TERMS AND CONDITIONS OF SALE
These terms and conditions of sale (“Terms of Sale”) and any Seller Sales Documents expressly accompanying or referencing these Terms of Sale, collectively constitute the “Contract Documents” governing the sale of goods and services described therein (the “Goods”) by Brookwood Companies Incorporated or its subsidiaries (“Seller”) to the buyer (“Buyer”). “Sales Documents” means any written or electronic Seller document referenced or provided during the purchase and sale process, including but not limited to Seller quotations, invoices, shipping documents, and documents confirming, acknowledging or accepting an order. The goods specified in the Contract Documents are sold only on the terms and conditions stated herein and on the Contract Documents, which terms and conditions cannot be altered or amended without Seller’s express written consent. The terms and conditions of the Contract Documents supersede any terms and conditions in any purchase order or other documents of Buyer, and Seller objects to and specifically rejects the inclusion of any different or additional terms proposed by Buyer in any purchase order or other documents. Any act by Seller in manufacturing or delivering any Goods for or to Buyer shall not constitute an acceptance of additional or different terms in Buyer’s purchase order or any other document and any such additional or different terms shall be null and void against Seller. If a contract is not earlier formed by agreement in writing, acceptance of any Goods furnished hereunder shall be deemed to be an assent to acceptance of all the terms and conditions stated herein. Buyer’s acceptance of the Terms of Sale and the provisions, terms and conditions of the Contract Documents is further manifested by any of the following: (a) placing or confirming a purchase order or giving instructions to Seller respecting manufacture, assortment, or delivery of the Goods (including instructions to bill and hold) following receipt of an order acknowledgment referencing the Terms of Sale; (b) accepting delivery of all or any part of the Goods; (c) paying for all or any part of the Goods; (d) acknowledging an order receipt by return e-mail; (e) sending to Seller a written acknowledgement of the Terms of Sale; (f) indicating in some other manner Buyer’s acceptance of the Terms of Sale; and/or (g) registering with any Seller accepted on-line order/payment portal(s). Upon acceptance, Buyer irrevocably agrees and commits to purchase the Goods in accordance with the Terms of Sale. Buyer further affirms that Buyer is a business and not a private individual, assumes all risk associated with payments made via on-line platforms, and assents to the use of all data provided in furtherance of the sale. Acceptance of these terms and conditions shall be binding upon Buyer and Buyer’s permitted successors and assigns.
Seller’s prices specified in the Contract Documents are subject to the following: (a) Unless otherwise stated in writing by Seller, all prices are exclusive of transportation from the E.X.W. Incoterms 2020 origin point, insurance, taxes (including without limitation any sales, use or similar tax, and any tax levied on or assessed to Seller after delivery by reason of Seller’s security interest in the goods), license fees, customs fees, duties, and any other charges related to the goods. If Seller pays any such shipping charges, premiums, taxes, fees, duties, or other charges, Seller will invoice Buyer therefor and, Buyer will promptly reimburse Seller therefor. Buyer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties, and other charges related thereto, and shall hold Seller harmless therefrom. (b) Typographical and clerical errors are subject to correction. (c) Prices are for the goods specified only and do not include technical data or proprietary rights of any kind. (d) Prices are subject to change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors.
2. Terms of Payment
Terms of payment are set forth on the Contract Documents. If no terms of payment are listed, the terms of payment shall be net 30 days after receipt of invoice or delivery of the goods whichever is earlier. Only with the written approval of Seller’s Credit Department may payment be on any other terms. Past due balances will be subject to a service charge of 1.5% per month (18% per annum), but not more than the amounts allowed by law. Partial shipments will be billed as made and payments therefor are subject to the above terms. Prices on any undelivered portion of the goods covered by the Contract Documents are subject to adjustment by the amount that Seller’s costs on said portion are increased as a result of any federal, state or local legislation, government rule, regulation or order enacted after the date hereof. If Seller determines in its sole discretion that Buyer’s credit has deteriorated, Seller may (a) defer future shipments under and/or (b) cancel or suspend its performance on any order then pending from Buyer to Seller until all outstanding amounts due from Buyer have been paid and its credit has improved, and/or require cash payment on or before future deliveries.
Transportation will normally follow Buyer’s shipping instructions, but Seller reserves the right to select the means of transportation and routing when Buyer’s instructions are deemed unsuitable. Unless notified to the contrary by Buyer, Seller may insure to the full value of the goods or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account. All shipments are E.X.W. Incoterms 2020 the finishing plant or E.X.W. Incoterms 2020 warehouse unless otherwise specified in writing by Seller. Risk of damage or loss is Buyer’s responsibility after delivery by Seller to a carrier for shipment. Goods invoiced and held by Seller (“Bill and Hold Goods”) shall be at Buyer’s risk, and Buyer shall be deemed, by accepting the terms of the Contract Documents, to have requested Seller to handle any Goods on the following basis if Buyer has not arranged for immediate shipment of such Goods by the date of payment of such invoice: (a) Buyer hereby designates Seller, at one of the following locations: Kenyon, RI, Wauregan, CT, Gardena, CA, or other domestic or international location designated by Seller; as its receiving and warehouse location; (b) Buyer acknowledges that title to the goods shall pass to Buyer upon payment of the invoice related to such goods; (c) Buyer agrees that the goods must be shipped to Buyer no later than nine (9) months following the date of the invoice relating to such Goods, unless extended in writing by Seller; (d) Buyer shall accept the goods in their then-current, existing condition; and (e) the purchase price quoted by Seller to Buyer for such goods shall include the price for the goods themselves as well as warehousing services for the goods for up to 9 months. Any continued warehousing beyond 9 months shall be subject to warehousing charges at Seller’s then current rates. Delivery dates are subject to timely delivery from Seller’s suppliers. Subject to the foregoing, a delivery specified as “complete by” a stated date may be delivered at Seller’s option at any time up to and including such date. A delivery specified as “during” or “through” a stated period or specified for a standard period may be delivered at Seller’s option at any time during such period. Unless specified as a single shipment or an agreed minimum number of shipments, delivery of Goods may be made in one or more shipments at Seller’s option. Buyer shall accept at the stated unit price deliveries of ten percent (10%) more or less than the amount set forth herein.
4. Bill and Hold Goods
Notwithstanding any terms to the contrary herein, with respect to any Bill and Hold Goods, Buyer acknowledges and agrees: (a) that any such Bill and Hold Goods are the property of the Buyer and the Buyer accepts title for the Bill and Hold Goods as invoiced and the Buyer agrees to remit full payment for the Bill and Hold Goods as invoiced when payment is due regardless whether the Bill and Hold Goods are in the possession of Buyer; (b) that Buyer shall bear all risk of loss with respect to the Bill and Hold Goods notwithstanding that they remain in the possession of Seller and, to the extent Buyer desires insurance coverage with respect thereto, Buyer shall obtain such insurance at its own cost and expense; (c) that Buyer shall pay the full amount invoiced regardless whether Seller is holding, per Buyer’s instructions, any Bill and Hold Goods presented by such invoice for account; (d) that Buyer shall not interpose any defense, offset or counterclaim to such invoice based upon Seller’s retention or delay in shipment to Buyer of the Bill and Hold Goods previously sold to Buyer by Seller on a “Bill and Hold” arrangement; (e) Buyer consents to the Bill and Hold payment agreement as set forth in this paragraph and will notify the factor, if any, in writing at least thirty (30) days prior to the effective date of such withdrawal of consent. Buyer further acknowledges that Seller fully retains its rights to any liens it may have under applicable law or industry standard, including but not limited to Title 34, Chapter 34-29 of the Rhode Island General Laws, “Textile Processors’ Liens.” (See 34 R.I. Gen. Laws § 34-29); all said rights remain fully enforceable.
5. Acceptance of Goods
Before any rejected Goods are returned to Seller, Seller’s prior written authorization and Seller’s instructions regarding how and where Goods should be returned must be obtained. No credit or replacement will be issued on any Goods which have been cut, processed, or otherwise altered or defaced in any way.
No claims regarding the quality of Goods will be allowed unless such Goods are promptly made available to Seller for examination in the same condition as when delivered to Buyer. No claim will be considered unless made in writing within (a) ninety (90) days for latent defects, or (b) thirty (30) days for all other claims, in both cases measured from the invoice date. Buyer shall not assert any claim or defense it may have against Seller against any assignee of Seller’s right to payment hereunder or under any invoice. Buyer’s failure to inspect Goods held on Bill and Hold shall not be a defense to the conditions set forth herein.
6. Shipping & Billing
Goods will be shipped, and customer billed within 30 days of purchase order requested delivery date or actual completion date, whichever is later.
7. Security Interest
Seller reserves and Buyer grants to Seller a purchase money security interest in all Goods which are the subject of the Contract Documents, these terms and conditions, and/or a contract of sale entered pursuant hereto (and proceeds thereof) as security for the payment by Buyer of the full purchase price for such Goods. Buyer agrees to execute such documents as Seller requests to perfect such security interest.
Seller assumes no obligation or liability with respect to infringements of patents,
copyrights, trademarks, or other proprietary rights arising out of Goods sold hereunder. Buyer shall defend, indemnify and hold Seller harmless from and against any and all claims, demands, liabilities, losses, damages, injuries, costs, and expenses of whatever nature, including reasonable attorneys’ fees, relating to or in any way arising from (a) the use of the Goods supplied hereunder, (b) the manufacture and/or use of any products made from such Goods, and (c) Buyer’s failure to pay any taxes for which it is responsible.
9. Limitation of Liability, Warranties
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR ELSEWHERE SELLER’S RESPONSIBILITY FOR LOSSES OR LIABILITIES ARISING OUT OF OR RELATED TO THE GOODS COVERED HEREUNDER AND THE CONTRACT DOCUMENTS ENTERED INTO PURSUANT HERETO SHALL NOT EXCEED THE PURCHASE PRICE HEREUNDER. SELLER’S OBLIGATION WITH REGARD TO DEFECTIVE GOODS SHALL BE LIMITED TO (a) REPLACEMENT OF SUCH GOODS AGAINST RETURN OF THE DEFECTIVE GOODS; (b) ISSUANCE OF A CREDIT THEREFORE AGAINST RETURN OF THE DEFECTIVE GOODS; OR (c) ISSUANCE OF AN AGREED-UPON ALLOWANCE, WITHOUT RETURN OF THE DEFECTIVE GOODS, ALL AT SELLER’S OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR (a) NORMAL MANUFACTURING DEFECTS, VARIATIONS IN COLOR OR SHADE, OR VARIATIONS FROM SPECIFICATIONS, OR (b) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, WHETHER SUFFERED BY BUYER OR A THIRD PARTY. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN WRITING FROM SELLER TO BUYER, SELLER MAKES NO WARRANTIES WITH RESPECT TO THE GOODS COVERED HEREUNDER, AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING THOSE OF MERCHANTIBILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER HEREBY DISCLAIMS ANY OIL RESISTANCE PERFORMANCE OR STAIN RESISTANCE PROPERTIES FOR ANY APPLICATION(S) UTILIZING CO-BASED/PFC-FREE DURABLE WATER REPELLANT(S). UNDER NO CIRCUMSTANCES SHALL SELLER BEAR ANY LIABILITY OR OTHERWISE BE RESPONSIBLE FOR GOODS DAMAGED OR OTHERWISE AFFECTED DURING SHIPMENT OR STORAGE AFTER GOODS HAVE LEFT SELLER’S FACILITIES, OR FOR ANY BILL AND HOLD GOODS. IN NO EVENT WILL SELLER BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWSOEVER CAUSED.
Buyer shall have no right to cancel all or any portion of its order unless it pays Seller for all costs already incurred by Seller to the date of cancellation, including the price of any goods or services required to fill the order already committed to by Seller, all cancellation charges incurred by Seller as a result of such cancellation including overhead and general and administrative costs pertaining thereto at Seller’s then current rates therefor. In the event of Buyer’s cancellation of any order or portion thereof, Seller shall be entitled to charge for profit against all cancellation charges.
11. Nylon Dye Stuffs
Nylon dyestuffs have a tendency to migrate from dark shades to light shades during washing or dry cleaning. Therefore, Seller will not guarantee that color transfer will not occur if light and dark shades are mixed together in the same end item. In addition, all neon shades and some high intensity shades are not fast to light. Seller does not guarantee color stability for colors produced from such dyestuffs.
Goods ordered or purchased as “merchantable seconds” will be cuttable, although defects may be present in the Goods. If Buyer believes that the Goods are not merchantable for any reason, Buyer must notify Seller in writing within thirty (30) days of the invoice date of the Goods. Seller reserves the right (a) to require Buyer to supply Seller with samples representative of any claimed problem, and (b) to inspect the Goods in question prior to settling any claim of non-merchantability. NO CLAIMS WILL BE ALLOWED AND NO CREDIT WILL BE GIVEN ON ANY GOODS THAT HAVE BEEN CUT OR CHANGED FROM THE STATE IN WHICH THEY WERE AT THE TIME OF DELIVERY TO BUYER.
Buyer shall pay for all samples requested at prices established by Seller. Sample colors may not precisely match Buyer requirements. Samples shall be deemed approved and accepted by Buyer if written notice of rejection is not received by Seller within 10 days after date of delivery.
Taxes. Buyer represents that it is purchasing the goods for resale and agrees to pay all sales, use and property taxes payable by it with respect to the Goods, and further agrees to provide Seller evidence of any exemption from such taxation claimed by Buyer.
15. Arbitration and Governing Law
Any controversy arising out of these Terms of Sale, the Contract Documents, and/or the contract of sales entered pursuant hereto shall be settled by arbitration held in the City of New York, New York in accordance with the rules then in effect of the General Arbitration Council of the Textile and Apparel Industries, a division of the American Arbitration Association. In any arbitration proceeding, no arbitrator shall have authority or power to (a) modify or alter any express condition or provision hereof by an award or otherwise; or (b) award punitive damages or exemplary damages for or against any party to any proceeding. Each party shall bear their own costs of arbitration. The arbitration shall be held before 1 arbitrator selected in accordance with the rules then pertaining by the American Arbitration Association. The arbitrator shall have background in the textile industry or if are professionals shall have serviced the textile industry. These terms and conditions, the Contract Documents and any contract of sales entered pursuant hereto shall be governed by the laws of the State of New York, excluding its conflict of laws rules and excluding the United Nations Convention on the International Sale of Goods.
16. Assignment and Subcontracting
The Buyer shall not assign, transfer or novate these terms and conditions, any order, the Contract Documents, or any right or obligation thereunder or delegate any performance without Seller’s prior written consent.
17. Force Majeure
Seller shall not be liable or responsible to Buyer, nor shall Seller be deemed to have defaulted under or breached these Terms of Sale or the Contract Documents, for any failure or delay in fulfilling or performing any term of these Terms of Sale. When and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, explosion, or other natural disaster; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) epidemic, pandemic, or other national or regional emergency not in existence on the date of this Agreement; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) other events beyond the reasonable control of Seller. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its completion.
Any provision herein which is prohibited by the laws of any state or other jurisdiction
applicable hereto shall be ineffective to the extent of such prohibition, without invalidating the remaining provisions of the contract between the parties.
All provisions of these terms and conditions and the Contract Documents that by their sense and context are intended to survive until performance thereof shall survive any termination of the contract of sale entered into pursuant hereto.
Buyer represents and warrants that neither Buyer nor any of its officers or directors is, and that to the actual knowledge of Buyer, none of Buyer’s Agents is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental regulation, and that it is not directly or indirectly acting on behalf of any such prohibited person or entity and will not transfer or resell the Goods covered hereby to any such prohibited person or entity.
Any certification that Seller provides is based solely on information that supplier produces as of the date of the order. Seller does not conduct any separate testing on the products. Please be aware that at any time and without notice, suppliers may change their own product components. Seller bears no liability if such changes are made.