govinfo:USCOURTS-ncmd-1_24-cv-00168-0

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SOELECT INC., )
)
Plaintiﬀ, )
)
v. ) 1:24-cv-168
)
REDEX SAS, )
)

Defendant. )

MEMORANDUM OPINION AND ORDER
Lindsey A. Freeman, United States District Judge
This breach-of-contract case largely hinges on a single question: Did Soelect Inc.
(“Soelect”) and Redex SAS (“Redex”) enter into their contract with the intent that Redex
would complete its entire course of performance on or before March 2, 2024? The record
demonstrates that the parties disagreed on the answer to that question from the start. To
be sure, their contract is brief, so their disagreement is understandable. But at this stage—
on a motion for summary judgment—it is not the province of this Court to determine
which party’s version of the story it believes. Because the parties’ contract is ambiguous
as to whether Redex was required to complete performance on or before March 2, 2024,
and that ambiguity cannot be resolved without weighing evidence and crediting witness
testimony, Redex’s motion for summary judgment will be DENIED.

FACTS & PROCEDURAL HISTORY1
I. Soelect and Redex Enter into the Contract.
Soelect is a technology company incorporated in Delaware and headquartered in
Greensboro, North Carolina that manufactures material to be used in lithium batteries
for electric vehicles. Dkt. 2 8-3 at 23:12-24:5. When producing lithium -ion batteries, the
raw lithium metal typically needs to be passed through a n extruder to make it thin
enough to be used in electric car batteries. Dkt. 28 -1 at 167:17-168:15. After years of
buying previously- extruded lithium -ion foil from third- parties, S oelect ultimately
decided to cut costs by purchasing its own extruder to process raw lithium metal in-
house. It settled on the PLE2 Extrusion Press (the “Machine”) , a product oﬀered by
Redex, a French company that specializes in designing and manufactur ing precision
machinery for metal processing. See Dkt. 28-3 at 7:18-8:1; Dkt. 25-1 (“Contract”) at 1.2 On
October 20, 2022, Soelect and Redex executed a purchase order (the “Contract”) for Redex
to manufacture and supply to Soelect the Machine for a price of around 1.1 million euros
(about 1.3 million U.S. dollars). Contract at 1, 6.

1 Because Redex moves for summary judgment on both its counterclaims and Soelect’s
claims, the Court recounts the facts in the light most favorable to Soelect, the nonmovant.
See Est. of Jones by Jones v. City of Martinsburg, 961 F.3d 661, 664 (4th Cir. 2020).
2 All pin citations to exhibits ﬁled in connection with Redex’s motion for summary
judgment refer to the exhibits’ internal document page number, Bates number, or contract
provision.

The Contract outlines the scope of the parties’ obligations at only a high level. It
appears that the parties’ performance was to proceed in sequential steps , although the
parties dispute the exact order of performance . See Dkt. 27 at 3- 4; Dkt. 28 at 5- 6. The
Contract ﬁrst requires that Redex ask Soelect to conduct a so- called “Preliminary
Inspection” to occur “[o]ne month before shipment” of the Machine. Contract § 2.1.1. It
further states that “[t]he equipment shall be shipped only after preliminary inspection
by Soelect.” Id. (bolded and underlined in original). Next, the Contract explains that
Soelect was to “proceed” with a Factory Acceptance Test (“FAT”). Id. § 2.1.2. The parties
agree that the purpose of F AT was to test whether the mechanical and electrical
components of the Machine functioned properly and safely. See Dkt. 25-3 at 49:4-50:13;
Dkt. 25-5 at 25:9-14, 36:23-37:14; Dkt. 28-3 at 21:16-22. They also agree that Soelect was
required to preside over FAT. See Contract § 2.2.1 (the FAT “shall proceed under
inspection by Soelect’s delegate ….”).
The Contract further obligates the parties to conduct an “Installation,” Site
Acceptance Test (“SAT”), and “Training” once the Machine was delivered to Soelect’s
facilities in North Carolina. Id. §§ 3.1-3.3. According to the Contract, Soelect and Redex
were to jointly “check all parts of the machine , then begin to install.” Id. § 3.1.1.
Thereafter, “Soelect shall proceed to the SAT,” id. § 3.1.2, whereby it would conduct two
tests of the Machine , a Preliminary Site Acceptance Test (“PSAT”) and Final Site
Acceptance, see id. § 3.2.1; see also id., App’x C1, C2. The contract sets the “[d]uration” for

SAT as “[u]p to 30 personnel days.” Id. at 2. The parties would ﬁnally engage in training
concerning how to properly operate the Machine upon completion of SAT. Id. § 3.3.1.
The critical provision for purposes of this dispute concerns Redex’s so-called “lead
time” for the project. Id. at 2. The Contract contained the following language: “Lead time:
12-16 months after receipt of order and down payment.” Id. The term “lead time” is
never deﬁned in the Contract, but the Contract does clarify that Soelect was to pay “30%
of the order value … as a down payment” to be “due upon receipt of the invoice ,”
indicating that the “lead time” would begin sometime after Soelect received and paid an
invoice from Redex. Id. Both parties agree that the “lead time” provision established a
timeframe for Redex’s performance, although they dispute what exactly Redex needed
to complete within that window and whether Redex was required to strictly comply with
the sixteen-month deadline. See Dkt. 27 at 3 (“The only contractual time frame set forth
in the Contract was the lead time of 12 -16 months for delivery.”); Dkt. 28 at 14 (arguing
that the parties understood “lead time” to encompass Redex’s completed performance).
Other relevant language in the Contract appears under the heading “Development
agreement.” See Contract § 3.4. The Contract states that the parties “agree to work
together, using their best endeavors to obtain the performance guarantees given in
‘ Appendix C2,’” which concerns Final Site Acceptance for the Machine, “within 9 months
of delivery to the Soelect facility.” Id. § 3.4.1. It further adds that “[i]f further visits to site
are required by [Redex], over and above the 30 days included in the contract, then special

reduced rates will apply” to pay certain Redex employees for assistance at Soelect’s
facilities. Id. § 3.4.3. The Contract confers on Soelect “the right to terminate the
development agreement early and release the ﬁnal payment term.” Id. § 3.4.4.
II. The Parties Begin Performance.
Redex invoiced Soelect for the Machine soon after the parties entered into the
Contract, and Soelect conﬁrmed receipt on October 25, 2022. See Dkt. 28-7 at RED0154.
Soelect remit its deposit for the Machine to Redex on November 2, 2022. See Dkt. 28-3 at
24:18-20. The parties agree that the “lead time” began when Soelect paid Redex its down
payment, so the sixteen -month period would have expired on March 2, 2024. See id. at
24:21-25:1; see also Dkt. 27 at 3; Dkt. 28 at 6-7.
The parties’ confusion over the timing of Redex’s performance arose almost
immediately after the “lead time” supposedly began. In a November 4, 2022, email,
Redex’s Business Development Manager, Stephen Tighe, explained to Soelect that he
“expect[ed] the factory acceptance” of critical items for the Machine “to be in France in
January 2024,” permitting “a preliminary acceptance in March 2024.” Dkt. 28 -7 at
RED0153. Jin Cho, Soelect’s Founder and CEO, responded to Tighe’s email surprised by
Tighe’s proposed schedule. Id. According to Cho, Soelect promised its investors that it
would “complete extrusion installation” in North Carolina by the end of 20 23, asking
another Soelect employee on the email chain if he had misunderstood something. Id. Cho

added, “We cannot accept the schedule. If Redex needed 17 months for the preliminary
test then, I don’t think we chose Redex.” Id.
At ﬁrst, Tighe appeared to resist Cho’s understanding of the Contract. In a
response email, Tighe copied “from [Redex’s] quote relating to delivery time,” which he
claimed stated that delivery time would typically be “12-16 months after receipt of order
and down payment,” but “exact delivery times depend upon the workload and will be
conﬁrmed at order placement.” Id. at RED0152 (citation modiﬁed). Although Tighe
disagreed with Cho, he warranted that Redex would “look at the possibility of pulling
[the project] forward“ and do its “best to fulﬁll [Soelect’s] requirements.” Id.
In his next email on the chain, Tighe appeared to capitulate . In response to an
email from Soelect requesting a proposed schedule from Redex, Tighe stated
unequivocally that “[w]ork will be completed within 16 months as requested by Jin.” Id. at
RED0151 (emphasis added). The schedule he attached to the email indicates that
“delivery to site” of the machine would occur sometime in December 2023, “preliminary
acceptance test” would occur in January 2024, and “ﬁnal acceptance test” would occur by
March 2024. Dkt. 28-2. Tighe’s email echoes the deadlines in Redex’s proposed schedule.
See Dkt. 28-7 at RED0151. This reassurance apparently satisﬁed Soelect because the
parties agree that they communicated only sporadically over the next year. See Dkt. 27 at
5 (“Between November 2022 and October 2023, there was little communication from

Soelect regarding the timing of delivery of the Machine.”); Dkt. 28 at 6-8 (recounting little
communication between the parties between November 2022 and October 2023).
III. Delays Disrupt Performance in Accordance with the November 2022 Schedule.
After months of relatively little communication, the business relationship between
the parties began to deteriorate around September 2023. At that time, Redex experienced
delays on account of a third-party manufacturer involved in production of the Machine,
Trinks Inc. (“Trinks”). The Machine has two component parts, a hydraulic press and an
exit section. Dkt. 28-3 at 93:13-24. Redex contracted out manufacturing of the hydraulic
press to Trinks. See Dkt. 28-13 (invoice between Redex and Trinks for a lithium extrusion
press); see also Dkt. 28 -3 at 17:9-15 (explaining that Trinks separately assembles the
hydraulic press). The November 2022 s chedule indicates that Redex anticipated that
Trinks would deliver the hydraulic press to its facilities sometime in October 2023. See
Dkt. 28-2. But Trinks experienced delays , which it conﬁrmed to Redex when Redex
visited Trinks’ factory in September 2023. See Dkt. 28-14. A memorandum prepared by
Redex following the visit appears to state that the press “will be ready by start to mid of
October,” Dkt. 28- 14 at RED0011, which Tighe later clariﬁed meant that the hydraulic
press would be ready to ship to Redex in October 2023, Dkt. 28-3 at 39:5-13. Accordingly,
Redex was now far behind its timeline under the November 2022 schedule and without
one of the component parts necessary to complete the Machine . Indeed, u nder the
November 2022 schedule, Redex was slotted to receive the hydraulic press from Trinks in

October 2023 and begin ﬁnal assembly of the Machine by the end of that month. See Dkt.
28-2.
Facing the prospect that it would not receive the hydraulic press until mid-October
at the earliest , Redex asked Soelect for more time. Tighe sent Soelect ’s Business
Development Manager, John Lee, an updated schedule on November 10, 2023. See Dkt.
28-16 at RED0124. According to Tighe, he intended for the updated schedule to replace
the schedule he provided to Redex in November 2022. Dkt. 2 8-3 at 72:23-73:6. The
updated schedule placed the FAT for January 18, 2024, at Redex’s facilities in France. Dkt.
28-17. Delivery to Soelect would be completed sometime in February 2024, but ﬁnal
testing on the machine was proposed to be completed April 5, 2024, outside of the parties’
sixteen-month “lead time.” Id.
Only a week-and-a-half later, Trinks conﬁrmed by email that the hydraulic press
shipped from its facilities on November 20, 2023 —far behind its initial quote —with an
anticipated delivery to Redex on January 1, 2024 . Dkt. 28-18. This left Redex in a bind.
Even if Trinks ’ delivery was timely, that still only left Redex two- and-a-half weeks to
complete assembly of the Machine in preparation for FAT under the revised timeline it
had just proposed to Soelect. See Dkt. 28-17 (setting January 18, 2024, as the date for
“Factory acceptance test FAT at Redex France”).
On December 1, 2023, Tim Price, Soelect’s Chief Financial Oﬃcer, emailed Ullrich
Speer, Redex’s Vice President of Sales and Marketing, “to address a signiﬁcant concern

regarding our recent business dealings.” Dkt. 28- 20 at RED0266. He continued,
“Regrettably, it has come to our attention that the delivery schedule outlined in the
agreement has yet to be adhered to, resulting in a substantial delay exceeding 16 months.”
Id. at RED00267. He formally notiﬁed Redex of its “evident” breach of the Contract and
“proposed [a] video meeting” to discuss. Id. Speer responded, explaining that Redex
had experienced delays because of “our supplier,” which “did not tell the truth to us”
about when it could deliver one of the Machine’s component parts. Id. at RED0265. Speer
recounted what he believed to be the parties’ course of dealing with respect to Redex’s
time for performance, explaining that the updated schedule sent on November 10, 2023,
was merely intended to “go[] back to the initial program with the FAT in January and
preliminary acceptance in March,” which he contended was the schedule “[w]hen the
[Contract] had been signed.” Id.
Redex followed up on Speer’s email by again proposing a revised schedule. The
schedule would place delivery of the Machine to Soelect—not completion of SAT—before
March 2, 2024. Id. at RED0261. Price responded that the schedule was unacceptable
because it “still leaves Soelect without a working extrusion machine in the agreed upon
timeframe, which will have signiﬁcant negative consequences to Soelect, our investors,
and our custome rs.” Id. at RED0259. He requested that Redex “ provide ﬁnal
conﬁrmation by the end of day on Monday, December 18th whether Redex can meet the

original timeline with a project completion (pass ﬁnal SAT) by March 2, 2024. ” Id. at
RED0260.
Tighe responded on December 20, 2023, explaining that the Contract only required
Redex to deliver the Machine within the sixteen -month “lead time” (even if not fully
functional). Id. at RED0257. He clariﬁed that the Contract “includes a development phase
lasting up to 9 months from delivery to ﬁnal acceptance (Section 3.4) ,” adding that
“installation has to be carried out by Soelect with supervision from Redex.” Id.
According to Tighe, “ [t]his [was] one of the main reasons why lead times are always
either ex-works or delivery to a speciﬁed place.” Id. At his deposition, Tighe explained
that the term “ex-works” refers to product acceptance “available at the door of the factory
which has produced the machine” rather than “delivered to the ﬁnal customer.” Dkt. 28-
3 at 76:9-20.
IV. After Oﬀering an Amendment, Soelect Formally Terminates the Contract.
Lacking reassurance from Redex that it would complete performance by March 2,
2024, Price sent a letter to Speer on December 22, 2023, formally requesting that Soelect
and Redex sign an amendment to the Contract. Dkt. 28 -10. The proposed amendment
imposed several “conditions” on Redex, which purported to augment the dates for
various stages of Redex’s performance, including pushing certain milestones outside of
the “lead time” window . Id. at SOELECT_000050. In exchange, Soelect demanded that
Redex agree to a revised payment schedule. Id. at SOELECT_000051.

Redex refused to sign the amendment , see Dkt. 25-10; Dkt. 25-11 at RED0238, so
the parties met a ﬁnal time on January 9, 2024, which is memorialized in an email from
Speer, see Dkt. 25-12. At the meeting, Price stated that if the parties did not reach an
agreement on a revised schedule by January 12, 2024, Soelect would rescind the Contract
and request a refund of its down payment. See Dkt. 28-21 at RED0080. Redex did not
provide assurance within that window. See Dkt. 28-8 ¶ 11.
Redex ﬁnally received delivery of Trinks’ hydraulic press on January 15, 2024. See
Dkt. 28-19. The next day, Tighe emailed Soelect to explain that Redex was in the process
of preparing for FAT . Dkt. 28 -22. He again emailed on January 17, 2024, with a
photograph of the Machine, Dkt. 28-23, explaining that Redex had “ﬁnished assembling
the extrusion press,” id. at SOELECT_000011. He added that Redex “would appreciate a
decision urgently regarding the FAT visit so that we can plan accordingly.” Id.
Determining from the photograph that the Machine was still far from operable, complete,
or ready for FAT, Dkt. 28-1 at 58:6-61:15; see also Dkt. 28-23, Soelect provided Redex with
a formal notice of termination of the Contract, Dkt. 28-24.
On February 29, 2024, Soelect ﬁled this lawsuit seeking refund of its down
payment to Redex and other damages arising out of Redex’s alleged breach of the
Contract. See generally Dkt. 1. Redex ﬁled an answer in May 2024 and counterclaimed
against Soelect, asserting that Soelect had instead breached the Contract by refusing to
proceed with FAT at Redex’s facilities. See generally Dkt. 7 . The parties completed

discovery on December 19 , 2025, see Dkt. 20-1, and, thereafter, Redex ﬁled a motion for
summary judgment on its counterclaims and Soelect’s claims , see Dkt. 25.3 The parties
have briefed that motion, Dkts. 27-29, and it is thus ripe for this Court’s review. For the
reasons stated below, Redex’s motion for summary judgment is denied.
STANDARD OF REVIEW
The Court may grant summary judgment only if it determines that the movant—
here, Redex—“shows that there is no genuine dispute as to any material fact” and that it
“is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (a). A fact is material if it
may aﬀect the outcome of the parties’ dispute, and a dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). When reviewing the record on summary
judgment, the Court is bound to construe the facts and “all reasonable inferences drawn
therefrom” in the light most favorable to the nonmovant—here, Soelect. See Aleman v.
City of Charlotte, 80 F.4th 264, 283-84 (4th Cir. 2023). Importantly, the Court may not credit

3 As Soelect points out, Dkt. 28 at 19 n.12, Redex did not move for summary judgment in
accordance with this Court’s Local Rules, see L.R. 56.1. “ Any party who intends to ﬁle a
motion for summary judgment … must ﬁle and serve notice of intention to ﬁle a
dispositive motion within 14 days following the close of the discovery period.” Id. 56.1(a).
Redex never ﬁled a notice of intent to ﬁle a dispositive motion within fourteen days of
the close of discovery on December 19, 2025. When no notice is provided, the motion
“will not be reached b y the Court prior to trial unless the court determines that its
consideration will not cause delay to the proceedings.” Id. 56.1(g). While the Court
concludes that no delay will be caused by considering Redex’s motion, it is reminded to
review this Court’s Local Rules before future ﬁlings, especially as the parties’ scheduled
trial date quickly approaches.

the movant’s contrary evidence, weigh the evidence presented by either party, or resolve
factual disputes in the movant’s favor, even if the jury may be inclined to do so. Id. at
284. Nor is it the province of the Court at the summary judgment stage to assess the
credibility of witnesses. Dennis v. Columbia Colleton Med. Ctr., Inc. , 290 F.3d 639, 644- 45
(4th Cir. 2002). Summary judgment is thus inappropriate if, viewing the evidence in the
light most favorable to Soelect, a reasonable jury could return a verdict in its favor. See
Anderson, 477 U.S. at 248.
ANALYSIS
Redex moves for summary judgment, asserting several reasons why it is entitled
to judgment in its favor , but all its arguments suﬀer from the same fatal ﬂaw : They
presume that the parties’ contract is unambiguous as to Redex’s timing of performance.
It is not. To reach its conclusion, Redex consistently construes the facts in its own favor,
ignores contrary evidence, and tries to discredit the testimony provided by Soelect’s
witnesses. Because granting Redex summary judgment would require the Court to
misapply the summary judgment standards, Redex’s arguments will be rejected.
The parties present two competing narratives of the Contract and the events
between the parties. Redex’s arguments can generally be summarized as follows. The
Contract unambiguously required Redex to complete only FAT and delivery of the
Machine within the sixteen -month “lead time ,” see Dkt. 27 at 12; Dkt. 2 9 at 2, 4- 6, and
granted Redex an additional nine months to complete other performance obligations,

such as SAT, after delivery to Soelect’s facilities, Dkt. 27 at 4; see also Contract § 3.4.1.
Accordingly, in Redex’s estimation, the Contract eﬀectively granted Redex twenty-ﬁve
months to complete its entire performance. Because Redex was ready, willing, and able
to meet those performance deadlines, Soelect breached the Contract by unreasonabl y
terminating and refusing to participate in FAT , a condition -precedent to delivery. Dkt.
27 at 13-14; Dkt. 29 at 1-4. In the alternative, Redex argues that because the Contract did
not explicitly require strict compliance with performance deadlines, failure to abide by
the sixteen-month “lead time” was not a material breach of the Contract . See Dkt. 27 at
15-17. Therefore, Redex continues, it is entitled to summary judgment on its
counterclaims and Soelect’s claims because Soelect breached the agreement ﬁrst, so Redex
was relieved of its return performance. Id. at 18-19.
Soelect, for its part, maintains a diﬀerent narrative. While it does not cross-move
for summary judgment, it argues that the Contract is at least ambiguous as to whether
Redex was required to complete its entire performance within the sixteen -month “lead
time.” See Dkt. 28 at 13-17. It adds that the parties’ course of performance supports its
interpretation. Id. at 16- 17. And it asserts that Redex’s contrary interpretation of the
agreement can only be accepted through recourse to disputed material facts and
impermissible inferences in Redex’s favor at the summary judgment stage. See id. at 10-
13.

The Court agrees with Soelect that the Contract is ambiguous and that the
ambiguity must be resolved by a jury. The Court ﬁrst assesses unanswered issues of
governing law. Then it addresses the parties’ dueling interpretations of the Contract,
concluding that the Contract is ambiguous as to Redex’s deadline for performance. The
Court then rejects Redex’s arguments for why summary judgment is appropriate in this
case.
I. The Court W ill Apply North Carolina Law and the UCC to this Contract
Dispute.
Before the Court can proceed to the merits of Redex’s summary judgment motion,
the Court must address two preliminary questions left unaddressed by the parties , both
concerning the law applicable to their dispute. Neither party addresses what forum’s
law applies to the Contract, appearing to simply assume that North Carolina law supplies
the rules of decision . Additionally, Redex at times argues that Article 2 of the Uniform
Commercial Code (“UCC”) supplies the governing law where applicable, although
Soelect simply applies North Carolina common law without even addressing the UCC.4
North Carolina law applies , and the parties have waived any arguments to the
contrary. In diversity cases such as this one, the Court must determine the applicable law
to the parties’ dispute. That requires that the Court look at the choice-of-law rules of the
forum state—here, North Carolina. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc. , 313 U.S.

4 North Carolina adopted the UCC, including Article 2, through Article 25 of the General
Statutes. See N.C. Gen. Stat. § 25-2-102.

487, 496 (1941). Under North Carolina law, a contract is governed by North Carolina law
if the underlying transaction bears an “appropriate relation” to the state. N.C. Gen. Stat.
§ 25-1-301(b). North Carolina courts interpret the phrase “appropriate relation” to
impose the law of the state with the most signiﬁcant relationship to the contract, usually
the “state where the contract was made or, in certain instances, by the law of the state of
performance.” Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 854 (1988).
The Contract does not contain an express choice -of-law provision. Nor is it clear
based on the record whether the Contract was formed in North Carolina. And it appears
that performance was to occur both in France and North Carolina , so arguably either
forum’s law could apply. But the parties implicitly agree that North Carolina law
governs their agreement by both applying it in their briefs. Choice-of-law issues may be
waived, and failure to advance the argument that another forum’s law should apply to a
dispute waives that objection. See Wiener v. AXA Equitable Life Ins. Co., 58 F.4th 774, 779-
81 (4th Cir. 2023) (observing that every federal court of appeal has concluded choice -of-
law issues may be waived by the parties and holding that a party waived any choice-of-
law issues by failing to expressly raise them ). Because the parties have waived the
argument that the law of France or another forum should apply to this dispute, the Court
will apply North Carolina law.
Additionally, Redex is correct that, where applicable, the Contract is governed by
the UCC, rather than North Carolina common law , because it is primarily a contract for

the sale of goods. The Contract is a mixed contract, providing for the sale of goods ( i.e.,
sale of the Machine) and services (i.e., manufacturing, delivery, installation, and training).
See, e.g., Contract at 1 (outlining “equipment” to be supplied by Redex, including the
Machine); id. at 2 (outlining “services” to be provided by Redex). North Carolina courts
look to the primary purpose of a mixed contract to determine whether it falls within the
scope of the UCC. See Hensley v. Ray’s Motor Co. of Forest City, Inc., 158 N.C. App. 261, 580
S.E.2d 721, 724 (2003) (adopting the predominant factor test); see also N.C. Gen. Stat. § 25-
2-102. In assessing a contract’s primary purpose, the Court considers three factors: (1)
the language of the parties’ contract; (2) the nature of the supplier’s business; and (3) the
intrinsic worth of the materials involved. RMS Tech., Inc. v. TDY Indus., Inc., 64 F. App’x
853, 855 (4th Cir. 2003) (citing Coakley & Williams, Inc. v. Shatterproof Glass Corp., 778 F.2d
196, 197 (4th Cir. 1985)). If the “predominant factor of a contract is the rendition of
services with the sale of goods incidentally involved, the UCC is not applicable, ” but if
“the predominant factor of the contract is the sale of goods with the provision of services
incidentally involved, the UCC controls.” Hensley, 580 S.E.2d at 724.
Applying the three factors above, the Court concludes that the provision of
services is incidental to the sale of goods. The Contract itself is split between outlining
the good to be sold—the Machine —and the s ervices to be rendered. See Contract at 1-2.
But it is entitled “Purchase Order,” see id. at 1 (quotation modiﬁed), and the Contract’s
appendixes outline the speciﬁcations of the Machine and tests to ensure its components

are working, see generally id. , App’x A-C2, suggesting that the parties were primarily
concerned with the Machine itself, rather than the services to be rendered in connection
with it. The record also reveals that Redex is primarily in the business of designing,
manufacturing, and selling precision machinery. See, e.g., Dkt. 28-3 at 7:18-8:9. That the
Machine was to be designed according to custom speciﬁcations does not render the
Contract a services contract. See DeMaria B ldg. Co., Inc. v. Lab ’y Design, Equip. &
Installations LLC, No. COA24-882, 2025 WL 1703953, at *4-5 (N.C. Ct. App. June 18, 2025)
(contract for design, manufacturing, sale, and installation of custom items was still
governed by UCC). And the intrinsic value of the Machine was its fair market value when
complete. Indeed, the parties’ dispute is before this Court because, to Soelect, the
Machine’s value was substantially impaired unless it was completed and operable by
March 2, 2024, at the latest. See, e.g., Dkts. 28-7, 28-10. All three factors thus indicate that
the primary purpose of the Contract was for the sale of goods.
Having addressed the issues regarding governing substantive law, the Court
proceeds to the merits of Redex’s motion. The Court will begin by addressing Rede x’s
counterclaims before proceeding to a short analysis of Soelect’s claims. Because Redex’s
motion is denied to the extent that it seeks summary judgment on Soelect’s claims for
much the same reason as its motion is denied to the extent it seeks summary judgment
on its own counterclaims, most of the Court’s analysis focuses on Redex’s counterclaims.

II. The Contract is Ambiguous as to Redex’s Deadline for Performance, and that
Ambiguity Creates Genuine Disputes of Material Fact Precluding Summary
Judgment on Redex’s Counterclaims.
The parties’ contract is ambiguous as to when Redex was required to provide
Soelect with the complete and operable Machine . That ambiguity cannot be resolved
without reference to disputed extrinsic evidence of the parties’ intent. Viewing the facts
in the light most favorable to Soelect, a reasonable jury could conclude that the Contract
required Redex to complete its performance on or before March 2, 2024 . Summary
judgment is therefore inappropriate.
Thanks to their dueling interpretations of the Contract, Soelect and Redex agree
that a breach occurred, but they disagree about which party failed to perform its
obligations. Redex argues that the Contract unambiguously granted it twenty- ﬁve
months to complete its course of performance because it granted Redex an additional
nine months to complete certain performance obligations, such as SAT, so long as it
delivered the Machine to Soelect within the sixteen -month “lead time.” See Dkt. 27 at 4,
12; Dkt. 29 at 2, 4-6. Redex asserts that Soelect breached the Contract due to its failure to
participate in FAT, a condition-precedent to Redex’s return performance to deliver the
Machine. Dkt. 27 at 13- 14; Dkt. 29 at 1- 4. On the other side, Soelect contends that the
Contract is ambiguous as to whether Redex was required to complete its entire
performance within the sixteen-month “lead time,” adding that the nine-month language
in the “Development agreement” was unrelated to the total lead- time set out under the

Contract. See Dkt. 28 at 13- 18. Soelect views its decision to terminate the Contract as a
permissible course of action considering Redex’s anticipatory repudiation that it could
not meet the deadlines set forth in the Contract. See Dkt. 28 at 3. A determination as to
which party breached the Contract therefore hinges on an interpretation of the term “lead
time.”
Under North Carolina common law,5 to succeed on breach of contract claim a
party must prove (1) the existence of a valid contract, and (2) breach of its terms.
Intercollegiate Women’s Lacrosse Coaches Ass’n v. Corrigan Sports Enters., Inc., 694 F. Supp.
3d 625, 680 (M.D.N.C. 2023) (“IWLCA”). Under the UCC, “[a] contract for sale of goods
may be made in any manner suﬃcient to show agreement, including conduct by both
parties which recognizes the existence of such contract,” N.C. Gen. Stat. § 25-2-204(a), and
it will not fail for indeﬁniteness even if material terms are left open so long as “the parties
have intended to make a contract and there is a reasonably certain basis for giving an
appropriate remedy,” id. § 25-2-204(c).
A material breach is a breach that “substantial ly defeats the purpose of the
agreement,” “goes to the very hea rt of the agreement, ” or “can be characterized as a
substantial failure to perform.” Supplee v. Miller-Motte Bus. Coll., Inc., 239 N.C. App. 208,
768 S.E.2d 582, 593 (2015). When a breach is material to the agreement, that breach will

5 The UCC does not explicitly outline the elements of a breach of contract claim. The
common law gap- ﬁlls for the UCC when the UCC contains no express provision
concerning the matter. See N.C. Gen. Stat. § 25-1-103(b).

typically absolve the counterparty of return performance. McClure Lumber Co. v.
Helmsman Const., Inc., 160 N.C. App. 190, 585 S.E.2d 234, 239 (2003); see also N.C. Gen. Stat.
§ 25-2-711(a). Not every breach is material, however, see Childress v. C. W. Myers Trading
Post, Inc., 247 N.C. 150, 100 S.E.2d 391, 395 (1957), and the determination as to whether a
breach is material is often a question for the jury, see Supplee, 768 S.E.2d at 593.
Here, because the parties’ arguments for breach are tied to a disputed contract
provision, a ﬁnding of breach (material or otherwise) is contingent on interpretation of
their contract. C ontract interpretation requires that a court review the language of the
contract to determine the parties’ intent at execution. State v. Philip Morris USA Inc., 363
N.C. 623, 685 S.E.2d 85, 90 (2009). At the summary judgment stage, the ﬁrst step of
contract interpretation is determining whether the agreement is ambiguous. See World-
Wide Rts. Ltd. P’ship v. Combe Inc., 955 F.2d 242, 245 (4th Cir. 1992) ; see also Archer Daniels
Midland Co. v. Brunswick County , 129 F. App’x 16, 23 (4th Cir. 2005) ( when sitting in
diversity over a contract dispute governed by North Carolina law , federal summary
judgment standards control). Then, the Court must then determine if it can interpret the
parties’ contract without resolving disputed issues of material fact. World-Wide Rts., 955
F.2d at 245. Accordingly, “[s]ummary judgment is appropriate in breach of contract cases
when the contract in question is unambiguous or when an ambiguity can be deﬁnitively
resolved by reference to extrinsic evidence.” SAS Inst., Inc. v. World Programming Ltd., 874
F.3d 370, 380 (4th Cir. 2017) (applying North Carolina law) (internal quotations omitted).

Summary judgment may be granted as to the interpretation of an unambiguous
contract because there are no fact issues to resolve. World -Wide Rts., 955 F.2d at 245; see
also Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., P.C., 362 N.C. 269, 658 S.E.2d 918,
921 (2008). The Court is limited to the four corners of an unambiguous contract to resolve
the parties’ disagreements. Lynn v. Lynn, 202 N.C. App. 423, 689 S.E.2d 198, 205 (2010) .
And o rdinarily an unambiguous contract leaves little room for a court to engage in
contract interpretation. See Philip Morris, 685 S.E.2d at 91 (“[W]hen the terms of a contract
are plain and unambiguous, there is no room for construction.” (internal quotations
omitted)).
If, on the other hand, an agreement is ambiguous , interpretation may require
recourse to facts in the record. See World-Wide Rts., 955 F.2d at 245; see also Crider v. Jones
Island Club, Inc., 147 N.C. App. 262, 554 S.E.2d 863, 866 (2001). Extrinsic evidence of the
parties’ intent may be introduced to clarify the agreement’s language. Int’l Paper Co. v.
Corporex Constructors, Inc., 96 N.C. App. 312, 385 S.E.2d 553, 556 (1989); see also N.C. Gen.
Stat. § 25-2-202. Summary judgment may still be proper if undisputed extrinsic evidence
of the parties’ intent resolves a contract’s ambiguities. See World-Wide Rts., 955 F.2d at
245; see also Holly Hill Mall, LLC v. Dunham’s Athleisure Corp. , No. 1:23- cv-547, 2025 WL
361223, at *5 (M.D.N.C. Jan. 31, 2025). But if that extrinsic evidence still leaves the parties’
intent unclear or requires resolution of disputed material facts , “interpretation of the
contract is for the jury.” Int’l Paper, 385 S.E.2d at 556; see also World-Wide Rts., 955 F.2d at

245 (if “resort to extrinsic evidence … leaves genuine issues of fact respecting the
contract’s proper interpretation, summary judgment must of course be refused and
interpretation left to the trier of fact”).
The Court is also mindful of some basic principles that guide North Carolina
courts when interpreting contracts . An agreement is to be construed using its plain
language by giving words their ordinary meanings unless they are specially deﬁned.
IWLCA, 694 F. Supp. 3d at 684; see also Crockett v. First Fed. Sav. & Loan Ass’n, 289 N.C. 620,
224 S.E.2d 580, 588 (1976) . Generally, interpretation should avoid constructions that
create surplusage—i.e. , a court should “construe an ambiguous contract in a manner that
gives eﬀect to all of its provisions, if the court is reasonably able to do so.” IWLCA, 694
F. Supp. 3d at 684 (internal quotation omitted). And, if the contract contains conﬂicting
language, general terms should give way to speciﬁc terms. Id.
Considering these summary -judgment standards and contract interpretation
principles, for the reasons discussed below Redex’s motion for summary judgment is
denied. The language of the Contract creates ambiguity as to the meaning of “lead time.”
And extrinsic evidence of the parties’ intent creates genuine disputes of material fact that
cannot be resolved on summary judgment.
A. The Contract ’s Terms are Reasonably Susceptible to Soelect’s
Interpretation.
Even assuming without deciding that Redex’s interpretation of the Contract is
reasonable, the Contract is ambiguous because , as Soelect argues, the term “lead time”

can be read to have required Redex’s complete performance. A contract is ambiguous if
it is “fairly and reasonably susceptible to either of the constructions asserted by the
parties.” WMC, Inc. v. Weaver, 166 N.C. App. 352, 602 S.E.2d 706, 712- 13 (2004). Even
where the terms of a contract appear clear, the speciﬁc facts of the case may create
ambiguity. See Galloway as Tr. of Melissa Gallow ay Snell Living Tr. Dated May 1, 2018 v.
Snell, 384 N.C. 285, 885 S.E.2d 834, 836 (2023). As the North Carolina courts have
consistently recognized, the mere fact that the parties even dispute the meaning of their
contract “is some indication that the language of the contract is, at best, ambiguous.” AC
Devs., LLC v. Edwards , 300 N.C. App. 1, 919 S.E.2d 762, 766 (2025) (quoting Dockery v.
Quality Plastic Custom Molding, Inc., 144 N.C. App. 419, 547 S.E.2d 850, 852 (2001)). That
observation rings true here.
The Court begins with the ordinary meaning of the language in the Contract. Cf.
IWLCA, 694 F. Supp. 3d at 684. The parties focus their dispute on the following language:
“Lead time: 12-16 months after receipt of order and down payment.” Contract at 2. As
both parties understand the phrase, the term “lead time” established a deadline for
Redex’s performance under the Contract . According to Redex, “[t]he only lead time
required by the Contract was delivery of the Machine within 12 to 16 months of the date
the down payment was made ,” see Dkt. 27 at 12, because Section 3.4.1 of the Contract
granted Redex nine additional months to complete SAT, see Dkt. 29 at 8. Soelect instead
contends that the “lead time” was intended to encompass Redex’s complete performance,

including completion of SAT , and that the nine months allotted as part of the
“Development agreement” had to occur within the larger 16-month “lead time.” See Dkt.
28 at 2-3, 15.
The dictionary deﬁnitions of “lead time” tend to suggest that the term
encompasses Redex’s complete performance under the Contract. See SAS Inst., 874 F.3d
at 380 (“Courts may resort to dictionaries to identify ‘the common and ordinary meaning
of words and phrases.’” (quoting Marcuson v. Clifton, 154 N.C. App. 202, 571 S.E.2d 599,
601 (2002))). Merriam-Webster deﬁnes “lead time” as “the time between the beginning
of a process or project and the appearance of its results.” Lead Time, Merriam -Webster,
https://tinyurl.com/mr23s2fw [https://perma.cc/UCT2-T5KA] (last visited May 9, 2026).
The American Heritage Dictionary of the English Language similarly deﬁnes the phrase
as “[t]he time between the initial stage of a project or policy and the appearance of
results.” Lead Time , Am. Heritage Dictionary of Eng. Language,
https://tinyurl.com/4eex6nk7 [https://perma.cc/6RN9-FR3Y] (last visited May 9 , 2026) .
While the Oxford English Dictionary takes a broader view of “lead time,” deﬁning it as
“[t]he time taken to produce some manufactured article ,” Lead Time , Oxford Eng.
Dictionary, https://tinyurl.com/yjjnyjfh [https://perma.cc/36H5-9CTV] (last visited May 9,
2026), the deﬁnition’s usage of “manufactured” to modify the word “article” also
suggests that “lead time” contemplates completed, rather than partial, performance.

The Contract’s language creates ambiguity as to the term “lead time” because
elsewhere it appears to suggest—as Redex argues—that Redex may have additional time
to complete performance. See State v. Philip Morris USA Inc., 359 N.C. 763, 618 S.E.2d 219,
225 (2005) (contractual meaning is derived not from the meaning of the term in a vacuum,
but its meaning in the contract as a whole). The Contract states that “Soelect and [Redex]
agree to work together, using their best endeavors[,] to obtain the performance
guarantees” outlined in Appendix C2 of the Contract “within 9 months of delivery to the
Soelect facility.” Contract § 3.4.1. Appendix C2 concerns Final Site Acceptance, and
appears to require that the Machine pass a ﬁnal test to ensure its operability, see id., App’x
C2, suggesting that the parties contemplated at the point of execution that the Machine
may require additional work from Redex to become completely operable, even outside
of the sixteen-month lead time. Proceeding from that assumption, “lead time” may not
have required completed performance on Redex’s part within sixteen months of Soelect’s
delivery because nine months were set aside at the back end to ensure the Machine passed
SAT.
Other language conﬂicts with the nine additional months Redex argues that the
Contract granted it post-delivery, though. Confusingly, the Contract twice appears to
recognize that only thirty days total were allotted for the entirety of SAT, see Contract at 2
(setting the “[d]uration” of SAT to “30 personnel days”), but that it could be longer “[i]f
further visits to site was required by” Redex, id. § 3.4.3. Additionally, the nine months

set aside as part of the “Development agreement” only concerns “performance
guarantees” for Final Site Acceptance, see id., App’x C2, suggesting that at least the ﬁrst
part of SAT, PSAT, still needed to occur within the “lead time” contemplated by the
Contract, see Contract § 3.4.2 (“If extra parts are required to obtain the performance
guarantee[s]” in Appendix C2, Redex will bear design costs and Soelect will bear
manufacturing costs); see also Dkt. 28 at 14- 15 (observing that SAT was to “occur in two
stages,” PSAT and Final Site Acceptance). That reading is supported by the requirements
of PSAT and Final Site Acceptanc e, which contemplate a progression between the two
tests, at least concerning the properties of the extruded lithium foil. Compare Contract,
App’x C1 (requiring 0.15-millimeter foil) with id. , App’x C2 (requiring 0.125-millimeter
foil). Redex’s reading is especially hard to square with another provision under the
“Development agreement” heading that grants Soelect a unilateral right to “terminate the
development agreement early and release the ﬁnal payment term.” Id. § 3.4.4. If Soelect
was always empowered to “terminate the development agreement early,” id., it seems
unlikely that the parties would have intended Redex to have twenty -ﬁve months to
complete its performance as a matter of right.
In short, the plain meaning of “lead time” suggests that it was intended to
encompass Redex’s completed performance under the Contract. While Redex is correct
that the contract appears to discretionarily grant it additional time at the back-end as part
of the “Development agreement,” that language conﬂicts with competing language that

appears to limit the entirety of SAT to thirty days and other provisions that constrain
Redex’s ability to employ the nine months allegedly granted by the “Development
agreement.” The limiting language in the “Development agreement” could be
harmonized with competing language to generally recognize that Soelect may require
additional time to complete its scope of work, but that additional time would only be
granted at the discretion of Soelect. So, even if Redex’s interpretation is reasonable,
Soelect’s competing reading of the Contract—that “[b]oth stages of SAT were to be
completed within the 16 -month lead time,” Dkt. 28 at 15 —is equally plausible. The
contract is thus ambiguous.
B. Extrinsic Evidence Cannot Clarify the Parties’ Intent Without Resolving
Genuine Disputes of Material Fact.
Even considering evidence extrinsic to the Contract, there is a genuine dispute as
to the meaning of “lead time.” See World-Wide Rts., 955 F.2d at 245. Construing the facts
in the light most favorable to Soelect, there is suﬃcient extrinsic evidence of the parties’
intent in the record that a reasonable jury could return a verdict in Soelect’s favor . See
Anderson, 477 U.S. at 248. That is so because Soelect introduces evidence suggesting that
the parties clariﬁed that “lead time” encompassed Redex’s complete performance soon
after entering into the Contract.
Although Redex minimizes the November 2022 email from its Development
Manager, Tighe, that email serves as strong evidence that the parties conﬁrmed their
understanding of “lead time” to include Redex’s entire course of performance . After

Tighe and Cho , Soelect’s Founder and CEO, disputed the deadline for Redex’s
performance only days after the “lead time” began , Tighe stated without qualiﬁcation
that “[w]ork will be completed” on the Machine “within 16 months as requested by Jin.”
Dkt. 28-7 at RED0151 (emphasis added). He added Redex “programmed delivery to site
in 2023 with preliminary acceptance in January 2024.” Id. The schedule Tighe attached
to his email unequivocally shows the deadline for the Contract sometime at the beginning
of March 2024, with both PSAT and Final Site Acceptance occurring before expiration of
that deadline. See Dkt. 28 -2. Tellingly, Redex only attempted to walk back Tighe’s
reassurances nearly a year later once it became clear that Trinks’ delays would cause
Redex to exceed the sixteen-month “lead time” that both parties initially concluded (after
a short disagreement) would encompass Redex’s entire course of performance. See, e.g.,
Dkt. 28-16 (proposing a revised schedule after learning Trinks would not be able to meet
its original timeline for shipping the hydraulic press); Dkt. 28 -20 at RED0265 (Speer,
Redex’s Vice President of Sales, defending the revisions on the ground that Redex’s
supplier “did not tell the truth” about being able to attain the original shipping schedule
for the hydraulic press).
Viewing the facts in the light most favorable to Soelect, a reasonable jury could
conclude that the parties conﬁrmed their understanding of “lead time” in November
2022. Because the Court construes the record in the light most favorable to the
nonmovant, Soelect, it is unnecessary for the Court to address the extrinsic evidence of

intent that Redex oﬀers in connection with its motion for summary judgment because the
November 2022 Tighe email is suﬃcient to create a genuine dispute of material fact for
trial. At this stage , it is enough that the Tighe email supports Soelect’s reading of the
Contract because, viewing the facts in the light most favorable to Soelect, subsequent
communication from Redex could be read as attempts to walk back Tighe’s earlier
assurances once it became clear that Redex could not meet its sixteen-month deadline and
Soelect would not give it more time. See Aleman, 80 F.4th at 283-84 (court may not resolve
factual disputes or draw inferences in favor of the movant). Summary judgment is
therefore inappropriate.
II. Redex’s Arguments Do Not Support Summary Judgment in its Favor.
Redex resists the Court’s straightforward conclusion that the ambiguous language
of the Contract, as well as the November 2022 Schedule and Tighe’s associated email,
creates a genuine dispute as to Redex’s timing for performance. Redex tries, and fails, to
put forth three arguments for why summary judgment may still be granted in its favor
on its counterclaims . First, it contends that the November 2022 schedule was never a
formal modiﬁcation of the agreement and therefore cannot be considered when
interpreting the parties’ intent. See Dkt. 27 at 6, 12; Dkt. 29 at 7. Second , it argues that
Soelect breached ﬁrst by refusing to participate in FAT at its facility in France, a condition-
precedent to delivery, absolving Redex of return performance. Dkt. 27 at 10-15. Third, it
claims that it was not required to strictly comply with the Contract’s sixteen-month “lead

time.” Dkt. 27 at 15- 17. All three arguments are unpersuasive, and summary judgment
is properly denied on Redex’s counterclaims.
A. The Court May Consider the Parties’ Course of Performance to Interpret
Their Intent.
Redex insists that the November 2022 schedule was never a formal modiﬁcation
to the agreement and therefore could not augment the “lead time ” it contends the
Contract envisioned. This argument is meritless. Redex is correct that the Contract states
that no “other agreement or written provisions supersede or modify the terms of [the
Contract], unless such agreement or provision is incorporated into [the Contract] in a
writing signed and dated by both parties ….” Contract § 5.1. But the parties did not need
to formally modify the Contract. Their performance under the Contract can serve as
evidence of the parties’ contractual intent. See N.C. Gen. Stat. § 25-2-202(1) (a contract for
the sale of goods “may be explained or supplemented by” the parties’ “course of
performance”); id. § 25-1-303(d) (course of performance “may give particular meaning to
speciﬁc terms of the agreement, and may supplement or qualify the terms of the
agreement”). Indeed, “the course of actual performance by the parties is considered the
best indicator of what they intended the writing to mean .” Braswell Egg Co. v. Poultry
Mgmt. Sys., Inc., 481 F. Supp. 3d 528, 538 (E.D.N.C. 2020) (quoting N.C. Gen. Stat. § 25-2-
202, cmt. 2).
Redex erroneously proceeds backwards, working from the assumption that the
Contract is unambiguous as to the timing of Redex’s performance. Were that the case,

subsequent evidence of the parties’ intent would not be properly considered by the Court.
See Lynn, 689 S.E.2d at 205. But, as explained above, the Contract is ambiguous, so
subsequent evidence of the parties’ dealings may be used to resolve ambiguities. See N.C.
Gen. Stat. § 25- 1-303(e). And to the extent that Redex asks this C ourt to credit its own
interpretation of the parties’ course of performance , the record reveals that the p arties
consistently disagreed about the timing of Redex’s performance, and the Court may not
resolve that factual dispute at this stage when suﬃcient evidence exists supporting
Soelect’s contrary view of the facts. See Aleman, 80 F.4th at 284. At minimum, there is a
genuine dispute as to whether Tighe’s email and the November 2022 schedule clariﬁ ed
the parties’ understanding of “lead time ” or whether Redex’s employees correctly
determined that the Contract allowed Redex to seek nine additional months.
B. It is Irrelevant Whether Participation in FAT was a Condition -Precedent
to Delivering the Machine to Soelect.
Redex next asserts that it could not have breached the Contract because Soelect
breached ﬁrst by refusing to participate in FAT. It essentially argues that Soelect refused
to proceed to FAT, which was a condition-precedent to Redex’s return performance to
deliver the Machine to Soelect’s facility on or before March 2, 2024. See Dkt. 27 at 12.
Again, Redex tries to ignore the ambiguities in the parties’ Contract and interpret
them in its favor. Redex’s entire position falls ﬂat on its face unless “[t]he only lead time
required by the Contract was delivery of the Machine within 12 to 16 months of the date
the down payment was made.” See id. But the Court is not in the position at this stage to

make that determination because the Contract is ambiguous as to the meaning of “lead
time,” and there is evidence such that a reasonabl e jury could endorse an interpretation
requiring Redex’s complete performance on or before March 2, 2024. See World-Wide Rts.,
955 F.2d at 245. Accordingly, it is irrelevant whether FAT had to occur before delivery
because Redex allegedly breached ﬁrst by asserting that it would not complete its entire
performance—not just delivery — within the sixteen month “lead time.”
Properly viewing the facts in the light most favorable to Soelect, there is a genuine
dispute as to whether Redex anticipatorily repudiated its obligation to complete
performance on or before March 2, 2024, entitling Soelect to cancellation . Under North
Carolina law, anticipatory repudiation “is a positive statement by one party to the other
party indicating that [it] will not or cannot substantially perform [its] contractual duties”
that occurs “before the time for performance under the terms of the contr act” arises.
Millis Const. Co. v. Fairﬁeld Sapphire Valley , 86 N.C. App. 506, 358 S.E.2d 566, 569 (1987)
(emphasis om itted). “When either party repudiates the contract with respect to a
performance not yet due the loss of which will substantially impair the value of the
contract to the other, the aggrieved party” may “resort to any remedy for breach ,”
including cancellation , and “suspend [its] own performance.” N.C. Gen. Stat. § 25- 2-
610(1)-(2); see also id. § 25-2-711.
There is ample evidence in the record indicating that Redex made clear it would
not complete performance by March 2, 2024. Beginning in November 2023, Redex stated

repeatedly and unequivocally that it could not complete its entire performance under the
Contract by March 2, 2024, taking the position that the Contract did not require such a
deadline. See, e.g., Dkt. 28-20 at RED0257-58, RED0260, RED0265; Dkt. 28-15 at RED0128.
It also tried to provide Soelect with updated schedule s placing completed performance
outside the sixteen -month “lead time.” See Dkt. 28 -16 at RED0124; Dkt. 28 -17. And
although Soelect oﬀered to amend the Contract to provide Redex more time, Dkt. 28-10,
Redex rejected that proposal on the grounds it would allow Soelect to push out payment,
see Dkt. 25-10. Faced with th ese repeated “positive statements” from Redex indicating
that it could not “substantially perform [its] contractual duties” within the sixteen months
allegedly allotted by the Contract, Soelect was “no longer required to … perform under
the contract,” at least when the facts are viewed in its favor. See Millis Const., 358 S.E.2d
at 569. By attempting to seek reassurances from Redex that it would timely perform
before eventually cancelling the Contract, Soelect undoubtedly treated Redex’s refusal to
perform as a breach, as well. See Proﬁle Invs. No. 25, LLC v. Ammons E . Corp., 207 N.C.
App. 232, 700 S.E.2d 232, 235 (2010) (“Even a distinct, unequivocal, and absolute refusal
to perform is not a breach unless it is treated as such by the adverse party.” ( quotation
modiﬁed and internal quotation omitted)). Indeed, Price , Soelect’s CFO, declared
Redex’s position an “evident” breach as early as December 1, 2023 , emphasizing the
importance to Soelect and its investors that Redex completed performance within the
“lead time” window. See Dkt. 28-20 at RED0267.

Record evidence thus reveals that there is a genuine dispute of material fact as to
whether Soelect was correct to deem Redex in material breach of the Contract . See
McClure Lumber, 585 S.E.2d at 239 (whether a breach is material, for purposes of
determining whether the non-breaching party is excuse d from its obligation to perform
further, is ordinarily a question of fact); see also N.C. Gen. Stat. § 25- 2-610 (repudiation
must “substantially impair the value of the contract” to the aggrieved party). There is
also a material dispute as to whether that breach entitled Soelect to resort to remedies for
breach, N.C. Gen. Stat. § 25-2-610(2), including cancellation of the Contract, id. § 25-2-711.
C. Redex’s Arguments Concerning Whether it was Required to Comply with
the Contract’s Timing Requirements are Meritless.
As a seeming last resort, Redex argues that it was not required to strictly comply
with timing requirements in the Contract because the Contract did not explicitly state as
such. Redex’s arguments are easily rejected. There is a genuine dispute of material fact
as to whether the sixteen -month “lead time” imposed a ﬁrm deadline on Redex’s entire
performance. Whether Redex was required to strictly comply with that deadline is a
question for the ﬁnder of fact because it goes to the materiality of Redex’s breach . See
McClure Lumber, 585 S.E.2d at 239. Redex’s two arguments to the contrary are misguided.
Redex ﬁrst asserts that because the Contract did not expressly deem its
performance as “time is of the essence,” the Contract did not require strict compliance
with performance deadlines. Dkt. 27 at 15. But Redex relies on inapposite North Carolina
common law delineating “a well -settled exception” to the “general rule” that “the

language of a contract should be interpreted as written” that only “applies to contracts for
the sale of real property.” See Harris v. Stewart, 193 N.C. App. 142, 666 S.E.2d 804, 807 (2008)
(emphasis added). In such contracts, “it has long been held that in the absence of a ‘time
is of the essence’ provision, time is not of the essen ce” and “dates stated” in a contract
“serve only as guidelines” that do not bind the parties. Id. (citing Douglass v. Brooks, 242
N.C. 178, 87 S.E.2d 258, 263 (1955)). But the Contract is not a contract for the sale of real
property (much less governed by North Carolina common law by default), and Redex
provides no support for the proposition that the exception recognized in Harris has been
applied beyond contracts for the sale of real estate. To the contrary, North Carolina courts
have expressly declined to do so. See, e.g., Yoder v. Verm, No. 23-cvs-001820-440, 2025 WL
1314303, at *8 (N.C. Super. Ct. May 6, 2025) (rejecting proposition that Harris or related
decisions applied outside the context of contracts for the sale of real property).
Based on the Court’s own research, the North Carolina Court of Appeals has only
once applied Harris to a contract governed by Article 2 of the UCC—there, a contract for
the sale of a boat—but the facts of the case are distinguishable. See D.G. II, LLC v. Nix ,
211 N.C. App. 332, 712 S.E.2d 335, 341- 42 (2011). For one, the sale of the boat, which
involved a closing and transfer of title , closely mirrored a contract for the sale of real
property. See id. at 342. But even more fundamentally, as explained above , unlike the
plaintiﬀ in Nix, who “never declared that defendants were in default” for failure to meet
the closing deadline and “took actions manifesting an intent that the closing could occur

at a later date,” id., Soelect repeatedly and consistently told Redex that completed
performance after March 2, 2024 was unacceptable. While the Court agrees with Yoder
that it is doubtful that the exception recognized in Harris extends beyond contracts for
the sale of real property, even under Nix, Redex’s arguments are unpersuasive. See Nix,
712 S.E.2d at 341-42 (“[F]or time to be of the essence, it must be so stated in the contract,
or the court must ‘ﬁnd anything in the contract or in the parties’ actions which demonstrate
their intent to make time of the essence.’” (quoting Johnson v. Smith, Scott & Assocs., Inc. ,
77 N.C. App. 386, 335 S.E.2d 205, 207 (1985) (emphasis added)).
Redex also contends that the UCC’s default rule of performance within “a
reasonable time” dictates that it was not required to strictly comply with the sixteen -
month “lead time.” Dkt. 27 at 16 ( citing N.C. Gen. Stat. § 25-2-309). It is true that under
the UCC “[t]he time for shipment or delivery or any other action under a contract if not
… agreed upon shall be a reasonable time.” N.C. Gen. Stat. § 25-2-309(a) (emphasis added).
But the rule is nothing more than a default presumption. See Maxwell v. Michael P. Doyle,
Inc., 164 N.C. App. 319, 595 S.E.2d 759, 764 (2004) (where a contract is silent on the timing
of performance, a “reasonable time” limitation will be inferred). Here, both parties agree
that the “lead time” provision does supply some sort of timing requirement on Redex’s
performance, they only disagree about what performance was covered by it. The parties’
express timing provision displaces the default presumption. See N.C. Gen. Stat. § 25- 2-
309, cmt. 1; see also Wall Recycling, LLC v. 3TEK Global, LLC, No. 22-1271, 2024 WL 3594697,

at *5 (4th Cir. July 31, 2024). And, in any event, the ﬁnder of fact could still infer a “deﬁnite
time” for Redex’s performance “from the contractual circumstanc es, usage of trade or
course of dealing or performance,” even if the Contract was silent on timing (which both
parties agree it is not). See N.C. Gen. Stat. § 25-2-309, cmt. 1.
Redex’s attempts to read terms into the Contract concerning its timing of
performance must be rejected. Redex’s motion for summary judgment on its
counterclaims is accordingly denied.
III. Redex is Not Entitled to Summary Judgment on Soelect’s Claims.
Redex is not entitled to summary judgment on Soelect’s claims, either. As
explained above, Soelect has met its burden to demonstrate genuine disputes of material
fact as to whether: (1) Redex was required to complete its entire performance within the
Contract’s sixteen-month “lead time;” (2) Redex materially breached the Contract by
anticipatorily repudiating that alleged deadline; and (3) Redex’s breach entitled Soelect
to cancel the Contract and recover for damages. These are all questions of fact prope rly
left to a jury because the ambiguities that must be address ed to answer them cannot be
resolved without resorting to disputed evidence. See World-Wide Rts., 955 F.2d at 245. All
three genuine disputes of material fact impact the resolution of Soelect’s claims for breach
of contract and unjust enrichment , just like Redex’s competing counterclaim for breach
of contract.

CONCLUSION
A reasonable jury could return a verdict in favor of Soelect that Redex materially
breached the Contract by unequivocally stating that it would not complete performance
by March 2, 2024. Redex’s attempts to read clarity into barebones and ambiguous
contract language, ignore subsequent evidence of intent , and minimize unfavorable or
conﬂicting evidence does not convince the Court otherwise. So, for the reasons stated in
this Memorandum Opinion and Order, Redex’s motion for summary judgment is
DENIED.
It is SO ORDERED.
This the 10th day of June, 2026.

__________________________________
LINDSEY A. FREEMAN
UNITED STATES DISTRICT JUDGE

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