shall be made as soon as practicable. Buyer shall have no right to cancel any order for late delivery occasioned under this Paragraph II(C) so long as Seller shall have completed and set aside the goods, or delivered the goods to the carrier, as the case may be, on or before the delivery cutoff date.
If shipping instructions are not actually received by Seller before the earliest permitted delivery date for the goods, or in the instance of goods held subject to Buyer's instructions, title passes to the Buyer when the goods have been set aside and invoiced and Buyer agrees to make payment therefor as specified in the invoice. If the order provides that Buyer is to furnish exact shipping dates and/or destinations but Buyer fails to furnish same at least thirty (30) days in advance of the earliest permitted delivery date, Seller, at its option on or after the earliest permitted delivery date, may (i) invoice the Buyer and hold the goods for Buyer's account; (ii) cancel the order and any other contract with buyer and sell all or any part of the undelivered goods in a commercially reasonable manner, the Buyer to be responsible for the costs and expenses of such delay, any resulting deficiency and any damages as hereinafter defined or (iii) Seller shall have a reasonable time to make delivery after details are furnished even if such delivery extends beyond any cutoff date for delivery as specified in the order. The election of any of the foregoing shall not preclude the selection of any other remedy available to Seller hereunder or under applicable law.
Seller's obligation to deliver hereunder shall at all times be subject to Seller's continuous approval of Buyer's credit.
The delivery of goods which do not vary more than ten percent (10%) greater or less than the quantity of goods ordered, the delivery of substitute sizes or the delivery of substitute designs of equal or greater value shall constitute compliance under any order. Partial deliveries shall be accepted by the Buyer and paid for at contract prices and terms. If the sale of the goods shown on any order is by Seller's sample, delivery of goods of quality substantially equal to, or greater than, such sample shall constitute full compliance by Seller.
Any defect in quality or delays in delivery shall affect only the particular portion of delivery so defective or so delayed and shall not affect the balance of this contract. Any delivery not in dispute shall be paid for on the due date, as provided in the invoice, without defense, setoff or counter-claim and regardless of controversies relating to other goods.
Where the Buyer has declared or manifested an intention that it will not accept delivery in accordance with the provisions of this contract, no tender by Seller shall be necessary, but Seller may, at its option, give notice in writing to the Buyer that the Seller is ready and willing to deliver in accordance with the provisions of the contract, and such notice shall constitute a valid tender of delivery.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL IMPLIED WARRANTIES AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE GOODS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
CREDIT AND PAYMENT
All invoices are payable in United States dollars at Seller's designated remittance address. No discount may be taken unless permitted by the terms of invoice and payment is made on or before the due date. Any check or remittance received from or for the account of the Buyer may be accepted and applied by Seller or its agent against any indebtedness or obligation owing by Buyer as shown by the books and records of Seller or its agent without prejudice and notwithstanding any provision, statement, legend or notation appearing on, referring to or accompanying such remittance, none of which shall be binding upon or effective as against Seller.
Seller or its agent may, at any time and from time to time, in its sole discretion, limit or cancel the credit of the Buyer as to time and amount, and as a consequence, may require anticipation or demand payment in cash before delivery or any/or unfilled portion of any order. Upon failure of Buyer to make such payment within ten (10) days after demand, or in the event of any default, breach or repudiation by Buyer of any contract with Seller, or if Buyer shall become insolvent, call a meeting of its creditors, or make an 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 cancel any order or contract with Buyer (in which event Buyer shall remain liable for damages), defer any deliveries hereunder, declare forthwith due and payable all outstanding invoices owed to Seller, sell all or any part of the undelivered goods, without notice, at public or private sale, the Buyer to be responsible for the costs and expenses of such sale and deficiency and for damages as hereinafter defined, Seller to account to the Buyer for any expense. Seller shall have the right to become the Buyer of such goods at any public or private sale. All of the foregoing shall be due and payable to Seller upon demand or invoice.
No order shall be deemed accepted by Seller until such time as Seller shall have initially approved Buyer's credit to Seller's absolute satisfaction. The acceptance of all such orders shall be deemed to have occurred only in Nashville, Tennessee, or Tampa, Florida, at Seller's places of business. The approval of credit for any one order shall not be deemed the approval of credit for any other order and, in cases of multiple deliveries under a single order, the approval of credit with respect to any delivery shall not be deemed the approval of credit for all deliveries. Following the initial credit approval with respect to any order, Buyer's failure to maintain its credit to Seller's reasonable satisfaction shall, at Seller's election, be deemed a default in Buyer's obligation to Seller. Buyer hereby warrants and represents the accuracy of any and all information of a credit nature given by Buyer or any agent of Buyer in response to any inquiry by Seller.
Any property of Buyer, including but not limited to goods billed and held at any time in Seller's possession (or in the possession of any affiliate of Seller) either as principal or agent, shall be deemed held as security for, and may at Seller's option be set-off against, any and all of Buyer's obligations to Seller or any affiliate of Seller. In such event, Seller is hereby irrevocably authorized to file a UCC-1 Financing Statement and affix Buyer's signature thereon, in all appropriate filing offices.
TERMS OF PAYMENT
Payment terms shall be in accordance with and as indicated in Seller's Credit Line Approval Letter.
If, in the option of Seller, the financial condition of Buyer warrants such action, Seller may at any time before or after delivery of the goods demand prompt and full payment or require other security or further assurances of due performance form Buyer. In the event such demand is not satisfied within five (5) business days of its date, unless an extended date is permitted by Seller, Seller may deemed any contract repudiated by Buyer and shall be entitled to reimbursement of expenses incurred, any deficiency together with damages as hereinafter defined.
Buyer shall be liable for all costs and expenses incurred by Seller including attorney's fees arising out of any default by Buyer in payment or in any of the other terms and conditions of any contract between Seller and Buyer.
STORAGE AND INSURANCE
Goods invoiced and held on behalf of Buyer at any location, including Seller's warehouses, shall be held at Buyer's risk and expense and Seller may charge for insurance and storage at prevailing rates. This Paragraph shall apply to goods held at Buyer's request or to goods held as a result of Buyer's delays or Buyer's default.
CASUALTY AND AVAILABILITY OF RAW MATERIALS
Seller shall not be liable for any delay in the delivery of all or any part of goods ordered and shall not be held responsible for any losses, resulting to Buyer if the fulfillment of any of the terms and conditions herein or the terms or conditions of any order shall be delayed or prevented by revolutions or other disorders, war, acts of enemies, strikes, lockouts, fires, floods, act of God, other casualties, Government regulations, delay or inability to obtain labor, materials or goods through Seller's usual and regular sources of supply accident or any other condition beyond the reasonable control of Seller. In such event, Seller may, at its discretion, without notice to Buyer, at any time and from time to time, postpone with permission of the Buyer the delivery dates under any order from a time which is reasonable to Seller under all of the circumstances or make partial delivery. Otherwise, Seller may cancel all or any portion of any order whereupon Seller shall have no further obligation or liability thereunder to Buyer.
CANCELLATIONS OF CONTRACT
In case of reasonably unforeseen circumstances which materially alter the economic aspects or the substance of any contract or seriously interfere with the operation of Seller or any of Seller's suppliers or if it should otherwise prove substantially impossible for Seller to carry out its part of any contract, the Seller shall have the right to cancel any such contract or order in whole or in part in which case Seller shall have no responsibility or liability whatsoever to Buyer.
CLAIMS BY BUYER
All claims of Buyer for defects, whether patent or latent, shall be barred and waived unless Buyer gives written notice of such defects to Seller within 30 days from the date of receipt of the goods by Buyer or Buyer's agent. In said notice, Buyer must clearly specify the ground and nature of the defects and the quantity of the goods affected by each such defect. Upon receipt of said notice, Seller may issue its return authorization sticker for all or such portion of the goods claimed to be defective as Seller may deem necessary or appropriate to evaluate Buyer's claim. No other returns will be accepted unless further authorization is issued by Seller. If Seller determines that such defects exist, and such defects have not been disclaimed under Paragraph II of Seller's Terms and Conditions of Sale, Seller, in its absolute discretion may (i) replace the defective goods within a reasonable period of time; (ii) authorize the return of such defective goods for credit equal to the original purchase price; or (iii) deny the claim and return to the Buyer the goods sent to Seller for testing and inspection. In no event shall Seller's liability for defective goods exceed the purchase price charges by the Seller for the defective goods together with freight to and from Seller's warehouse, notwithstanding any denial of liability for such defective goods made by Seller.
LIMITATIONS OF SELLER'S LIABLITY
BUYER HEREBY ACKNOWLEDGES AND AGREES THAT WITH RESPECT TO ANY ORDER OR CONTRACT FOR THE PURCHASE OF GOODS FROM SELLER, SELLER'S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO ANY DEFAULT BY SELLER OR ANY BREACH OF ANY SUCH CONTRACT BY SELLER SHALL NOT EXCEED THE LESSER OF (i) SELLER'S ACTUAL AND DIRECT DAMAGES OR (ii) THE PRICE AT WHICH SUCH GOODS WERE SOLD BY SELLER TO BUYER TOGETHER WITH THE ACTUAL COST OF FREIGHT FROM SELLER'S WAREHOUSE TO THE PLACE OF DELIVERY ORIGINALLY SPECIFIED IN SUCH CONTRACT. IN NO INSTANCE SHALL BUYER BE ENTITLED TO CLAIM CONSEQUENTIAL DAMAGES, PROSPECTIVE PROFITS, OR SPECIAL OR INDIRECT DAMAGES. NOR SHALL SELLER BE LIABLE IN ANY INSTANCE FOR LOST PROFITS OR SPECIAL OR INDIRECT DAMAGES OR PROFITS ON CONTEMPLATED USE OF SUCH GOODS BY BUYER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGES BY REASON OF BUYER'S INABILITY TO OBTAIN SUBSTITUTE GOODS IN THE OPEN MARKET. THIS LIMITATION ON DAMAGES AGAINST SELLER SHALL APPLY TO ANY DEFAULT OR BREACH BY SELLER INCLUDING THE BREACH OF ANY WARRANTY OR ANY TORT COMMITTED BY SELLER. BUYER HEREBY EXPRESSLY WAIVES ANY CLAIM FOR PUNITIVE DAMAGES.
DEFAULTS BY BUYER
If Buyer defaults in any obligation to Seller, including any obligation to make payment, Seller may, at its option and in addition to any other remedy which may be available to Seller, elect to do any one or more of the following: (i) treat any such default as a default of all obligation of Buyer to Seller; (ii) defer delivery until such default is cured; (iii) cancel any undelivered portion of any order for goods; (iv) demand full and immediate payment on any outstanding invoice, whether or not otherwise due; or (v) exercise any remedy available to a seller under the Uniform Commercial Code- Sales, TCA §47-2-101 et seq and other Tennessee law, If Seller defers delivery because of Buyer's default, Buyer agrees to accept and pay for such goods notwithstanding the expiration or any delivery cutoff date. In the event Seller elects to resell any goods ordered, but no delivered to or accepted by, Buyer, and if any of the goods or containers thereof shall be covered by any patent or copyright or have been stamped or label with Buyer's label, design, trademark or trade name, Seller shall have the right to resell such goods and containers with any stamp or label affixed and Buyer hereby granted to Seller, its successors and assigns, an irrevocable license for such purpose.
Buyer acknowledges that Seller may, from time to time, affix Buyer's proprietary marks such as trademarks and other designs to goods in accordance with Buyer's instructions. In the ordinary course of such business, such proprietary marks are customarily affixed to Seller's goods only in reliance upon credit-approved orders for such goods. Once such proprietary marks are affixed, Seller's ability to resale such goods in the event of Buyer's default is limited to reasonable saturation considerations. Accordingly, such goods have the characteristics of specialty manufactured goods as that term is defined in the Uniform Commercial Code- Sales, TCA §47-2-101 et seq and other Tennessee law, and any damages resulting from the breach or default of Buyer with respect to any for such goods shall specifically include the cost and expenses incurred by the Seller as a result of such breach, the contract price for such goods less such price, if any, as is reasonably obtained by Seller upon the resale of such goods, the loss of profits to Seller if the breach occurs prior to the date the manufacture of such goods is first commenced and the time value of such loss to Seller measure Seller's normal gross profit margin in recognition that Seller may not be liable to reasonably resell such goods until the next or a subsequent reason for such goods, all of which shall be deemed a direct consequence of any breach or default by Buyer. Buyer shall be liable for all costs an expense incurred by Seller, including reasonable attorney's fees arising out of any default or breach by Buyer in addition to Buyer's liability for Seller's actual, special and consequential damages.
RIGHTS OF SELLER
In addition to the rights and remedies of Seller as set forth herein, Seller shall have such other rights and remedies as may be available to it under Uniform Commercial Code -- Sales, TCA §47-2-101 et seq and other Tennessee law, all such rights and remedies to be cumulative.
USE OF TRADEMARKS AND LOGOS
The sale and delivery of goods by Seller to Buyer does not constitute a sale or delivery of any right in the pattern, design, label, copyright or proprietary marks of Seller or Seller's licensors, the sole rights thereto being limited to the right to sell the goods delivered in the ordinary course of Buyer's business but without alterations or defacement thereof in any respect whatsoever. Buyer shall not use the proprietary marks of Seller or any of Seller's licensors except with the specific written permission of an officer of Seller.
Buyer agrees to indemnify and hold harmless Seller its affiliates, officers, directors, agents and employees against any claims, demands, causes of action, damages and reasonable attorneys' fees arising out of or in connection with the use of any trademarks, logos or other marks which Seller uses at Buyer's request to embellish goods for sale to Buyer.
Seller warrants that where necessary in its sole judgment, it has obtained rights pursuant to licenses and other agreements from and with sports leagues licensors, including but not limited to, Major League Baseball, the National Football League, NASCAR, various collegiate institutions and their agents, and the National Hockey League for the use of certain intellectual property, including but not limited to trademarks, logos and other marks, in conjunction with the manufacture and sale of goods (the "League Goods") hereunder in a defined protected geographic territory. Seller agrees to indemnify and hold harmless Buyer, its affiliates, officers, directors, agents, employees and customers against any claims, demands, causes of action, damages arising out of or in connection with the use of such trademarks, logos or other marks, provided however, that such indemnification shall be only for League Goods sold within such protected geographic territories.
No waiver by either party of any default shall be deemed a waiver of any subsequent default. Any replacement (as hereinafter provided) or adjustment of a delivery shall cure any defaults with respect to that delivery and any default so cured shall be deemed not to have occurred.
No rights of Buyer under or arising out of any contract with Seller may be assigned without the express written consent of Seller.
This contract shall be governed by the Uniform Commercial Code - Sales, TCA §47-2-101 et seq, as enacted by the State of Tennessee and other laws of the State of Tennessee.
In the event of any dispute between Seller and Buyer arising out of or related to this agreement or any order or contract between Buyer and Seller, such dispute shall be adjudicated between the parties, at Seller's discretion, solely in a court of competent jurisdiction in either the State of Tennessee in or serving the County of Davidson, or the State of Florida in or serving the County of Hillsborough and the parties hereby consent to the jurisdiction of either such Tennessee or Florida courts and further consent that any process, summons or notice or any other application to such Courts may be served by personal service by certified U.S. Mail, postage prepaid, return receipt requested, either in or outside the States of Tennessee and Florida. Buyer hereby waives trial by jury.