Terms and Conditions of Sale

“ S.L. Fusco” or “Seller” wherever used shall mean S.L. Fusco, Inc.

• Warranty. The seller warrants that at shipping date, the goods sold by Seller (“Goods”) conform to the specifications or other description referred to on the face hereof.

EXCEPT AS PROVIDED IN THE PRECEDING PARAGRAPH, S.L. FUSCO MAKES NO EXPRESS WARRANTY, AND EXPRESSLY EXCLUDES ANY AND ALL IMPLIED WARRANTIES. INCLUDING, WITHOUT LIMITATION. ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY PURPOSE OR USE.

The above warranty extends only to Buyer, and S. L. FUSCO makes no warranty to any other person.

• CLAIMS. All claims by Buyer that the Goods do not conform to Buyer’s agreement with S.L. FUSCO must be made in writing, upon discovery and, in any event, within thirty (30) days after delivery or receipt of the Goods by Buyer, a period of time Buyer expressly agrees is reasonable. If Buyer does not make a claim within thirty (30) days, buyer shall be deemed to have irrevocably accepted the Goods and is barred from any remedy therefore.
• BUYER’S REMEDIES – LIMITATION OF LIABILITY .
• Buyer’s exclusive remedy and S.L. FUSCO’s sole obligation under the warranty (Section 1), under any other warranty, express or implied or otherwise, is limited to S.L. FUSCO’s replacement of defective Goods without charge, and paying reasonable transportation costs for the return of the defective Goods and delivery of the replacement goods. If S.L. FUSCO cannot make replacement, then its sole obligation shall be returning Buyer’s purchase price to the extent paid by Buyer when Buyer has returned the Goods (at S.L. FUSCO’S request and expense). All allegedly defective Goods must be held by Buyer pending written disposition instructions from S.L. FUSCO. Buyer may not return Goods to S.L. FUSCO without prior written consent. S.L. FUSCO reserves the right to require Goods to be returned for inspection at the S.L. FUSCO warehouse and to inspect the Goods wherever located and, if in use, under the conditions of use. Risk of loss or damage in transit on Goods returned to S.L. FUSCO and while on S.L. FUSCO’s premises, shall be borne by Buyer.

S.L. FUSCO IN NO EVENT SHALL BE RESPONSIBLE, WHETHER UNDER ITS CONTRACT WITH BUYER, IN TORT, OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGE. WHETHER OR NOT SUCH DAMAGE OCCURS OR IS DISCOVERED BEFORE OR AFTER REPLACEMENT OR REFUND AND WHETHER OR NOT SUCH DAMAGE IS CAUSED BY S.L. FUSCO’S NEGLIGENCE

• Buyer’s exclusive remedy, whether in contact, in tort or otherwise, and S.L. FUSCO’S sole obligation for deliveries or non-deliveries which are not excused pursuant to Section 6, below, (Shipment—Risk of Loss) or Section 10, below, (Force Majeure) shall be limited to monetary damages, which damages shall not exceed the total amount of the paid contract price for any Goods delivered late or not delivered.
• The period of limitations for any action because of (i) defects, or (ii) late deliveries or non-deliveries, shall be limited to a period of one (1) year, commencing, with respect to item (i), the date allegedly defective Goods were delivered and, with respect to item (ii), on the shipment due date.

• TERMS. All prices are F.OB. destination less discounts shown on each invoice. No Buyer’s charges for labor, defective quality, quantity shortages, freight allowances, or any other reason shall be allowed as a credit unless specifically authorized in writing by an officer of S.L. FUSCO. Unless otherwise specified in writing by an officer of S L FUSCO, payment shall be due in full in accordance with the terms shown on the face of each invoice and, when not shown on the face of the invoice, shall be due in full thirty (30) days of the date of S.L. FUSCO’S invoice. All past due amounts shall bear interest and service charges at the rate of 1 ½% per month or the maximum rate permitted by statute on the unpaid balance. When payment is agreed to be in installments, failure to pay any installment when due shall render the entire unpaid balance immediately due and payable.
• PAYMENT. Invoices are due and payable in full without right of setoff within the prescribed period stated on the face hereof. Invoices for products or service delivered under this order are payable only in U.S. funds, unless specifically stated differently on the invoice. Credit and delivery of products shall be subject to the approval of the Seller to whom all bills are payable and who reserves the right to alter the terms and set a limit of credit. Each shipment shall be treated as a separate and independent contract; but if the Buyer shall fail to fulfill the terms of payment under this or any other contract, the Seller at its option may defer further shipments, until payment shall have been made.
• TAXES. Buyer agrees to pay S.L. FUSCO any applicable customs duties, sales tax, use tax, gross receipts, occupational, excise or other taxes, assessments charges or fines imposed by any federal, state or local authority in connection with the sale of S.L. FUSCO’s Goods.
• SHIPMENT—RISK OF LOSS. Shipping dates are approximate. S.L. FUSCO Shall incur no liability for failure to ship on due dates. All deliveries are F.O.B. destination, unless otherwise stated on the face of S.L. FUSCO’s invoice and/or quotation. Risk of loss passes to Buyer when the Goods are delivered from the S.L. FUSCO warehouse. Claims for non-delivery, loss or damage in transit, and concealed damage must be made by Buyer against the carrier or directly to S.L. FUSCO, when applicable. Shipping and routing methods are at S.L. FUSCO’s discretion, unless otherwise stated by Buyer on his order form. Reasonable storage charges for delays in shipment at Buyer’s request shall be made, and such storage shall be at the buyer’s risk.
• QUANTITIES DELIVERED. Buyer will accept and pay for the actual quantity of Goods delivered at the contract price. Where actual quantities delivered differ from invoiced quantities, Buyer shall notify the S.L. FUSCO warehouse within twenty four (24) hours and request S.L. FUSCO to count and verify the delivered quantities.
• ACCEPTANCE AND CANCELLATION OF ORDERS. All orders shall only be accepted by a S.L. FUSCO designated representative. Buyer may only terminate an order by written notice of cancellation plus acceptance of cancellation by a designated representative of S.L. FUSCO. In no circumstances will a cancellation be allowed by S.L. FUSCO for Non-Stock/Custom purchased items.
• FORCE MAJEURE. A “basic assumption” of this sale, as this term is used in the applicable State Commercial Code, is the nonoccurrence of fire, explosion, flood, inclement weather, (snow, ice, rain, hail, etc. ), riot, workmen strikes, utility failures, shortages of material or labor or facilities, frieght embargo, transportation delay, breakdowns, accidents, acts of God or public enemy, or any other cause beyond S.L. FUSCO’s reasonable control which prevents or delays performance, and delivery or non-delivery, shall be excused, if delivery is made impractical by reason for the occurrence of any of the above.
• SAMPLES. Where manufacturer samples (test items) are submitted to Buyer for approval before S.L. FUSCO’s placement of an order on Buyer’s behalf, if notice of rejection is not received within thirty (30) days after date of submission of the sample, delivery shall be deemed approved by Buyer and Buyer shall pay for the Goods delivered.
• GENERAL PROVISIONS .
• This agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California. Buyer hereby submits to the personal jurisdiction of the courts of said state for any disputes arising hereunder.
• The invalidity, in whole or in part, of any provision in this agreement shall not affect the validity and enforceability of any other provision.
• In any litigation arising hereunder or otherwise in connection with this sale, the prevailing party shall be entitled to attorney’s fees in addition to costs and necessary disbursements.
• This document with all attachments constitutes the entire agreement of the parties, and is intended as a final, complete and exclusive expression of their agreement. This agreement supersedes all prior representations, understandings and agreements.
• The paragraph headings herein are for convenience only. They form no part of this agreement and in no way alter or affect the meaning thereof.
• S.L. FUSCO’s failure to insist upon performance of any term or terms hereof shall not be construed as a waiver or relinquishment of S.L. FUSCO’s right to such performance, and Buyer’s obligation shall continue in full force and effect.