GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS 

(BUSINESS TO BUSINESS)



    1. Applicability.  
      1. These general terms and conditions of sale (“Terms”) shall apply to any and all sales of food products (“Products”) marketed by Fabbri USA 1905, LLC (“Fabbri USA” or “Seller”) purchased by the customer (“Buyer”). For the purposes of these Terms and Conditions, the Buyer and the Seller are jointly referred to as the “Parties”. Fabbri USA may also act as the authorized reseller only of certain third-party manufactured equipment (the “Equipment”). It is expressly understood and agreed that Equipment is distinct from Products and is subject to different terms and conditions of sale as set forth in the Equipment Addendum attached hereto as Exhibit 1. 
      2. The Products and Equipment are offered and sold solely to persons or entities acting for purposes within their trade, business, or profession (“Business Customers”). By placing an order, the Buyer represents, warrants, and covenants that: (a) it is a Business Customer; (b) it is not a “consumer” under any applicable federal, state, or local consumer protection law (including, without limitation, New York General Business Law and the California Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.)); and (c) it is purchasing the Products and/or Equipment exclusively for commercial use and not for personal, family, or household purposes.
      3. The Buyer acknowledges and agrees that this is a business-to-business transaction. Accordingly, to the maximum extent permitted by applicable law, statutes and regulations that by their terms apply only to consumer transactions shall not apply. Nothing in these Terms excludes or limits any rights that cannot lawfully be excluded or waived under applicable law.
      4. Seller reserves the right to refuse, suspend, or cancel any order, or terminate any agreement, if it reasonably determines that the purchaser is not a Business Customer or is acquiring the goods and/or services for personal, family, or household use. Seller may require the purchaser to provide reasonable evidence of its business status, including, without limitation, a valid business registration, resale certificate, or tax identification number.
      5. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
      6. The accompanying proforma invoice (the "Proforma Invoice" and these Terms (collectively, this "Agreement") comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
      7. As indicated above, sales of Equipment by Seller are governed by these Terms only as supplemented and modified by the Equipment Addendum. In the event of any conflict or inconsistency between the Terms and the terms of the Equipment Addendum with respect to any sale of Equipment, the Equipment Addendum shall control. For the avoidance of doubt, these Terms which relate specifically to food Products — including without limitation provisions relating to shelf life, temperature, food safety compliance, perishability, freshness, consumption fitness, or food-product-specific regulatory compliance — do not apply to Equipment.
    2. Orders and Sales (offline only).
      1. The Buyer shall order the Products marketed by Seller by submitting a purchase order to the Seller (each an “Order”). The Order shall be issued in writing and be sent to the Seller’s address by e-mail or such other method as may be agreed upon by the Parties. Each Order shall specify for each type of Product: (i) the list of Products ordered identified by their specific product code; (ii) the quantities ordered for each Product; and (iii) the description of Products.
      2. Upon receipt of the Order, the Seller will issue an Order acknowledgment (each an “Order Acknowledgment”) via e-mail, which, in the case of pick-up, shall include the proposed date of availability at Seller’s warehouse, the DIM and weight of the Order, and the price of the Products. In the case of orders to be shipped to Buyer, the Order Acknowledgement shall include the price of the Products, the estimated delivery date and the transportation cost and expenses, if applicable. It is the Buyer’s responsibility to review the Seller’s Order Acknowledgement and immediately notify Seller in writing of any requested modification based on the terms set forth in the Order Acknowledgement. If no such written request for modification is received within twenty-four (24) hours of the Order Acknowledgment, the Seller shall issue the Proforma Invoice. 
      3. Any Order submitted by the Buyer shall be binding, pursuant to these Terms, upon issuance of the Seller’s Proforma Invoice. It is understood that Orders accepted by the Seller cannot be cancelled or amended by the Buyer without the Seller’s written consent.
    3. Delivery.  
      1. The Products will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability. Estimated pick-up and delivery timetables shall be communicated to the Buyer in the Proforma Invoice. In the case of shipments, Seller shall not be liable for any delays, loss, or damage in transit.
      2. Delivery of the Products shall be made using Seller's standard methods for packaging and delivery of such Products. The delivery of the Products shall be made to the location specified in the Proforma Invoice (the “Delivery Location”), subject to the Incoterms® indicated therein, unless otherwise agreed in writing by the parties.  Buyer shall take delivery of the Products promptly, and in any event no later than three (3) days from Seller's written notice that the Products have been delivered to the Delivery Location. Buyer shall provide equipment and labor reasonably suited for receipt of the Products at the Delivery Location.
      3. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order. In the case where not all Products in the Order are available, the Seller shall communicate this in the Order Acknowledgment. Unless otherwise communicated by the Seller, backorders of Products are not available and the Buyer may be required to submit a revised purchase order to reflect the actual availability of Products. 
      4. If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller's notice that the Products have been delivered at the Delivery Location, or if Seller is unable to deliver the Products at the Delivery Location on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
    4. Non-Delivery.  
      1. The quantity of any installment of Products as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
      2. The Seller shall not be liable for any non-delivery of Products unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Products would in the ordinary course of events have been received.
      3. Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
    5. Quantity. Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of any surplus or shortfall and shall pay for such Products the price set forth in the Proforma Invoice adjusted pro rata.
    6. Shipping Terms. Delivery shall be made as specified in Seller’s Proforma Invoice unless otherwise agreed in writing by the Parties. 
    7. Title and Risk of Loss. Risk of loss passes to Buyer in accordance with the designated Incoterms® set forth in the Proforma Invoice. Title to the Products passes to the Buyer upon Buyer’s pick-up of the Products, or delivery of the Products to the common carrier in the case of direct shipments, as set forth in the Proforma Invoice. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
    8. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each of the Parties.
    9. Inspection and Rejection of Nonconforming Products.  
      1. Buyer shall inspect the Products within Five (5) business days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products (as defined hereinafter) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. "Nonconforming Products" means only the following: (i) product shipped is different than identified in Seller’s Proforma Invoice; or (ii) product's label or packaging incorrectly identifies its contents. 
      2. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. If requested in writing by the Seller, Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Products to a facility designated by Seller in writing. If Seller exercises its option to replace Nonconforming Products and has requested that such Nonconforming Products be returned, then Seller shall, after receiving Buyer's shipment of Nonconforming Products, ship to Buyer, at Seller’s expense and risk of loss, the replaced Products to the Delivery Location. 
      3. Buyer acknowledges and agrees that the remedies set forth in Section 9(b) are Buyer's exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 9(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
    10. Price. 
      1. Buyer shall purchase the Products from Seller at the prices (the "Price") set forth in Seller's published price list in force as of the date of Buyer's Order. In the event of any dispute in connection therewith, the Price for the Products set forth in the Proforma Invoice shall be the final, binding Price for the Products. 
      2. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets. 
    11. Payment Terms.  
      1. Buyer shall pay all invoiced amounts due to Seller in accordance with the payment terms set forth in the Seller's Proforma Invoice, and in any event no later than Thirty (30) days from the date thereof. Buyer shall make all payments hereunder in US dollars by ACH, credit card, wire transfer or business check as may be agreed upon with the Seller.
      2. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for Thirty (30) days following written notice thereof.
      3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.
    12. Limited Warranty. 
      1. Seller warrants that the Products (i) that consist of food products will not be adulterated or misbranded within the meaning of the Food, Drug and Cosmetic Act, as amended and (ii) shall be free from faulty workmanship and defective materials. If a "best by" date is indicated on the Products, the foregoing warranty shall expire on the indicated best by date. If a best by date is not indicated, the foregoing warranty shall be limited to a six (6) month period commencing on the date of shipment; in each case provided that the Products has been properly cared for and stored by Buyer, and provided that the Buyer promptly notifies Seller in writing of any warranty claim hereunder within said warranty period.
      2. Seller shall not be liable for a breach of the warranty set forth in Section 12(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Products are defective.
      3.  In the event any Product fails to meet the foregoing warranty within said warranty period, Seller’s sole obligation shall be, in its sole discretion, either (i) to replace the Products; or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Products to Seller. THE REMEDIES SET FORTH IN THIS SECTION 12(C) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(A). 
  •              EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.           
      1. Notwithstanding any other provision in these Terms, Seller makes no warranty of any kind, express or implied, with respect to Equipment. Seller's sole warranty obligation with respect to Equipment is to pass through to Buyer the Manufacturer's Warranty attached hereto as Exhibit 1-A, to the extent such warranty is transferable and covers Buyer as a purchaser from an authorized reseller. Buyer's sole warranty remedy with respect to Equipment is to pursue claims directly under the Manufacturer's Warranty in accordance with the procedures set forth in the Equipment Addendum. No warranty representation made by Seller's employees or agents with respect to Equipment beyond the express terms of the Manufacturer's Warranty shall be binding on Seller.
  • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES WITH RESPECT TO EQUIPMENT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. SELLER MAKES NO REPRESENTATION THAT EQUIPMENT IS FIT FOR BUYER'S PARTICULAR FOOD PRODUCTION PROCESS, REGULATORY ENVIRONMENT, OR OPERATIONAL REQUIREMENTS. BUYER IS SOLELY RESPONSIBLE FOR VALIDATING EQUIPMENT FOR ITS INTENDED USE.
      1. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary contained herein, Seller’s aggregate liability in connection with the sale or provision of any Products, regardless of the form of action giving rise to such liability (whether in breach of warranty, contract, negligence, strict liability or any other theory in contract, tort or otherwise), shall not exceed the amount actually paid by Buyer to Seller for such Products. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. All remedies of Buyer shall be limited exclusively and in lieu of any and all other remedies to those contained in these Terms.
      2. Limitation of Liability.  
      • IN NO EVENT SELLER SHALL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
      • IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID BY BUYER TO SELLER FOR SUCH PRODUCTS SOLD HEREUNDER. 
        1. The limitation of liability set forth in Section 14(b) above shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
      1. Recalls. If Buyer is directed to assist in any suspension of supply or recall of the Products for any reason by the Seller or any governmental authority, Buyer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall. The cost and expense of such suspension or recall will be borne by: (a) Seller, to the extent such costs and expenses are the result of the Seller’s acts or omissions; and/or (b) Buyer, to the extent such costs and expenses are the result of acts or omissions of Buyer, its directors, officers, employees, or contractors.
      2. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
      3. Export Compliance
      1. Buyer acknowledges and agrees that any Products’ delivery made by Seller is subject to compliance with all applicable export control and sanctions laws and regulations ("Export Control Laws"). Under the Export Control Laws, any goods supplied by Seller may not be, directly or indirectly, transferred to any entity or person with whom it is prohibited to entertain a commercial relationship under U.S. or EU legislation or pursuant to an order by any competent authority (“Blocked Person” and, collectively, “Blocked Persons”) or for restricted end uses. 
      2. Buyer represents and warrants not to sell or otherwise transfer the Products to any Blocked Person or to clients that are owned or controlled by, or acting for or on behalf of, directly or indirectly, one or more of such parties.
      3. Buyer represents and warrants not to be a Blocked Person and undertakes to promptly inform Seller if its name appears on U.N., EU, U.S. Sanctions Lists. If the Buyer is or become a Blocked Person, Seller shall be entitled to terminate the Agreement without notice and compensation.
      4. Buyer shall be fully liable to Seller for any consequence arising from the violation of any applicable Export Control Law, including but not limited to the unlawful diversion of use of the Products and/or to the use of the Products resulting in making economic resources available to any Blocked Parties. The Buyer undertakes to transfer this provision on its sub-buyer.
      5. In the event that Seller’s performance is prevented or made unreasonably difficult or commercially uneconomic by the occurrence of one of the following events (each an “Excusing Event”): (a) any change in applicable laws, including the laws of the Italian Republic and/or the European Union, including, but not limited, to the adoption of restrictive measures of any kind; (b) any amendment, extension or revision, or any change in the interpretation, by any court, tribunal or regulatory authority with competent jurisdiction, of any laws existing at the time of execution of this Agreement; (c) failure to obtain any authorization, permit or license for the sale, supply, transfer or export of the products by any competent authority and/or failure to obtain the prior authorization of transfers of funds as provided for in the regulations of the European Union, as in force from time to time, by any competent authority; (d) any other event, whether or not similar to the ones specified above, outside the control of the Party against whom the claim would be otherwise made; then Seller and the Buyer shall consult and agree on the necessary arrangements as well as on the steps to be taken to ensure the regular implementation of the transaction. The fulfillment of the Parties’ respective obligations will be suspended during the consultation period. In case after the consultation it appears that the transaction cannot be further implemented because it has become invalid or unlawful under any applicable law, the Parties shall make in good faith the necessary arrangements for mitigating any possible prejudice. In case the transaction will not be unlawful or invalid per se, but the performance of either one of the Parties becomes impossible or uneconomic, the implementation of the transaction shall be suspended until the Excusing Event terminates and the Parties shall strive to minimize the prejudice determined to each of them by such suspension.
      1. Intellectual Property Rights. 
      1. Buyer acknowledges and agrees that: a) Seller (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Products and any of their component parts; b) any and all Seller's Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; c) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under the Agreement; d) Buyer shall use Seller’s Intellectual Property Rights only in accordance with the Agreement and any instructions of Seller.
      2. For the purpose of these Terms and Conditions “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names; (d) designs; (e) software and firmware; (f) trade secrets, business and technical information and know-how; and (g) all rights, interests and protections that are equivalent or similar to any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
      1. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for sixty (60) days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
      2. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
      3. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
      4. Force Majeure.  No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement, including export controls; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within fifteen (15) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of one hundred and twenty (120) days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon thirty (30) days' written notice.
      5. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
      6. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
      7. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
      8. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
      9. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
      10. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Proforma Invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
      11. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
      12. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction and Survival.




      EXHIBIT 1

      EQUIPMENT ADDENDUM 

      TO 

      FABBRI USA 1905 LLC  GENERAL TERMS AND CONDITIONS OF SALE (BUSINESS-TO-BUSINESS)

      This Equipment Addendum is incorporated into and forms part of the commercial General Terms and Conditions of Sale. This Equipment Addendum governs all sales of Equipment by Seller to Buyer. Buyer acknowledges and agrees that this is a business-to-business transaction and Buyer is a Business Customer (as defined in the Terms). Accordingly, to the maximum extent permitted by applicable law, statutes and regulations that by their terms apply only to consumer transactions shall not apply. Capitalized terms not defined herein have the meanings given to them in the Terms. In the event of any conflict between this Equipment Addendum and the Terms with respect to Equipment, this Equipment Addendum controls. This Equipment Addendum becomes effective upon Buyer's first purchase of Equipment from Seller, whether by execution of a purchase order, online purchase, written acknowledgment, or acceptance of delivery of Equipment. 

      • Definitions. 

      The following definitions apply throughout this Equipment Addendum:


      • "Equipment" means third-party manufactured commercial foodservice equipment units sold by Seller solely in its capacity as an authorized reseller, including Manufacturer-supplied components and accessories included at the time of original sale, as identified by manufacturer model number and serial number on the applicable invoice or order confirmation. Equipment is not a Product. Equipment is manufactured by a third party and Seller is not the designer, engineer, or manufacturer of any Equipment.


      • "Manufacturer" means the third-party entity that designed, engineered, and manufactured the applicable Equipment unit, as may be identified on the invoice or order confirmation or as may be communicated by Seller to Buyer.


      • "Manufacturer's Warranty" means the written limited warranty, if any, issued by Manufacturer covering the Equipment, a current copy of which is attached as Exhibit 1-A. Seller will make reasonable efforts to keep Exhibit 1-A current and will provide Buyer with an updated copy upon written request.


      • "Manufacturer Specifications" means Manufacturer's published installation, operating, maintenance, and approved-use documentation for the applicable Equipment model, as provided to Buyer at or before delivery (and any updates thereto).

      1. Seller acts as Reseller Only; No Manufacturer Relationship


      •  Seller is an authorized reseller of Equipment. Seller is not the manufacturer, designer, engineer, or developer of Equipment and has no ability to control Equipment's design, manufacture, components, or quality. All representations Seller makes regarding Equipment are based on information provided by Manufacturer and are passed through without independent verification.


      • Seller's obligations with respect to Equipment are limited to: (a) accurately representing the scope of the Manufacturer's Warranty; (b) passing through the Manufacturer's Warranty to Buyer in accordance with Section 4(a); and (c) the specific commitments set forth in this Equipment Addendum. Seller has no obligation to repair, replace, or refund Equipment beyond what is expressly set forth herein.


      • Buyer acknowledges that Equipment is third-party manufactured and that Seller's ability to remedy Equipment defects is dependent on Manufacturer's warranty coverage and the availability of Manufacturer’s authorized service providers. Seller is not liable for Manufacturer's failure to honor its warranty, Manufacturer's service delays, or Manufacturer's insolvency.

      1. Online Orders. In addition to Seller’s other direct purchasing channels, Equipment may be purchased by commercial Buyers online via Seller’s website: www.shopfabbriusa.com (the “Online Shop”). Orders of Equipment made by Buyers through the Online Shop are subject to the Online Shop’s Terms of Use and Site Policies (the “Online Shop Terms”) with respect to order placement and acceptance, payment processing, and data handling, but otherwise subject to Fabbri USA’s B2B Terms and Conditions of Sale, as modified and supplemented by this Equipment Addendum. In the event of any conflict or inconsistency, To the extent of any conflict between these terms with respect to a purchase transaction, the B2B Commercial Terms of Sale as modified by this Equipment Addendum shall control. To the extent of any conflict regarding website use, data handling, or privacy, the Terms of Use and Privacy Policy shall control. For the avoidance of doubt, purchase of Equipment via the Online Shop is only available for B2B Buyers and shall not be permitted for consumers who otherwise may have access to the Online Shop for other purchases. Buyer shall be responsible for the accuracy and completeness of all information submitted and for all activity conducted on the Online Shop.

      1. Warranty


      • Pass-Through of Manufacturer's Warranty.  Seller passes through to Buyer the benefit of the Manufacturer's Warranty on the terms set forth in Exhibit 1-A. Buyer is an intended beneficiary of the Manufacturer's Warranty and may assert warranty claims directly against Manufacturer in accordance with the Manufacturer's Warranty terms and the claims process therein. 


      • No Independent Warranty.  Seller makes no independent warranty of any kind with respect to Equipment, express or implied. The Manufacturer's Warranty is the sole warranty applicable to Equipment. Buyer's sole warranty remedy is to pursue claims under the Manufacturer's Warranty. No representation by Seller's employees, agents, or representatives with respect to Equipment beyond the express terms of the Manufacturer's Warranty shall create any warranty obligation on Seller's part.


      • Disclaimer of Implied Warranties.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES WITH RESPECT TO EQUIPMENT ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SELLER MAKES NO REPRESENTATION THAT EQUIPMENT IS FIT FOR BUYER'S PARTICULAR FOOD PRODUCTION PROCESS, REGULATORY ENVIRONMENT, HACCP REQUIREMENTS, OR OPERATIONAL REQUIREMENTS. BUYER IS SOLELY RESPONSIBLE FOR VALIDATING EQUIPMENT FOR ITS INTENDED USE. WHERE APPLICABLE LAW DOES NOT PERMIT COMPLETE DISCLAIMER OF IMPLIED WARRANTIES IN A COMMERCIAL TRANSACTION BETWEEN MERCHANTS, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MANUFACTURER'S WARRANTY PERIOD AS SET FORTH IN EXHIBIT 1-A.

      1. Seller's Specific Commitments to Buyer 

      Notwithstanding Section 4(b) and in addition to the pass-through of the Manufacturer's Warranty, Seller makes the following specific commitments to Buyer:


      • Updated Specifications Provision.  If Seller becomes aware that Manufacturer has issued updated Manufacturer Specifications that materially affect Equipment operation or safety, Seller will use commercially reasonable efforts to notify Buyer and provide updated Manufacturer Specifications.)


      • Recall Notification.  If Seller receives notice of a product recall, safety notice, or corrective action issued by Manufacturer or a government authority with respect to Equipment sold to Buyer, Seller will promptly notify Buyer and provide all available recall instructions. Seller will cooperate with Manufacturer's recall process and assist Buyer in obtaining the recall remedy from Manufacturer.


      • Accurate Representation.  Seller will not make warranty representations to Buyer that exceed the scope of the Manufacturer's Warranty. If Seller's employee or agent makes a warranty representation regarding Equipment that exceeds the scope of the Manufacturer's Warranty, Buyer must notify Seller in writing within thirty (30) days of the representation; any such representation not timely disputed shall be void as against Seller unless confirmed in writing by Seller's authorized representative.


      • Delivery of Manufacturer's Warranty.  Seller will provide Buyer with a copy of the current Manufacturer's Warranty at or before delivery of Equipment. A copy of Manufacturer’s Warranty is attached hereto as Exhibit 1-A. If the Manufacturer's Warranty is updated during the Warranty Period and Manufacturer advises Seller of such update, Seller will provide Buyer with the updated version upon written request.

      1. Delivery, Inspection, and Risk of Loss


      • Delivery Terms.  Equipment is shipped to Buyer by Manufacturer unless otherwise indicated. In certain cases, Equipment may be shipped by Seller. Delivery terms for Equipment may differ from delivery terms applicable to Products and are specified on the applicable order confirmation; provided, however, that in the absence of any such specification, delivery shall be made DAP (Delivered at Place, Incoterms® 2020) to the Delivery Location designated by Buyer at the time the order is placed.


      • Inspection on Delivery.  Buyer shall inspect all Equipment promptly upon delivery. If damage or shortage is visible at the time of delivery, Buyer must: (a) note the specific damage or shortage in writing on the carrier's delivery receipt or bill of lading before signing; (b) photograph the damage to the outer packaging and the Equipment; (c) retain all original packaging materials; and (d) notify sender in writing within five (5) business days of delivery. Failure to provide timely written notice may impair Buyer's ability to make a transit damage claim against the carrier.

      1. Concealed Damage.  Damage not visible upon external inspection of packaging must be reported to Manufacturer in writing within five (5) business days of discovery. Buyer should retain all original packaging for at least ten (10) days following delivery. 

      1. Transit Damage Distinguished from Warranty Claims.  Transit damage is a matter of carrier liability and is not covered by the Manufacturer's Warranty or this Equipment Addendum. Seller will cooperate in Buyer's transit damage claim to the extent reasonably necessary, but Buyer understands that shipment of Equipment is coordinated by Manufacturer and Buyer's primary recourse for transit damage is against the carrier.

      1. Title and Risk of Loss.  Risk of loss passes to Buyer in accordance with the designated Incoterms® set forth in the Proforma Invoice or in the applicable order confirmation in the case of sales of Equipment made via the Online Shop. Title to the Equipment passes to the Buyer upon delivery of the Equipment to the common carrier in the case of direct shipments, unless otherwise specified in the Proforma Invoice or in the order confirmation in the case of sales of Equipment made via the Online Shop.

      1. Authorized Resellers. Equipment purchased hereunder is intended for Buyer's own internal business use and may not be resold or redistributed to third parties for commercial gain. This restriction does not apply to Buyers whose ordinary course of business includes the distribution or resale of equipment of the type sold hereunder. Seller reserves the right to decline future orders from any Buyer reselling Equipment in a manner Seller reasonably determines to be detrimental to its distribution relationships.

      1. No Returns Policy for Equipment. Returns of Equipment are not permitted. It is understood that commercial equipment depreciates immediately upon installation and cannot be restored to new condition. Buyer acknowledges and agrees that unconditional returns are not available for Equipment. Buyer remedies such as repair or replacement for defective equipment shall be as set forth in the Manufacturer’s Warranty set forth in Exhibit 1-A. 

      1. LIMITATION OF LIABILITY

      1. Liability Cap.  Seller's total cumulative liability to Buyer arising out of or related to any Equipment sale, whether in contract, tort, strict liability, statute, or otherwise, shall not exceed the original purchase price paid by Buyer to Seller for the specific Equipment unit giving rise to the claim. This cap applies separately to each Equipment unit and does not aggregate across multiple Equipment purchases or across Equipment and Product purchases.

      1. Exclusion of Consequential and Other Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO EQUIPMENT OR THIS EQUIPMENT ADDENDUM, REGARDLESS OF THE THEORY OF LIABILITY AND REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION INCLUDES WITHOUT LIMITATION: (i) LOSS OF PROFITS, REVENUE, OR BUSINESS OPPORTUNITY; (ii) LOSS OF USE OR BUSINESS INTERRUPTION; (iii) SPOILAGE OR LOSS OF FOOD PRODUCTS, INGREDIENTS, OR PERISHABLE INVENTORY CAUSED BY EQUIPMENT MALFUNCTION OR FAILURE; (iv) FOOD SAFETY REMEDIATION COSTS, REGULATORY PENALTIES, OR HEALTH DEPARTMENT SANCTIONS; (v) COSTS OF SUBSTITUTE OR TEMPORARY REPLACEMENT EQUIPMENT; (vi) DAMAGE TO OTHER PROPERTY CAUSED BY EQUIPMENT MALFUNCTION; AND (vii) CLAIMS OF THIRD PARTIES ARISING FROM EQUIPMENT MALFUNCTION.

      1. The exclusion of consequential and other damages in Section 9(b) is an independent and severable limitation. It survives any finding that the exclusive warranty remedy provided under this Equipment Addendum or the Manufacturer's Warranty has failed of its essential purpose, and applies regardless of whether any remedy provided herein is deemed to have failed.

      1. Buyer acknowledges that the limitations and exclusions in this Section reflect a reasonable allocation of risk between commercial parties, Seller’s limited role as an authorized reseller and that Seller's pricing of Equipment reflects these limitations, and that Seller would not sell Equipment on the terms set forth herein absent these limitations.

      1. Recalls and Safety Notices

      1. Seller's Recall Obligations.  If Seller receives notice of a product recall, safety notice, or corrective action from Manufacturer or a government authority with respect to Equipment sold to Buyer, Seller will promptly notify Buyer and provide all available recall instructions. Seller will cooperate with Manufacturer's recall logistics and will facilitate Buyer's access to the recall remedy provided by Manufacturer.

      1. Buyer's Recall Obligations.  Upon receiving a recall notice, Buyer shall: (a) cease use of affected Equipment if directed to do so; (b) cooperate with all inspection, retrieval, repair, or replacement procedures specified in the recall notice; (c) provide Seller and Manufacturer with access to affected Equipment; and (d) promptly notify Seller if Buyer becomes independently aware of any safety incident, injury, or government inquiry involving the Equipment.

      1. Recall Remedy.  Recall remedies (repair, replacement, or refund) are provided by Manufacturer in accordance with applicable law and Manufacturer's recall program. Seller will assist Buyer in accessing and receiving the recall remedy from Manufacturer. Seller's liability in connection with a recall is limited to its obligations under this Section 10 and does not otherwise expand Seller's liability under this Equipment Addendum. Nothing in this Equipment Addendum limits any right available to Buyer under applicable federal or state recall or safety laws.

      1. Regulatory Compliance

      1. Equipment Certifications.  Any product certifications applicable to Equipment (including NSF, UL, CE, or similar) are certifications held by Manufacturer, not Seller. Seller passes through information regarding such certifications as provided by Manufacturer but makes no independent certification representation. Buyer should verify current certification status with Manufacturer or the applicable certification body.
      2. No Food Safety Warranty.  Seller makes no representation that Equipment, as installed or operated by Buyer, meets Buyer's obligations under FSMA, HACCP, applicable USDA regulations, or state and local health department requirements. Buyer is solely responsible for food safety compliance in its operations.
      3. Installation Compliance.  Buyer is responsible for ensuring that Equipment installation complies with all applicable building, electrical, plumbing, and mechanical codes and all applicable regulatory requirements in Buyer's jurisdiction. Seller has no responsibility for site readiness or installation compliance.

      1. Indemnification

      1. Manufacturer Defects.  Seller has no indemnification obligations to Buyer with respect to claims, losses, or liabilities arising from defects in the design, manufacture, or materials of Equipment. Seller retains all rights of indemnification, contribution, and subrogation against Manufacturer for Equipment-related claims that are attributable to manufacturing defects, and Buyer agrees to cooperate with Seller in pursuing such rights against Manufacturer, including providing reasonable access to the Equipment and relevant records.

      1. Buyer Indemnification of Seller.  Buyer will defend, indemnify, and hold harmless Seller from and against any third-party claims, losses, damages, and reasonable attorneys' fees arising from: (a) Buyer's misuse, abuse, or negligent operation of Equipment; (b) Buyer's failure to comply with Manufacturer Specifications or applicable codes; (c) Buyer's unauthorized modification or repair of Equipment; or (d) Buyer's failure to comply with a recall or safety notice issued by Manufacturer or a government authority.

      1. Pricing and Payment

      1. Equipment is priced separately from Products. Equipment pricing is not subject to Product promotional pricing programs, volume discount structures, or rebate arrangements applicable to Products, unless Seller expressly confirms in writing that a Product pricing program applies to a specific Equipment purchase.

      1. Payment Terms.  Equipment payment terms may differ from Product payment terms. All Equipment invoices must be paid in full prior to shipment unless otherwise expressly stated in the applicable order confirmation. Each Equipment purchase constitutes a separate invoice and payment obligation from any Product purchases. Any permitted delayed payments are subject to the late payment provisions set forth in the Terms.

      1. Buyer may not offset, deduct, or withhold amounts owed for Equipment purchases against amounts owed for Product purchases, or vice versa. Each Equipment invoice is an independent payment obligation. Disputes regarding Equipment do not entitle Buyer to withhold or reduce payment on Product invoices, and disputes regarding Products do not entitle Buyer to withhold or reduce payment on Equipment invoices.

      1. Force Majeure In addition to any force majeure events specified in the Terms, Seller shall not be in breach of any Equipment delivery, service, or availability obligation to the extent such breach is caused by: Manufacturer production disruptions or supply chain failures; discontinuation of Equipment models by Manufacturer; Manufacturer insolvency or cessation of business; or parts or component shortages affecting Manufacturer's production. Seller will provide Buyer with written notice of any such event promptly upon becoming aware of it and will use commercially reasonable efforts to identify a delivery date, alternative equipment, or other resolution.

      1. General Provisions

      1. Integration with Terms.  This Equipment Addendum is incorporated into and forms part of the Terms. Except as expressly modified by this Equipment Addendum, all Terms remain in full force and effect with respect to Equipment. In the event of conflict, this Equipment Addendum controls with respect to Equipment.

      1. Entire Agreement.  This Equipment Addendum and the Terms, together with the Manufacturer's Warranty attached as Exhibit 1-A, constitute the entire agreement between Seller and Buyer with respect to Equipment and supersede all prior representations, warranties, and agreements regarding Equipment.

      1. Amendment. Seller reserves the right to update this Equipment Addendum from time-to-time and will make any updates available to Buyer; updates apply only to Equipment ordered after the effective date of the update.

      1. Severability.  If any provision of this Equipment Addendum is held invalid or unenforceable, it shall be modified to the minimum extent necessary to make it enforceable, and all remaining provisions will continue in full force. The exclusion of consequential damages in Section 9(b) is expressly severable and survives independently.

      1. In the event of conflict among the following documents with respect to Equipment: (1) this Equipment Addendum controls over (2) the Terms, which controls over (3) any purchase order, order confirmation, or other ordering document. Buyer's standard purchase order terms do not modify this Equipment Addendum.

      EXHIBIT 1-A

      MANUFACTURER’S WARRANTY

      !