NATIONAL SPINNING OPERATIONS L.L.C.
TERMS AND CONDITIONS
The following provisions constitute the terms and conditions which shall apply to this purchase order (the “Purchase Order”) issued by National Spinning Operations, L.L.C. (hereinafter “Buyer”) to the vendor named therein (hereinafter “Seller”). These terms and conditions can only be modified in writing signed by both Buyer and Seller.
1. Seller’s Liability for Defective Deliveries. If any part of the goods delivered hereunder shall be defective or not in accordance with the Purchase Order, written notice given by Buyer to Seller not later than forty-five (45) days after actual discovery of said defect by Buyer, shall constitute timely notice, whether or not said defect be latent or patent and whether or not Buyer has dyed or in any other manner used, processed or changed the form of said goods. In such case, Seller shall be liable for all of Buyer’s damages, including, but not limited to, refund or credit of the purchase price, processing, freight and other expenses incurred by Buyer, any liability of Buyer to its customer, loss of sales and loss of profits incurred by Buyer, and any and all consequential or incidental damages and all other damages of any nature whatsoever, as well as Buyer’s reasonable attorneys’ fees.
2. Defense of Suit. Seller hereby agrees to defend any suit or proceeding brought against Buyer so far as based on a claim that any apparatus, or any part thereof, or any chemical product per se, furnished under the Purchase Order constitutes an infringement of any patent or any design patent of the United States of America, if notified promptly in writing and given authority, information and assistance (at Seller’s expense) for the defense of same, and Seller shall pay any and all damages and costs awarded therein against the Buyer. In the event said apparatus, or any part thereof, or said chemical product per se, is in such suit or proceeding held to constitute infringement and the use of said apparatus, or part thereof or chemical product per se is enjoined, Seller shall, at its own expense, either procure for Buyer the right to continue using said apparatus or part thereof or chemical product per se, or replace same with non-infringing apparatus or part thereof or chemical product per se, or modify it so it becomes non-infringing, or remove said apparatus or chemical product per se and refund the full purchase price and all of Buyer’s transportation, installation and all other costs relating thereto.
3. Arbitration. Any controversy arising out of or relating to the Purchase Order shall be resolved by binding arbitration in the City of Greenville, North Carolina pursuant to the Rules of Commercial Arbitration including the Supplementary Procedures for Arbitration Involving the Textiles and Apparel Industries then obtaining of the American Arbitration Association. The arbitrators sitting in any such controversy shall have no power to alter or modify any express provision of these Terms and Conditions or the Purchase Order or to render any award which by its terms effects any such alteration or modification. The parties consent to the application of the North Carolina or Federal Arbitration Statutes and to the jurisdiction of the Superior Court of Pitt County, North Carolina or the United States District Court for the Eastern District of North Carolina for all purposes in connection with this agreement to arbitrate. The parties further consent that any process or notice of motion or other application to either of said Courts or a Judge thereof may be served inside or outside the State or Eastern District of North Carolina by registered or certified mail return receipt requested, or by personal service, provided a reasonable time for appearance is allowed, or in such other manner as may be permissible under the Rules of said Court. Judgment on the award may be enforced by any court of competent jurisdiction.
4. Consolidation. If Buyer’s customer has, or does, commence an arbitration against Buyer arising out of the sale by Buyer of any goods made in whole or in part of the goods delivered hereunder, and whether or not processed in any manner by Buyer before such delivery to its customer, Buyer may, at its option, consolidate any arbitration under Paragraph 3 with any arbitration between Buyer and Buyer’s customer and Seller hereby consents to such consolidation.
5. Governing Law. These Terms and Conditions and the Purchase Order shall be governed by and construed in accordance with the State of North Carolina’s version of Article 2 of the Uniform Commercial Code on Sales (the “UCC”) or, to the extent not specifically covered by the UCC, then by other laws of the State of North Carolina in force and effect from time to time.