Provisions of Contract

This contract shall be interpreted under and governed by the laws of the State of Texas.

  1. ENTIRE AGREEMENT: (a) This contract supersedes Buyers purchase order or contract and contains the entire agreement between the parties. There are no oral understandings, options, warranties, representations relative to this contract which are not fully expressed herein. (b) Waiver of Seller of a breach by Buyer or any provision of this contract shall not be deemed a waiver of future compliance therewith, and such provisions as well as all other hereunder shall remain in full force and effect.
  2. ARBITRATION: ANY CONTRAVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT OR ANY MODIFICATION THEREOF OR ANY INTERPRETATION OR BREACH THEREOF SHALL BE SETTLED BY ARBITRATION BEFORE THREE ARBITRATORS IN THE CITY OF DALLAS, IN ACCORDANCE WITH THE TERMS HEREOF AND THE LAWS OF THE UNITED STATES AND/OR THE LAWS OF TEXAS (THE TEXAS GENERAL ARBITRATION ACT) BEFORE AND UNDER THE RULES THEN OBTAINING OF THE GENERAL ARBITRATION COUNCIL OF THE TEXTILE INDUSTRY OR THE AMERICAN ARBITRATION ASSOCIATION AS THE PARTY FIRST REFERRING THE MATTER TO ARBITRATION SHALL ELECT. The parties consent to the jurisdiction of the District Court of the State of Texas or the United States District Courts located in the State of Texas, whichever is first selected by the moving party, for all purposes, including enforcement of them arbitration agreement and proceedings and entry of any judgment on any award. And further consent that any process or notice of motion or other application to the Court or to a Judge thereof and any notice in connection with the arbitration proceeding or the institution of same may be serviced within or outside the State of Texas by registered or certified mail or by personal service, provided a reasonable time for appearance is allowed. The arbitrators sitting in any such controversy shall not have the authority or power to modify or alter any express condition or provision of this contract, or any modification thereof or to render an award which by its terms has the effect of altering or modifying any express condition or provision of this contract or any modification thereof. And no award may be made which imposes liability contrary to the provisions thereof or which is in excess of the specified measure of damages from the terms of submission and shall be wholly void and unenforceable.
  3. ANTICIPATION: No allowance for any anticipation unless provided on the face of this contract. Buyer to pay interest on overdue bills from date of maturity at the prevailing rate charged by Seller's factor in such case. If less than that permitted by law, otherwise up to the maximum amount permitted under the laws of the State of Texas.
  4. CREDIT AND PAYMENTS: (a) This is subject to a limit of credit determinable any time by Seller, his agent or factor. Seller reserves the right to limit or cancel Buyer's credit line upon notification to the Buyer. If Buyer exceeds his line of credit or if, in the opinion of the Seller, his agent or factor, the financial condition of the Buyer warrants such action, the Buyer on written demand by the Seller, and notwithstanding the selling terms stated on the face hereof, shall pay cash or anticipate payment before delivery of any shipments. Upon failure by Buyer to make such payment within 5 days, Seller shall have in addition to the other rights set forth in this contract or granted to it by law, the right to cancel the contract or bill all or any part of the undelivered merchandise at public or private sale holding Buyer responsible for any financial loss incurred. Approval of credit for one or more deliveries or contracts shall not be deemed a waiver of the provisions of this paragraph (b) Invoices shall be paid by Buyer in bankable United States funds at par, regardless of controversies related to other invoices or delivered or undelivered merchandise. (c) Checks or remittances received from or for the account of Buyer may be applied against amounts owing by Buyer, without accord and satisfaction of Buyers liability, regardless of writings, legends or notations on such check or remittance or of other writings, statements or documents. (d) Upon breach by Buyer as to any installment, Seller, at its option, may treat such breach as severable or as a breach of the entire contract, or giving notice of such election to Buyer.
  5. DELIVERY: (a) Seller reserves the right to make delivery of either ten (10%) percent over or under the specified quantity herein (b) Seller has been and will be dependent upon availability of finished goods and/or greige goods to be used in the performance of this contract. If deliveries thereof to Seller are delayed, reduced, cancelled or in any way interfered with, then Seller, upon notice to Buyer, shall have the right to apportion deliveries to this and other outstanding orders provided, if shipment of greige goods are reduced or cancelled. Seller's deliveries may, at Seller's option, be reduced or cancelled. (c) Unless otherwise stated, goods are sold f.o.b. shipping point. There shall be added to the purchase price a charge for delivery of less than full pieces. The acceptance of shipment by a common carrier or licensed public truckman shall constitute a delivery thereupon, title shall pass subject to Seller's right of stoppage in transit, except, however, that on goods for which payments are to be made in cash on or before delivery, title shall pass only upon receipt of full payment. (d) Goods held subject to Buyer's instructions, or where Buyer fails to supply shipping instructions, may be invoiced by Seller and Buyer shall pay for same at maturity of invoice so rendered. Goods invoiced and held by Seller in any event shall be held at Buyers risk and expense.
  6. DELAY IN DELIVERY: (a) Any delivery or tender made within thirty (30) days after the date specified for delivery herein shall constitute a good delivery or tender. Delay in delivery in excess of thereof shall entitle Buyer to cancel only that portion of any order which is excessively delayed, provided, however, to invoice such cancellation, Buyer must give Seller notice thereof in writing, sent by registered mail, and such cancellation shall take effect fifteen (15) days after receipt by Seller of such notice from Buyer, provided Seller has not shipped such merchandise in the interim. (b) Buyer agrees that delay in delivery or defect in quality shall entitle Buyer to cancel only that portion of any pattern, style or color and/or number which is delayed in delivery or defective in quality. (c) Delay in delivering sample pieces or other sample requirements shall not constitute a breach of this contract. (d) If delivery under this contract is prevented or delayed by labor disturbances, accidents, fire, war, government regulation, embargos, lack of shipping facilities or any cause of circumstances of whatever kind or nature (whether like or unlike the foregoing), beyond the Seller's control, Sellers time for performance shall be extended by the period of such delay. (e) Performances under this contract shall be modified to the extent made necessary by the compliance of the Seller, or any source of supply of Seller with government laws, rules and regulations. (f) If embargo or lack of shipping facilities prevents or delays delivery of any goods ready for shipment, Seller may immediately bill the goods, at which time title to the goods shall pass Buyer and Seller shall hold the goods for the account of the Buyer, who shall pay the invoices rendered. (g) Where Buyer has declared or manifested an intention not to accept delivery of goods, no tender or actual shipment by Seller shall be necessary and Seller may at its option give written notice to Buyer that Seller is ready and willing to deliver in accordance with the provisions of the contract and such notice shall constitute valid tender of delivery (h) Where Buyer prior to due date has declared or manifested an intention not to pay when payment for same falls due for any or all of the goods sold hereunder, then not withstanding that the time for payment of the goods sold has not yet arrive because of dating. Seller may, at its option, forthwith take such action as is herein provided by way of its remedies for breach of this contract by Buyer including institution of arbitration proceedings to effect collection (i) If the merchandise is in a deliverable state or is in the process of manufacture Seller may at its sole discretion defer delivery or defer any installment delivery at the request of the Buyer, but any such deferment shall bear interest at the prevailing rate charged by Seller's factor in such case, and in no even shall any deferment of delivery of delivery or deferment of any installment delivered exceed a period of thirty (30) days.
  7. CLAIMS AND ALLOWANCES: (a) Seller shall not be liable for normal manufacturing defects nor for customary variations from quantities or specifications, nor for defects or irregularities beyond control of Seller or natural or to inherent in any particular fiber, yarn, fabric or construction or process or the dyeing or printing thereof; nor for defects latent or patent inherent in any particular type of printing and/or dyeing, or processing, including Koratron and any other durable press processing, bonding, and laminating in the event of any claim that the quality of the goods delivered to Buyer or its agent. If Buyer or its agent fails to make such offer to Seller or to afford full opportunity for examination, Buyer shall not be entitled to any reduction, allowance or claim with respect to such goods. Seller may within thirty (30) days after receipt of written notice by registered or certified mail from Buyer of claim for defective goods, examine and replace any merchandise which is found to be not in accordance with the contract and in such event, no claim may be made by Buyer. Buyer may cancel only the portion of the order pertaining to goods found to be defective in quality and not replaced by Seller. (b) Claims of any kind or nature, except for latent defects, are specifically barred, unless made in writing within thirty (30) days after the date of invoice, Claims for latent defects are barred unless made in writing within ninety (90) days after the date of the invoice, Notwithstanding the foregoing, all claims, whether for latent or patent defects, are specifically barred for goods after they have been cut or processed or changed from original state, and sponging, laminating, bonding, processing or in any manner changing the form of the goods by Buyer or its agent, constitute complete acceptance of such goods and absolute waiver of any claim for defects. All of the provisions of this section apply with equal force and effect to goods invoiced to the Buyer by the Seller and held by the Seller awaiting Buyer's shipping instructions. Such goods held on such bill and hold basis may be examined by Buyer at their location in Seller's plant upon reasonable notice to Seller and Seller agrees to permit Buyer and/or its agent, access to its plant for the purpose of examining such goods. Postponement of shipment at Buyer's request and/or failure by Buyer to inspect, shall in no way vary or extend the time for making claims either latent or patent detects.
  8. WARRANTIES: (a) Seller makes no warranties which extend beyond the description on the face hereof. and the Seller makes no warranties of merchantability and/or fitness for a particular purpose or end use unless otherwise stated herein. And, in the absence thereof. Buyer undertakes the complete and entire responsibility of making tests and ascertaining whether the goods purchased hereunder meet the requirements of, or are suitable for Buyers intended use. (b) lf the sale of merchandise Shown on the face hereof is by sample, delivery of merchandise of a quality substantially equal so such sample or superior thereto shall be a full compliance with this sales contract. (c) Exact matches of colors are not guaranteed by Seller, but goods delivered shill be a reasonable match to standard. Fabrics may vary in shade from piece to piece and Seller assumes no responsibility for such variations. Shade classifications and segregations are for convenience of Buyer only, and even though goods may be segregated as to shade, from packing unit to packing unit or within any packing unit, Seller assumes no responsibility for the accuracy of such segregation. (d) Unless specifically stated on the face of this contract, no warranty is made as to any factors of quality including but not limited to fastness of color (including fading. cracking and bleeding, washability and dry cleanability), breaking strength, permanence of finish, shrinkage or residual shrinkage, slippage, yield weight, resistance to abrasion, and frosting. (c) Any merchandise made or consisting wholly or in part of synthetic or natural yarn is sold subject to imperfections in such yarn over which Seller has no control .
  9. ASSORTMENTS: Buyer must specify assortment with order or within time required in this contract, or where no time is specified, within five (5) days from written notice. If Buyer fails to furnish assortment within time Specified, Seller, at its option, may (a) supply and invoice its own assortment; or (b) segregate the grey goods for the account of Buyer (which shall constitute full performance by Seller under this contract) and immediately invoice such grey goods at the finished goods price, If Buyer subsequently specifies assortment, Seller, to the extent that facilities were available to it, will finish the goods from available patterns and colors only, at no extra coat to Buyer; provided that any increased costs incurred in finishing goods resulting from Buyer's delay shall be paid by Buyer; or (c) treat the contract as breached and claim damages for breach thereof. If Seller permits Buyer to complete assortment after time specified, delivery date shall be extended for such period of time as Seller requires to complete performance.
  10. RISK: Goods invoiced and held el any location for whatever reason shall be at the Buyer's sole risk and account Goods held over thirty (30) days are subject to storage and other charges.
  11. PATTERN AND CONFINEMENT: (a) No rights in patterns or designs of goods covered by this contract shall pass to Buyer, except as an integral part of the goods, and. Buyer, for valuable consideration received, as a special inducement to Seller, agrees not to copy, reproduce. imitate or substantially adopt or cause to be copied, reproduced, imitated or substantially adopted, either directly or indirectly, or purchase from anyone else or use in the Buyer's operations, any such patterns or designs (b) No goods or patterns are confined to Buyer, nor are goods confined to Buyer for a particular price category, unless specifically shown on reverse hereof. Such confinements, if given, shall not be exclusive but shall limited to the specified field of the Buyer, and shall expire thirty (30) days after date of invoice of the goods so confined. Seller shall be responsible only for reasonable care in confining such pattern to the specified purpose and term. Reorders do not extend term of confinement.
  12. TRADE NAME: No right to the use of any trade-name or trade-mark of the Seller passes to Buyer under this contract and Buyer agrees to retrain either directly or indirectly from using any of Seller's trade-names or trade-marks unless specifically authorized to the Contrary by Seller in writing.
  13. INCREASE IN COSTS: Prices quoted in this contract are not subject to any rebate or modification, except that prices on any undelivered portion of this contract are subject to any future increase or decrease due to any governmental action and any present or future legislation affecting Seller's costs to the extent permissible by Federal or State laws or regulations.
  14. REMEDIES: If the Buyer is in default under or breaches or repudiates this or any other contract with the Seller or its Factor or fails to pay when due any invoice under said contracts, then, in addition to any and all other remedies which Seller may have hereunder or by law, Seller without notice (a) may bill and declare forthwith due and payable all charges for undelivered fabric under this or any other contract with the Buyer and/or (2) may defer shipment hereunder or under any other contract until such default, breach or repudiation is removed and/or (3) may cancel any undelivered portion of this and/or any other contract in whole or in part (the Buyer remaining liable for damages) and/or (4) may declare forthwith due and payable all outstanding bills of the Buyer under this or any other contract and/or (5) may at any time and from time to time (irrespective of whether title may have passed to Buyer or of any terms of credit) sell all or any part of the fabric for such sale and for any difference between the contract price and the amount received on such sale, Seller accounting to Buyer for any excess (the Seller having the right to become the Buyer of such fabric at any such sale),. And/or (6) Seller may take possession of any fabric Buyer has failed or refused to receive with right to hold or sell same as above provided, and/or (7) Upon breach by Buyer as to any installment, Seller, at its option may treat such breach as severable or as a breach of the entire contract on giving notice of such election to Buyer.
  15. SELLER'S LIABILITY: The limit of liability of Seller for defective merchandise shall be the difference in value on the contract date of delivery between the goods specified and the goods actually delivered. The limit of liability of the Seller for late delivery or non-delivery or any other breach and the fair market value of goods delivered or to be delivered on the contract date of delivery. Buyer shall not be entitled to damages for late delivery or non-delivery unless it actually purchases the same goods elsewhere at a higher price. In no event shall Buyer be entitled to claim against or receive from Seller any other damages whatsoever or any consequential, indirect and/or special damages and in no instance may damages include loss of profit on contemplated use or profit of any description.
  16. UNENFORCEABILITY: If any provision of this contract is or becomes, at any time and under any law, rule or regulation, unenforceable or invalid, no other provision of this agreement shall be affected thereby, and the remaining provisions of this agreement shall continue with the same effect as if such unenforceable or invalid provision shall not have been inserted in this agreement.
  17. LIMITATIONS OF PROCEEDINGS: The parties agree that any action or any claim by suit or arbitration must be instituted within one (1) year after any claimed breach occurs, and the failure to do so constitutes an absolute bar to the institution of suit or arbitration and a waiver of such claim.
  18. PAYMENT: Any amounts due Seller under this contract or otherwise are due and payable at Seller's place of business in Dallas, Dallas County, Texas.
  19. HEADINGS: The headings in this agreement are for purpose of reference only and shall not limit or otherwise affect the meaning hereof.