Terms and Conditions for 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 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”.
  2. 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.
  3. 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.

2.    Orders and Sales.

  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).



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.

14. Limitation of Liability.  



  3. 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.

15. 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.

16.    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.

17.    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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.